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Document
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M-1044
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Institution/HIC
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Kent County Board of Education
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Summary
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BACKGROUND: A student took a multiple choice Biology test in December 1994 at a highschool run by the Kent County Board of Education (the Board). After the testwas marked by her teacher, it was returned to the student, at which time it wastaken up in class. Following the class, the student advised the teacher thatthe test contained several marking errors and returned the test to the teacher. The teacher subsequently alleged that the student had cheated while theanswers to the test were taken up in class. Following this accusation, thestudent claimed that the teacher falsely altered the test answers. The Board retained the original test paper and at some later date had thepaper examined by a handwriting expert. The expert prepared a report which wasfavourable to the Board and teacher's position. NATURE OF THE APPEAL: Counsel for the student and her parents (the appellants) submitted thefollowing three-part request to the Board under the Municipal Freedom ofInformation and Protection of Privacy Act (the Act ): Part 1The original answer sheet for a multiple choice test, page I for[the student], dated December 9, 1994; Part 2An original answer page for a test marked "Essay Questions andProblems" (page 12) for [the student] dated 1994 12; Part 3An answer sheet (photocopy) for a multiple choice test (page I) for[the student] dated December 9, 1994. Counsel indicated that he was requesting these records for the purpose ofhaving them examined by an expert of the appellants' choice. The Board located the records which it considered to be responsive to therequest and granted access to a copy of the record responsive to Part 3. TheBoard denied access to the originals requested in Parts 1 and 2 pursuant tosection 23(2) of the Act , on the basis that release of the originaldocuments would not be reasonably practicable. The Board did not claim that anyexemptions in sections 6 through 15 apply and indicated that arrangements couldbe made for the appellants to view the original documents at the Board'ssolicitor's offices. In appealing this decision, the appellants' counsel contends that it isessential that his clients have the opportunity to have the original test papersexamined by a handwriting expert of their choice to determine which individualaltered the answers on it. Counsel indicates further that it is necessary thatthe documents be examined at the offices of the handwriting expert due to thenature of the technical examination and the equipment which is required by theexpert. The appellants provided a letter written by the expert in which heexplains why he cannot remove his equipment from his premises to the Board'soffices and thus would be unable to conduct a full examination of the records. Counsel also indicates that the request contemplated that the documents be sentdirectly by the Board to his clients' expert and returned directly to the Boardby the expert upon completion of his analysis. During mediation, the appellants' counsel indicated that the copy of theanswer sheet, which was provided to the appellants in response to Part 3 of therequest, was not responsive to the request. He clarified that this part of therequest was for the particular photocopy of the answer sheet made by the teacherdirectly after the test was marked. Counsel states that this record is referredto as document K3 on page 2 of the report dated March 1, 1996, prepared for theBoard by its handwriting expert. A Notice of Inquiry was provided to the appellants and the Board. Representations were received from both parties. During this stage, theappellants and the Board agreed to exchange representations. Following theinitial exchange, both parties provided supplemental representations to thisoffice. RECORDS: The records at issue in this appeal consist of the original answer sheetsreferred to in Parts 1 and 2 of the request, as well as the specific photocopyof the answer sheet referred to in Part 3, as clarified above. With respect to Part 3 of the request, the Board was asked to confirmwhether it has the particular document referred to by counsel in its custody orcontrol. If the Board does have a copy of the original photocopy made by theteacher, it was asked whether its decision regarding the method of access (ie. acopy of the original copy) similarly applies to this record. In its representations, the Board indicates that it has conducted a searchfor this particular document and has been unable to locate it. Thereasonableness of the Board's search for records was not raised as an issue inthis appeal, and accordingly, I will not consider this issue further. ISSUES: Two issues are raised in connection with this appeal. The first relates tothe authority of the Commissioner's office to review the head's decision torequire examination on-site of an original record. The second issue concernswhether the Board's decision to deny the appellant an opportunity to examine therecords in the manner requested was in accordance with the Act . DISCUSSION: AUTHORITY OF COMMISSIONER TO REVIEW THE HEAD'S DECISION UNDERSECTION 23 OF THE ACT In its representations, the Board submits that the Commissioner does nothave the authority to review the head's decision with respect to access to theoriginal documents, in response to the appellants' request to examine therecords off-site. The Board argues that the Commissioner cannot order the Boardto relinquish control over the documents by permitting the appellants' expert totake possession of them for the purposes of examination. The Board refers to section 1 of the Act , and states that thecentral purpose of the Act is, in part, to provide "a right ofaccess to information " [emphasis added]. The Boardsubmits that section 23 of the Act sets out two methods by which arequester has a right to obtain access to information. Section 23 of the Act reads: (1)Subject to subsection (2), a person who is given access to a record ora part of a record under this Act shall be given a copy of the record or partunless it would not be reasonably practicable to reproduce it by reason of itslength or nature, in which case the person shall be given an opportunity toexamine the record or part. (2)If a person requests the opportunity to examine a record or part and itis reasonably practicable to give the person that opportunity, the head shallallow the person to examine the record or part. (3)A person who examines a record or a part and wishes to have portions ofit copied shall be given a copy of those portions unless it would not bereasonably practicable to reproduce them by reason of their length or nature. In this regard, the Board states that it must either (1) give a copy of the record to the requester (subject to the limitations contained inthe section) [emphasis added], or (2) grant the requester an opportunity toexamine the original. In this case, t
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Legislation
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Subject Index
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Published
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Nov 25, 1997
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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