Thursday, 17 September 2015 15:23
UBC Ordered to Release Admissions Criteria
A recent decision of the BC Office of the Information and Privacy Commissioner (OIPC) sheds new light on the interpretation of sections under BC’s Freedom of Information Protection of Privacy Act, RSBC 1996, c. 165 (FIPPA). FIPPA governs public bodies and sets out the access and privacy rights of individuals in relation to the public sector. Watson Goepel LLP lawyers Serena K.H. Lam and Andrew N. Epstein acted as counsel for the successful applicant.
In 2015 BCIPC 52, the OIPC ordered UBC to disclose documents in the nature of scoring rubrics used to assess the personal profiles of applicants to UBC faculties through its broad-based admissions process. The scoring rubrics were originally requested by a journalist at a student newspaper at UBC. When UBC declined to provide the journalist with the scoring rubrics, he applied to the OIPC to review UBC’s decision.
University Admissions Process and FIPPA
The OIPC’s inquiry focused on the following issues: Firstly, whether the requested records were excluded from the scope of FIPPA under s. 3(1)(d) and/or s. 3(1)(e) of the Act; and if not, whether UBC was authorized to refuse access to the requested records under s. 13 and/or s. 17 of FIPPA.
What Records are Excluded from a FIPPA Request and Interpretations of “record of a question” and “teaching materials”
On the first set of issues, the adjudicator found that the requested records were not excluded from the scope of FIPPA under either of s. 3(1)(d), which excludes “a record of a question that is to be used on an examination or a test” or s. 3(1)(e), which excludes “a record containing teaching materials or research information” of faculty members, teaching and research assistants, and other persons teaching or carrying out research at the post-secondary institution. Notably, this decision was the first in BC to consider and interpret the terms “record of a question” in s. 3(1)(d) and “teaching materials” in s. 3(1)(e) of FIPPA. Section 3(1)(d) was found ultimately not to apply because the scoring rubrics did not fall under the ordinary meaning of “question” and because they did not contain the actual personal profile questions or allow them to be inferred by context. Section 3(1)(e) was also found not to apply based on the fact that the scoring rubrics could not be considered teaching materials or resources used to deliver instruction or to assist and support student learning.
Other Grounds for Refusal by Public Bodies to Disclose Documents
Once the adjudicator found that the scoring rubrics were not excluded from the scope of FIPPA under ss. 3(1)(d) or (e), the next step was to consider if UBC could refuse to disclose the requested records under s. 13 or s. 17. Section 13 allows public bodies to refuse to disclose information that would reveal advice or recommendations developed by a public body or Ministry. Section 17 allows public bodies to refuse to disclose information that could reasonably be expected to harm its financial or economic interests.
Sections 13 and 17 of FIPPA Insufficient Grounds to Refuse Disclosure of Scoring Rubrics on Admissions Profiles
On this second step, the adjudicator found that UBC was not entitled to refuse disclosure under either s. 13 or 17. Section 13 was found not to apply because the scoring rubrics were not found to constitute advice or recommendations to its readers (ie: the markers/scorers of the personal profiles on behalf of the university), but rather, directions to the readers containing mandatory criteria to assess the personal profiles. Section 17 was also found not to apply based on the fact that there are no ‘correct’ answers to the personal profile questions, so the scoring rubrics could not reveal answers to the personal profile questions in a manner that would diminish the predictive value of the broad-based admissions process. Further, there was insufficient evidence to support a finding of harm to the public body’s financial or economic interests.
In the result, the adjudicator found in favour of the applicant and ordered UBC to provide copies of all the requested records to the applicant. The decision in full can be found HERE:
If you require assistance with any privacy law matters, or want more information about the process please contact Serena K. H. Lam at Watson Goepel LLP.