Court on ministry's appeals: Parents can get SEA transcripts..but not CAPE

Marked Secondary Entrance Assessment (SEA) transcripts can be disclosed by the Education Ministry to parents who request them. But the same does not not apply to Caribbean Advance Proficiency Examination (CAPE) transcripts.

This was the ruling of the Appeal Court last week in three consolidated appeals brought by the Education Ministry.

In their ruling, Justices Nolan Bereaux, Mark Mohammed and Peter Rajkumar dismissed two of the ministry’s appeals which related to two separate requests by parents for their children’s marked SEA transcripts.

The third appeal, which was upheld, related to a request by a parent for his daughter’s CAPE transcript.

The judges held that the SEA exam was the subject of a written agreement between the ministry and the Caribbean Examination Council (CXC), but the CAPE exam was not the subject of a comprehensive written agreement. CXC sets and grades the annual examinations.

In separate requests under the Freedom of Information Act (FOIA), three parents requested their children’s exam transcripts to query the results.

Alicia Dalipsingh and Roger Simon applied for their children’s SEA transcripts while Nicholas Lue Sue requested his child’s CAPE transcripts.

Their requests were denied by the ministry on the grounds that CXC had possession of the transcripts. Their lawsuits were upheld in the High Court

At the High Court, the judges who upheld the parents’ lawsuits were heavily critical of the ministry for refusing to disclose them.

In submissions before the Court of Appeal, attorneys for the ministry argued when the FOIA requests came in for the SEA and CAPE exam scripts, they had been sent to CXC since the marking and reviews were completed and CXC retained the scripts. By that time, they had been destroyed.

Douglas Mendes, SC, who appeared for the ministry, said the court will have to determine if the exam scripts can be considered “official documents” under the FOIA and if there is an enforceable legal right to access, particularly the SEA scripts.

“Even if there is a legal right to the scripts, the ministry cannot enforce it,” Mendes said.

He pointed to provisions of the Caribbean Examinations Council (Privileges and Immunities) Act, which includes an arbitration clause which protects the Barbados-based entity from legal action.

He said in the case of the SEA scripts, had the matter gone to arbitration and the students were successful, then it was expected CXC would comply. However, there is no such provision as it related to the CAPE examination.

Mendes conceded by virtue of the arbitration clause, it could lead to an enforceable legal right.

Representing one of the SEA parents, Anand Ramlogan, SC, argued there was a flaw in the argument that the ministry did not have a right to access the scripts because that was CXC’s right.

He said it would be prejudicial to good public administration if students did not have access to their scripts when the ministry’s mandate of promoting education under the Education Act was considered. He also raised the issue of copyright.

Rajkumar, who wrote the decision, said the ministry’s assertion it had no right to the transcripts under the SEA agreement was “incompatible with its rights of access to material under that agreement after the transcripts have been marked.”

He said the ministry had a right to the SEA transcripts under the SEA agreement with CXC to access them after they were marked. “It is not the case that those marked transcripts were forever and for all purposes unavailable to it”

Rajkumar also said the ministry had the power to prevent the destruction of the marked scripts by October 31, of the year the request for them was made. He said the ministry could not rely on the argument that the alleged destruction prevented it from being able to disclose them to parents who requested them since “it permitted the document, subject to the request, to be destroyed.”

“That is because it made no attempt whatsoever to communicate the instant request to CXC.”

He also said the SEA agreement provided a right for the ministry to request materials from CXC, which could include individual scripts.

In Dalipsingh’s lawsuit, he said, “The destruction of that document was the result of waiting until January of the year following the request to even respond in substance to the request.”

He also added, “Therefore, the destruction of the transcripts could not possibly be a reason in this case for not providing it. Under the SEA agreement, the ministry was in a position to require CXC to extend the time for the destruction of SEA transcripts or at least that particular SEA transcript, or transcripts in which FOIA requests were pending.

“Permitting those transcripts to be destroyed was inexplicable, inexcusable and for those reasons irrational.”

He held that the decision by the ministry did amount to a breach of the FOIA, adding also that the transcripts were “official documents within the power of the ministry” as defined by the act.

As it related to Simon’s claim, Rajkumar also held that the ministry also had a right to the marked transcripts and that the reasons it provided for non-compliance with the request were “equally invalid.”

However, in relation to the CAPE appeal, he said even if the ministry had an identifiable right to marked transcripts, in the absence of a written agreement, any right would not be enforceable in the absence of an arbitration clause similar to the one in the SEA agreement.

Also representing the ministry were Michael Quamina, Natoya Moore and Sara Muslim while Ken Samlal, Jared Jagroo and Natasha Bisram represented Dalipsingh; Colin Selvon represented Simon and Richard Freeman and Nirad Ramrekersingh represented Lue Sue.