Stephanie Raethel v Director General, Department of Education and Training [1999] NSWADT 108 (9 November 1999)

Last Updated: 16 November 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Stephanie Raethel -v- Director General, Department of Education and Training [1999] NSWADT 108

DIVISION: General

APPLICANT:

Stephanie Raethel

RESPONDENT:

Director-General, Department of Education and Training

FILE NUMBERS: 993052

HEARING DATES: 04/08/99

SUBMISSIONS CLOSED: 16/08/1999

DECISION DATE: 09/11/1999

JUDICIAL MEMBER: Judge K P O'Connor President

LAY MEMBER:

LAY MEMBER:

APPLICANT KEYWORDS: Review of decision to refuse to grant access to documents

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Freedom of Information Act 1989

APPLICANT REPRESENTATIVE: R Lancaster of counsel

RESPONDENT REPRESENTATIVE: P Singleton, Solicitor Advocate, Crown Solicitor

ORDERS: 1. The decision of the agency refusing to disclose the UAI data is affirmed.

2. The decision of the agency refusing to disclose the HSC mean scaled results is set aside. The agency is directed to release those results to the applicant.

DECISION:

1 This review application is made under s 53 of the Freedom of Information Act 1989 (the FOI Act).

2 The applicant is a journalist with The Sydney Morning Herald. She seeks access to information about Higher School Certificate results held by the Department of Education and Training (`the agency'). The present form of her request, settled in consultation with the agency, is for the following two categories of documents:

(i) The estimated mean scaled results in Mathematics, English and Science in the Higher School Certificate (`HSC') (1997) by school system (referred to below as `the HSC mean scaled results request')

(ii) The average Universities Admission Index (`UAI') by :

(a) school system

(b) school type

(c) Department of Education and Training School district

(d) school

(collectively referred to below as `the UAI data request').

3 The history of this application is long and tortuous. The applicant's first application was a very wide one made on 22 October 1997. It requested `a listing of all documents held or stored in any database under or within the control of [the agency] relating to the 1996 Higher School Certificate'. It was subsequently replaced by a fresh application made on 26 November 1997 being for:

`(a) the unit record data from the Board of Studies plus enhancements from the UAC system

(b) the integrated database which has been developed under strict privacy guidelines'.

4 That request was refused on 16 December 1997. There was a request for reconsideration but it would seem that no internal review was conducted. There has been an investigation during 1998 by the Ombudsman's office of complaints by the applicant relating to the agency's handling of the request. The Ombudsman's office expressed criticism of the way in which the agency had handled the requests (see Ombudsman's office letter dated 4 May 1998). Despite the efforts of that office, the parties were not able to resolve all issues in dispute.

5 As I understand the matter, the present form of her application is a revised version of her original application. Those revisions have occurred after consultation between the applicant and the agency. There was no objection by the agency to the Tribunal proceeding to deal with the request on the revised basis.

6 As a consequence the agency has conveyed to the applicant its reasons for refusal within the framework of a Tribunal proceeding. This is clearly a less than desirable situation. The scheme of merits review legislation generally, and Freedom of Information legislation in particular, is to place a duty on agencies to articulate their reasons for refusal at an early stage and in reasonable detail. This duty is intended to foster primary decision-making of quality, to promote accountability and to serve wider objectives relating to the relationship between governors and the governed. In the present context early provision of detailed reasons would have allowed for an opportunity for reconsideration to occur at agency level without the formality, expense and inconvenience of a public hearing.

Legislation

7 In relation to the HSC mean scaled results request the agency relies on the exemption contained in cl 7 of Schedule 1 of the FOI Act (the business affairs exemption). As relevant, clause 7 provides:

"7 Documents affecting business affairs

(1) A document is an exempt document:

(a) ...

(b) ...

(c) if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter concerning the business, professional, commercial or financial affairs of the agency or other person by or on whose behalf an application for access to the document is being made."

8 In relation to the UAI data request the agency contends that it is not bound to deal with the request as the agency has a general exemption from the operation of the FOI Act in relation to the documents requested: Schedule 2 of the FOI Act, exemption referring to the Department of Training and Education Co-ordination.

9 Schedule 2 is made under s 9 of the FOI Act which provides:

"9 Certain bodies etc exempt from operation of Act

Any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act."

10 The exemption that is relevant was inserted into Schedule 2 by the Education Reform Amendment Bill 1997 and refers to:

"The Department of Training and Education Co-ordination - functions relating to the storing of, reporting on or analysis of information with respect to the ranking or assessment of students who have completed the Higher School Certificate for entrance into tertiary institutions."

(The Department of Training and Education Co-ordination has now been absorbed into, and replaced by, the Department of Education and Training.)

11 To provide context it is helpful to refer to another exemption inserted into Schedule 2 of the same Bill referring to use by Universities of HSC information. Its terms are:

"Universities - functions relating to dealing with information with respect to the ranking or assessment of students who have completed the Higher School Certificate for entrance into tertiary institutions."

12 Also relevant to the application are provisions of the Education Act 1990 (the Education Act) and the Education Regulation 1996 (the Education Regulation).

13 The Education Act places restrictions on the publication of basic skills testing information and information relating to Higher School Certificate examinations or other assessments.

14 Section 18A of the Education Act, as material, provides:

"18A Publication of results of certain tests

(1) The regulations may make provision for or with respect to the extent to which the results of:

(a) ...

(b) ... Higher School Certificate examinations or other assessments,

may be publicly revealed or must be kept confidential.

(2) The Minister is required to recommend to the Governor that regulations be made under this section and, in making any such recommendation, is to have regard to the privacy of students and the potentially adverse effects of any inappropriate public disclosure of the results.

(3) Despite anything else in this section, the Minister is to report to Parliament detailed information about the results so as to allow meaningful and substantial analysis of the effectiveness of schooling in achieving the aims of this Act and the government. The information should allow analysis of the effectiveness of all categories of schools and of government education provision for all students, including categories of students identified as in need of special provision.

(4) A report must be made each year on the results of the previous calendar year. The information provided should allow a valid comparison to be made of standards from year to year.

(5) Clause 12 of Schedule 1 to the Freedom of Information Act 1989 applies to a breach of the confidentiality provisions of regulations made under this section in the same way as it applies to an offence against an Act.

(6) In this section, results means results of individuals or schools, or any other results."

15 These provisions also apply to the School Certificate and Basic Skills Test information.

16 The Education Regulation provides in cl 5, as material to the request in issue:

"5 Publication of results: section 18A

(1) This clause applies to the following results:

...

(b) results of ... Higher School Certificate examinations and related assessments.

(2) Results to which this clause applies must not be publicly revealed if the results relating to particular students are revealed.

(3) Results relating to a particular student may however be revealed as follows:

(a) to the student or to anyone with the student's consent,

(b) to the student's parents

(c) to the principal of a school at which the student is enrolled or at which the student was previously enrolled,

(d) in the case of results of ... Higher School Certificate examinations and related assessments - by or with the approval of the Board of Studies, by way of publication of the results of students who the Board considers have achieved outstanding results.

(4) Results to which this clause applies must not be publicly revealed in a way that ranks or otherwise compares the results of particular schools.

(5) If a school is required (by the appropriate authority for the school) to publish an annual report of school performance but fails to do so by the due date for publication, this clause does not prevent the public release of any results that were required to be the subject of that report.

(6) The appropriate authority for the purposes of subclause (5) is:

(a) in the case of a government school - the Department of Education and Training

(b) in the case of a non-government school registered as a member of a system of non-government schools - the approved authority for the system

(c) in the case of a non-government school registered as an individual school - the proprietor of the school."

17 Clause 5, in its present form, replaces an earlier version and was substituted on 19 December 1997.

Public Policy Considerations

18 It will be seen from the above that the Parliament and the Government have put in place a detailed scheme to control the release of information relating to HSC results.

19 As noted, the restrictions contained in Schedule 2 of the FOI Act and in the Education Act were primarily inserted by the Education Reform Amendment Bill 1997. The Minister referred to the objectives of these restrictions in his second reading speech for the amending bill (Hansard, 22 October 1997, 1202). In relation to the exemptions inserted into Schedule 2 affecting the agency and Universities, the Minister said:

"This gives effect to the decisions in the white paper regarding the use of examination information which were recommended by Professor Barry McGaw following the virtually unanimous view of the education community that the publication of the tertiary entrance rank was educationally harmful, misleading and inaccurate.

As a tool for accountability, the tertiary entrance rank is so poor as to be counterproductive. There are other better, more sophisticated, more reliable, more stable and far more justifiable measures for giving parents and the community reliable information about how schools are performing. As Professor McGaw pointed out in "Shaping Their Future", the current TER calculation produces an artificial precision. It receives course results on a 1000-point scale but after scaling produces a 2000-point scale. In other words, more information comes out of the calculation than went in. As well, in many courses there is a clustering of student performances and scaling produces an artificial impression of the level of difference.

If decisions and judgments about schools were made on the basis of this calculation, false claims could be made about some schools being better than others. ...

Almost 400 public submissions called for the TER to be abandoned. This reflects a general concern about the distortion of the TER. ...

Such unanimity on an educational issue is virtually unprecedented. And it based on a very sound educational argument. This Government was elected on a policy to provide more meaningful and honest information to parents about the performance of schools, but specifically promised to do so in a way which did not involve the creation of league tables. A league table is an ordered ranking of schools on the basis of a single numeric indicator. This Government does not believe league tables are an appropriate way to achieve accountability to the public about the performance of schools. Indeed, the international literature on this subject provides clear grounds to conclude that such a practice is counterproductive to achieving the very thing which it is intended to achieve - school improvement. ..."

The UAI data request

20 I will deal first with the agency's contention in relation to the UAI data request.

21 As to the scope of the request, the applicant did not press its request in relation to the fourth category - `average UAI by school'. It accepted that the provision of UAI information by reference to school was now protected: see Education Regulation, cl 5(4). It continued to press its request as it related to the average UAI by:

(a) school system;

(b) school type; and

(c) Department of Education and Training School district.

22 The question is whether the agency's activities in relation to the generation of UAI data are exempt from the operation of the Act. As noted above, by virtue of Schedule 2 the following functions of the agency are exempt -

"functions relating to the storing of, reporting on or analysis of information with respect to the ranking or assessment of students who have completed the Higher School Certificate for entrance into tertiary institutions."

23 The agency relied on the evidence on affidavit of the Director of its Strategic Information and Reporting Directorate, Michael Gowrie Waterhouse. This evidence was not contested.

24 Mr Waterhouse deposed that the UAI is calculated by the Universities Admission Centre. It is an index (ranging from 0 to 100) giving a percentile-based ranking of applicants for university selection who have completed the HSC. The index, he deposed, is therefore a set of data which ranks and records assessments of students who have completed the HSC and are applicants for university selection.

25 He also deposed that the agency only holds the UAI data for the purpose of reporting on and analysing information with respect to the ranking or assessment of students who have completed the HSC for entrance into tertiary institutions. The only other function which the agency undertakes with respect to the UAI is to store that data, a function ancillary to the purposes of reporting and analysis.

26 Counsel for the applicant, Mr Lancaster, proceeded on the assumption that the information sought in relation to the UAI was capable of being derived from the information held by computerised means, in which case s 23 of the Act came into play. Section 23 places a duty on agencies to facilitate the provision of requested information, unless exempt. There was no evidence as to the agency's capability in this regard; and counsel for the agency did not concede that it had the capability.

27 Mr Lancaster argued that the operational exemption given to the agency by Schedule 2 should be read down so as not to include analysis and storage of information relating to the UAI by reference to school system, school type and school district. He referred to the Second Reading Speech and noted its emphasis on the restriction of information as it related to individual schools. I agree that the focus of the Second Reading Speech should be taken into account in construing the Schedule 2 exemption.

28 He referred to the general principle that exemption provisions should be construed narrowly so as to preserve the disclosure and transparency objectives of FOI legislation. While I agree with that principle as a general proposition, an artificial or unduly constrained interpretation should not be imposed.

29 Broken up into its constituent elements, the exemption in issue refers to -

"functions relating to"

"the storing of, reporting on or analysis of information"

"with respect to the ranking or assessment of students who have completed the Higher School Certificate for entrance into tertiary institutions."

30 Mr Lancaster submitted that providing information about the average UAI across schools, school districts and school systems is not within the exemption because it is not information with respect to the ranking and assessment of students.

31 I do not accept Mr Lancaster's submission. It is clear, I consider, from the evidence of Mr Waterhouse that the UAI itself relates to the ranking and assessment of students seeking entrance to tertiary institutions. Primary data can often be processed so as to produce secondary data (or `derivative' or `by-product' data). In its primary form the UAI provides information as to the ranking or assessment of students. If other information is held as part of the data collected about the students (or other data can be matched with the primary data) new information can be generated. In these instances the primary data remains a key element of the new data sought. The new data can not be stripped of its connection with the primary data in the way Mr Lancaster suggests.

32 Generation of the UAI in the form requested involves analysis and reporting on the (primary) HSC results data.

33 The expression "functions relating to" these matters is a broad one. "Functions" can not be reasonably read down in the way suggested by Mr Lancaster to mean only those functions of storage and analysis that relate to listing student scores by schools. Other types of analysis of the information are covered.

34 My conclusion is that the agency is an exempt body in respect of the information sought by the UAI data request.

The HSC mean scaled results request

35 The agency objects to release of the estimated mean scaled results in Mathematics, English and Science in the HSC (1997) by school system, relying on the `business affairs' exemption (cl 7 of Schedule 1, cited above at para 7).

36 It was explained at the hearing that for the purposes of the request, the `school systems' referred to are those belonging to the non-government education sector. The Education Act differentiates primarily between three categories of schools or schooling: government schools, non-government schools and home schooling. Non-government schools may form a `system of non-government schools' (s 39). Ministerial approval for a system is required (s 42). The system must have an approved authority to act on behalf of the system (s 40). The system is responsible for monitoring compliance with the Act by member schools (see s 38).

37 Counsel for the agency indicated that the relevant information as it related to the government schools sector had been released.

38 The key element of clause 7 applicable to the request in issue is sub-clause (1)(c) which provides a document is exempt

"if it contains matter the disclosure of which:

(i) would disclose information (other than trade secrets or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and

(ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency."

39 The agency submitted that the information sought concerns the `business affairs' of third parties, being private schools and private school systems. The agency argued that the `business' of private schools and private school systems is to provide education services. The submission continued that the decisions about which school a student should attend is likely to be based, at least in part, on an assessment of the relative merits of the education services provided by the school and school systems competing for the custom of students. Therefore, it argued, the decision is likely to be significantly influenced (whether rightly or wrongly) by information about the HSC results of students attending different school systems.

40 The principal submission concludes that it would be detrimental to the business affairs of a private school or private school system to publish information showing (or capable of being construed as showing) that the system of which that school was a part or the system itself was inferior to one of its competitors in the education market.

41 Under s 32 of the Act an agency is obliged not to give access to a document to a third party requester unless the agency has taken such steps as are reasonably practicable to obtain the views of the person concerned as to whether the document is exempt under the `business affairs' exemption. The agency has not made any enquiries of third parties. Mr Singleton, for the applicant, explained that the agency had not made any such enquiries because of its view that it has not contemplated releasing this material and has therefore not approached third parties.

42 The agency sought to speak for the school systems affected by the request. It did so without any direct evidence from any of the approved authorities.

43 In Re Saxon and Australian Maritime Safety Authority (19 June 1995 - unreported) the Commonwealth Administrative Appeals Tribunal made the observation at [98] that the term `business, commercial or financial affairs' are `words of very wide application, and cover all the aspects, both fiscal and administrative, of an organisation or undertaking.' The Tribunal added: "I do not think they should be narrowly construed." It is not possible to discern from the Tribunal's published reasons (due presumably to the need to continue to protect exempt information from disclosure) the kind of information to which it positively applied this test. What is evident is that the documents in dispute related generally to alleged abuses of the Seamen's Engagement System.

44 A New South Wales Supreme Court decision that bears on the issue is Wittingslow Amusements Group v Environment Protection Authority (Powell J. unreported 23 April 1993). The agency proposed to release a report relating to the acoustic impact of amusements proposed to be incorporated into a proposed redevelopment of Luna Park. The report had been obtained by the successful tenderer (Wittingslow) and given to the agency. Wittingslow objected to the release on the basis that it would disclose business information that might adversely affect its interests. It sought an injunction to restrain release to the FOI applicant. The application for an injunction was not granted. Powell J. noted that the report concerned in substance a forecast as to the likely acoustic impact of an amusement park not in operation, with some suggestions as to how potential noise nuisance might be ameliorated. Powell J. noted that there was nothing in the material dealing with such matters as the costs associated with installation of the rides, operating costs, pricing and potential profits. Consequently, his Honour considered that the report did not constitute information falling into the category of business, professional, commercial or financial affairs information.

45 In the present case the information in issue is derived from information relating to the academic performance of students in external examinations. Where the primary or source data falls within an exemption, then I consider that ordinarily the secondary (or by-product) data derived from reprocessing the primary data should be treated as falling within the exemption. My observations in relation to the UAI data (at para 31) apply also to this request.

46 The primary data (student performance in external examinations) would not, I consider, ordinarily be construed as `business affairs' or `financial affairs' information. The ordinary understanding, I consider, of these terms is that they relate to the kind of information broadly identified by Powell J. In a school context, the terms might refer to such matters as the school's income and expenditure, the employment relationship with its teachers, the teaching program, discipline and fund-raising. A student's academic performance is an outcome to which the business conducted by the school may be a significant contributor. It does not, in my view, form part of the school's `business affairs'.

47 In this case, the submission is that the information sought is derived from information which involves the `business affairs' of a system of schools. While I do not rule out the possibility that a system may have `business affairs' which are distinct from those of individual schools, I have no evidence on the point in this case.

48 My conclusion is that the HSC mean scaled results can not reasonably be construed as constituting information related to the `business affairs' of a non-government school system or of individual schools within a system.

49 In case I have erred and the documents requested are covered by sub-paragraph (i) of cl 7(1)(c), I will deal with the application of the test in sub-paragraph (ii).

50 The agency asserts that release of the mean scaled result in three courses by school system would have unreasonable adverse effects.

51 The agency faces real difficulty in satisfying the Tribunal that there is a "prejudice" of such a degree that it "could reasonably be expected to have an unreasonable adverse effect" on the third party's business affairs, as it has produced no evidence of what those adverse effects might be.

52 Because the agency has called no evidence in support of this proposition the applicant is not in a position to test the strengths or weaknesses of the case in relation to the alleged adverse impact.

53 In regard to the approach to be adopted in applying the `prejudice' test, refer to my observations in Neary v Chief Executive, State Rail Authority [1999] NSWADT 107 at [35]- [36], as follows:

"An objective view must be brought to bear on an agency's claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - `expect' - carries a firmer connotation than words such as `anticipates', it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances.

That approach emerges from a consideration of the Federal Court cases which examined this issue in the context of the early Commonwealth FOI cases concerned with the interpretation of the similar Commonwealth exemption (Freedom of Information Act 1982 (Cth) s 43). See News Corporation v National Companies and Securities Commission [1984] FCA 400; (1984) 5 FCR 88 and Attorney-General's Dept v Cockcroft (1986) 64 ALR 97; Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111 at 120-1, 123-4; Searle Australia v PIAC [1992] FCA 240; (1992) 108 ALR 163, 178 and generally, Cossins, Annotated Freedom of Information Act New South Wales (1997) [107.15]-[107.18]."

54 It is possible that a mixture of reasons affect school choices. Some parents or students may be influenced by the religious affiliation of a system. Others may chose the school directly regardless of the system to which it belongs. It is difficult in these circumstances for a tribunal to form any view on whether there may be unreasonable adverse effects affecting an entire system of the kind suggested by release of the information sought.

55 As to the public policy considerations referred to in the Second Reading Speech (see [18]-[19]), this request is, I consider, likely to give rise to the production of a "league table" in relation to the performance of non-government systems of schools. But it is relatively remote from the concerns which were the focus of the Minister's comments, the ranking of individual students and individual schools. In any event, my ability to assess this issue is compounded by the absence of any evidence from the affected systems.

56 I am not satisfied that there is an unreasonable adverse effect or a risk of prejudice to which an administrator could give sufficient weight to refuse to release the information.

57 The applicant raised other objections to reliance by the agency on the exemption, objections of a more technical character. Counsel for the applicant argued that an agency could only invoke the exemption to protect the interests of third parties where they were `persons' in the strict legal sense. The applicant noted that her request related to a `system' rather than a natural or legal person.

58 Acceptance of the applicant's submission on this point would significantly impact on the practical operation of this exemption. In the present instance, the applicant has used a term in ordinary use in the administration of the education system. It refers to an organised group of schools overseen by an approved authority which usually has had a degree of autonomy conferred on it in relation to day-to-day educational matters.

59 Endorsement of the applicant's argument would tend to promote a culture in which applicants might seek to draft applications in a way that would prevent agencies considering the interests of third parties with which they deal who happen not to be organised in a form which involves clear entity status. An interpretation of the Act which diverts attention from the substantial merits of applications should be avoided. If adopted it would tend to promote point-scoring on both sides, with possibly greater potential for detriment to applicants.

60 In the present instance my view is that the reference to `persons' should be liberally construed so as to cover the approved authority responsible for the particular system and to permit reference to the collection of schools constituting the system.

Conclusions

61 (1) The UAI data request relates to functions of the agency which are exempt from the operation of the FOI Act. Accordingly the applicant's request is not validly made.

62 (2) As to the HSC mean scaled results request, my conclusion is that the agency has not established that the information from which these results are derived, the performance of individual students in the HSC, is information of the kind covered by sub-paragraph (i) of cl 7(1)(c). If I am wrong in that regard and the primary information is information covered by sub-paragraph (i), I am not satisfied that the agency has established a prejudice of the kind referred to in sub-paragraph (ii) sufficient to justify non-disclosure.

Determination

63 Pursuant to s 63 of the Tribunal Act:

(1) The decision of the agency refusing to disclose the UAI data is affirmed.

(2) The decision of the agency refusing to disclose the HSC mean scaled results is set aside. The agency is directed to release those results to the applicant.

Costs

64 By supplementary application filed 16 August 1999, the applicant sought an order for costs in its favour. The agency filed a reply to these submissions on 19 October 1999. I do not propose to deal with the application in this decision. After hearing any oral submissions in light of this decision, I will rule on the costs application.