Raethel v Director Geneneral, Department of Education and Training [2000] NSWADT 14 (25 February 2000)

Last Updated: 29 February 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Raethel -v- Director Geneneral, Department of Education and Training [2000] NSWADT 14

PARTIES: APPLICANT

Stephanie Raethel

RESPONDENT

Director General, Department of Education and Training

FILE NUMBERS: 993051

HEARING DATES: 10/11/99

SUBMISSIONS CLOSED: 10/11/1999

DECISION DATE: 25/02/2000

BEFORE: O'Connor K - DCJ (President)

LEGISLATION CITED: Freedom of Information Act 1989

CASES CITED:

APPLICATION: Review of decision to refuse access to documents (or part thereof)

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: R Lancaster of Counsel

RESPONDENT REPRESENTATIVE: P Singleton of Counsel

ORDERS: 1 The decision under review is affirmed in respect of release of information relating to postcode areas where there is only one school.

2 The decision under review is otherwise set aside, and the following decision is made in substitution: That the applicant's request be granted in relation to information organised by reference to postcode area in the case of each postcode area that has two or more schools.

3 Any application for an order for costs in this matter and in matter No 993052 is reserved for hearing at a date to be fixed.

Reasons for Decision:

1 The applicant is an education writer with the Sydney Morning Herald; and the application is made in that capacity. Over the last 3 years, she has made a number of requests pursuant to the Freedom of Information Act 1989 (the FOI Act) for access to information capable of being produced by the Department of Education and Training (the agency) relating to State-wide patterns of performance in three key public assessment processes:

the School Certificate and Higher School Certificate (HSC) (undertaken by students in secondary schools); and

the basic skills test (undertaken by students in primary schools).

2 Some of her requests have been met by the agency and three requests have been denied leading to applications for review. Two of the requests related to data connected with performance in the HSC and were the subject of an earlier decision: Raethel v Director-General, Department of Education and Training [1999] NSWADT 108. The Tribunal affirmed the agency's decision to refuse to disclose University Admission Index data. The Tribunal set aside the agency's decision to refuse to disclose HSC mean scaled results.

3 This application for review relates to the agency's decision to refuse access to basic skills test results data in government schools organised by reference to postcode. The precise request was for:

"Basic skills test data by percentage in each of the five skill bands (Band 1 to 5) for year three and in each of six skill bands (Band 1 to 6) for year five, covering both literacy and numeracy ...by postcode".

4 After the directions hearing, there was further consultation between the parties. The applicant reformulated her request and confined it at hearing to information in relation to those postcode areas with more than one government school. So the question that remained before the Tribunal was a narrower one than that considered by the agency.

5 There was no contest in so far as the agency's decision related to postcodes with one primary school.

6 The applicant acknowledged that in that instance release would involve an infringement of reg 5(4) of the Education Regulation 1996 (reg 5(4)) made pursuant to s 18A of the Education Act 1996 (the Education Act) considered to fall within the exemption contained in cl 12 of Schedule 1 of the FOI Act (FOIA cl 12). These provisions are referred to in detail below.

7 Consequently the issue in the case was whether that part of the basic skills test information that related to postcodes containing two or more primary schools also fell within the exemption.

Legislation

8 The basic skills testing procedure is defined by s 18 of the Education Act, which provides:

"18 Basic skills testing

(1) In this section:

basic skills testing means a test of the basic skills of children (such as literacy and numeracy), but does not include a test relating to the teaching of a particular course of study.

(2) The Minister is to arrange for the conduct of basic skills testing in such government schools and at such times as the Minister may determine.

(3) The Minister may, at the request of a non-government school, arrange for the conduct of basic skills testing in the school.

(4), (5) (Repealed)"

9 Section 18A of the Education Act 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) basic skills testing under section 18, and

(b) School Certificate and 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."

10 Regulation 5 (reg 5) made pursuant to s 18A provides:

"5 Publication of results: section 18A

(1) This clause applies to the following results:

(a) results of basic skills testing under section 18 of the Act (including the English Language and Literacy Assessment (Ella) Test),

(b) results of School Certificate and 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 School Certificate or Higher School Certificate examinations and related assessments by or with the approval of the Board of Studies, by way of the 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."

11 FOIA cl 12 provides:

"12 Documents the subject of secrecy provisions

(1) A document is an exempt document if it contains matter the disclosure of which would constitute an offence against an Act, whether or not the provision that creates the offence is subject to specified qualifications or exceptions.

(2) A document is not an exempt document by virtue of this clause unless disclosure of the matter contained in the document, to the person by or on whose behalf an application for access to the document is being made, would constitute such an offence."

12 It is to be noted that s 18A(5) provides that reg 5 is a secrecy provision covered by FOIA cl 12, even though the regulation does not create a secrecy offence, as contemplated by the text of FOIA cl 12.

13 The applicant acknowledges that, in terms of reg 5(4) made pursuant to s 18A, it is desired to "publicly reveal" the results. But her submission is that reg 5(4) is not infringed because release by postcode where there are two or more schools in the area will not give rise to the release of results "in a way that ranks or otherwise compares the results of particular schools" (emphasis added).

14 The agency counters that situations could arise in relation to a two-schools postcode area where the release of the amalgamated data could effectively release a particular school's results. This could occur where there is a very big school and a very small school, with the result that reasonably accurate conclusions could be drawn, by inference, as to bands within which (at least) the big school performed. I accept this analysis as a matter of mathematical logic.

15 But the degree to which an inference can be drawn would appear to fade as one moves from a two-school postcode area to one with three schools or more.

16 As to the legal meaning to be attached to "particular school" the agency's submission is that there does not have to be a high degree of precision attached to that term provided it can fairly be said that release of the information by postcode might allow comparison.

17 The agency submitted that to release the results of two (or a few) schools in a postcode area might allow comparisons to be made on a socio-economic basis as between postcodes. For example, a negative presentation could be made in relation to a low performing postcode area with only two (or a few) schools which would have the effect of releasing information about the particular schools in the postcode area even though any one could not be precisely identified.

18 The agency suggested that the Tribunal should devise a formula that located the point at which there were a sufficient number of schools in a postcode area to disguise the obtaining of information which might reveal the likely performance of a school.

19 In support of its approach, the agency also drew attention to the public policy considerations that had given rise to the restriction of the publication of results information by reference to particular students or particular schools. The context that gave rise to the tightening of the release of results information involved a negative front-page newspaper story as to the overall average of the HSC results achieved by students at a high school accompanied by a photograph of the class. I canvassed the Minister's statement to Parliament introducing the amending bill in 1997 in the earlier decision: see Raethel v Director-General, Department of Education and Training [1999] NSWADT 108 at [19]. While this case involves primary school information, I acknowledge that the same public policy considerations apply to this case; and, arguably, have heightened significance in so far as release of data might lead to (more vulnerable) primary school children being depicted in a negative light.

20 As to the interpretation of the term "particular school", the agency submitted that a liberal, purposive approach should be adopted in construing s 18A and reg 5, one cognisant of the public policy objectives to which I have referred. If that approach was adopted s 18A and reg 5 might be construed as applying to situations (such as in the example of two schools in the one postcode area) even though the "particular" school could not be identified with absolute precision.

21 In reply the applicant submitted that a strict interpretation was appropriate. In that regard it noted that the exemption given by FOIA cl 12 was intended to attach to secrecy provisions creating criminal offences. Accordingly the Parliament could be assumed to have understood that the exemption would cover provisions which would be strictly construed.

22 The applicant also noted that the agency had already released the basic skills test data arranged by school district. In relation to that decision, the agency replied that the school groups involved were sufficiently large to obscure the data relating to particular schools and thus the data does not allow comparison of particular schools.

23 To support its submission in favour of a liberal construction, the agency noted that in this case the provision to which FOIA cl 12 attached did not in fact create an offence. The device had been used of deeming it to be an offence provision so as to gain the protection of FOIA cl 12. That ought not to stand in the way of a liberal construction.

24 As to the approach to be adopted towards construction, I favour the submissions of the applicant. I agree that when enacting FOIA cl 12 the Parliament can be assumed to have appreciated that the provisions to which the clause related would be likely to be construed strictly. Maintenance of the policy objectives of FOI legislation also favours strict construction of exemption provisions.

25 The ordinary meaning of the term also favours the applicant's position. The primary definitions of "particular" given in the Macquarie Dictionary (3rd ed 1998) are:

"1. Relating to some one person, thing, group, class, occasion etc., rather than to others or all; special, not general: one's particular interests. 2. being a definite one, individual, or single, or considered separately: each particular item."

26 I am not satisfied that the ordinary meaning of "particular" can support the broader construction of reg 5(4) sought by the agency. "Particular" in reg 5(4) refers in my view to an expressly identified school or one immediately identifiable for the reason that it is the only school in the postcode area.

27 As noted earlier, I recognise that in circumstances where there is a big school and a very small school in an area, it might be possible to draw closer inferences about the likely performance of an individual school. But it still would not reveal exact information about that school.

Determination

28 The decision under review is affirmed in respect of release of information relating to postcode areas where there is only one school.

29 The decision under review is otherwise set aside, and the following decision is made in substitution:

That the applicant's request be granted in relation to information organised by reference to postcode area in the case of each postcode area that has two or more schools.

30 Any application for an order for costs in this matter and in matter No 993052 is reserved for hearing at a date to be fixed.