|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Decisions Tribunal of New South Wales |
Last Updated: 20 June 2011
|
Case Title:
|
|
|
|
|
|
Medium Neutral Citation:
|
|
|
|
|
|
Hearing Date(s):
|
|
|
|
|
|
Decision Date:
|
|
|
|
|
|
Jurisdiction:
|
|
|
|
|
|
Before:
|
|
|
|
|
|
Decision:
|
1. The decision to exclude the school names from the
Marks Reports released to the Applicants is set aside.
2. In its place the decision is made that the school names are to be
included in the Marks Reports released to the Applicants.
3. The decision is otherwise affirmed.
|
|
|
|
|
Catchwords:
|
|
|
|
|
|
Legislation Cited:
|
|
|
|
|
|
Cases Cited:
|
Colakovski v Australian Telecommunications Corporation
[1991] FCA 152; (1991) 29 FCR 429
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33 Head v NSW Commissioner of Police [2010] NSWADT 27 McGuirk v NSW Police [2007] NSWADT 120 NSW Police v District Court (NSW) (1993) 31 NSWLR 606 Rabel v Swinburne University of Technology, Administrative Appeals Tribunal of Victoria 11 November 1996 Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 Re Curtin and Pine Rivers Shire Council [1997] QICmr 18; (1998) 4 QAR 195 Re Redfern and University of Canberra 38 ALD 457 Ritson v Commissioner of Police, NS W Police Force [2010j NSWADT 22 Saleam v Director General, Department of Community Services [2002] NSW ADT 41 Victoria Police v Marke [2008] VSCA 218 |
|
|
|
|
Texts Cited:
|
|
|
|
|
|
|
|
|
Parties:
|
|
|
|
|
|
Representation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
File number(s):
|
|
|
|
|
|
Publication Restriction:
|
|
[~match|dynJUDEXP3~Y|
||
Reasons for
Decision
1
The Applicants have applied to the Tribunal for review of a determination by the
Respondent under the Freedom of Information 1989 (“the FOI
Act”').
Background
2
The Applicants made an application under the FOI Act seeking access to:
“The 2009 (for entry into 2010) Selective Schools Primary School Marks
Reports (“the Marks Reports”) for the following
schools:
1.
Maryland Public School
2. Wollongong Public School
3. Chatswood Public
School
4. Avalon Public School
5. Holsworthy Public School
6.
Bankstown North Public School
7. Alexandria Park Community School
8.
Caringbah North Public School
9. Hurstville Public School
10. Sutherland
Public School
11. Kareela Public School
12. Blacktown South Public
School
13. Colyton Public School”.
3
That request was originally refused on the basis that the Marks Reports were
exempt pursuant to clause 12 of Schedule
1 of the FOI Act and section 18A of the
Education Act 1990.
4
On internal review the Respondent varied the original decision and granted
partial access to the Marks Reports. The
Respondent determined that the names
and student numbers of candidates as welt as the names of schools were exempt
pursuant to clause
6 of Schedule 1 to the FOI Act. This identifying information
was deleted from the Marks Reports released to the Applicants.
5
The Applicants sought external review of that decision before this Tribunal. At
the first planning meeting on 15 June
2010, the Applicants confirmed that they
were not seeking access to the names of the students or to the student numbers
in the Marks
Reports. However, they were pressing for access to the names of the
schools. The Respondent says that this information is exempt
under clause 6 of
Schedule 1 to the FOI Act.
6
At the planning meeting the Applicants also raised a concern that the Marks
Reports did not contain the raw test scores
of the students, and stated that
primary school marks reports provided to her in the past had contained this raw
data. The Respondent
has informed the Applicants that this information is no
longer contained in such reports, and that it falls outside the scope of
her
application.
Applicable
legislation
7
Section 16 of the FOI Act provides that a person has a legally enforceable right
to be given access to an agency's
documents in accordance with that Act.
8
Section 25(1) of the FOI Act provides, in part, that an agency may refuse access
to a document if it is an exempt
document. Section 25(l)(a) of the FOI Act
provides that an agency may refuse access to a document if it is an exempt
document in
accordance with one or more of the grounds of exemptions referred to
in Schedule 1.
9
The onus is on the agency to satisfy the Tribunal that its decision was
justified: section 61 of the FOI Act.
10 Clause 6(1)
of Schedule 1 to the FOI Act (Documents affecting personal affairs) provides
that a document is an exempt
document if it contains matter the disclosure of
which would involve the unreasonable disclosure of information concerning the
personal
affairs of any person. Clause 6 relevantly provides:
6 Documents
affecting personal affairs
(1) A document is an exempt document if it
contains matter the disclosure of which would involve the unreasonable
disclosure of information
concerning the personal affairs of any person (whether
living or deceased).
(2) A document is not an exempt document by virtue of
this clause merely because it contains information concerning the person by
or
on whose behalf an application for access to the document is being
made.
Legal
Principles
11
Each of the parties has filed written submissions. In her submissions Ms Wallace
has summarised the relevant legal principles.
I agree with that
summary.
Personal affairs
12 The
phrase “personal affairs” is not defined in the FOI Act. The case
law suggests that the phrase “personal
affairs” should be
interpreted broadly, and that the type of information that can constitute
“personal affairs”
will depend on the circumstances of the case. In
NSW Police v District Court (NSW) (1993) 31 NSWLR 606 at 625 (Perrin's
case”) the term “personal affairs” was interpreted to mean the
“composite collection of
activities personal to the individual
concerned”. In Re Curtin and Pine Rivers Shire Council [1997] QICmr 18; (1998) 4 QAR
195 at [I4] the Commissioner held that “information concerns the 'personal
affairs' of a person if it concerns the private aspects of a
persons
life”. In Colakovski v Australian Telecommunications Corporation
[1991] FCA 152; (1991) 29 FCR 429 (“Colakovskl') “at 436, Lockart J said,
“it would be inappropriate to attempt to define the meaning of
“personal affairs”
in some definitive way. It would be unwise to
substitute for the word 'personal' some other word such as the word
'private.’
His Honour further explained that the word
'private' tends to connote confidential or not widely known, while the term
“personal
affairs” is not confined to “affairs that are
private, in the sense of secret to the person”.
13
Colakovski concerned a request for access to the name and telephone
number of a person under the Freedom of Information Act 1982 (Cth). The
question was whether this would “involve the unreasonable disclosure of
information relating to the personal affairs”
of that person under section
41(1) as previously enacted. At 437 Lockhart J stated:
“There is a
real question as to whether the name and telephone number of a person can answer
the description of “information
relating to the personal affairs” of
that person under s 41(1). Viewed as an abstract conception I would be inclined
to the
view that it could not, but such questions are not considered in the
abstract. The present case must be approached on the basis that
the relevant
documents containing the deleted material state the names, addresses and
telephone numbers of persons making the calls
or of the subscriber. Plainly
enough it would be revealed from the documents when the telephone calls were
made, the telephone numbers
from which they emanated, the name of the
subscriber, and, at least in some cases the name of the caller and perhaps a
pattern of
telephone calls. The words “relating to” or “in
relation to” are of the widest import and in the context
of s 41 it is
enough that the information relates to a person's personal affairs..”
14 Similar
reasoning may be applied to the description “information concerning the
personal affairs of any person”
contained in clause 6 of the FOI Act.
15 In The NSW
FOI Manual, a joint publication of NSW Department of Premier and Cabinet and the
NSW Ombudsman August 2007 (“the NSW FOI Manual”) a broad range
of issues are identified as constituting personal affairs. At page 189
the
Manual provides that “[w]ithout attempting to set out a comprehensive list
of relevant matters, in assessing FOI applications
it can it can be assumed
that, in the absence of special circumstances to the contrary, information
concerning the following matters
could constitute the 'personal affairs' of a
person in terms of the first part of the test in clause 6:
Identification
(1) Information about a natural person from which, or by use of which, the
person can be identified.”
16 The Manual
proceeds (at pages. 190 - 191) to list information relating to a person's
health, social, financial and employment
status, or to his or her education, as
other matters that could constitute the personal affairs of a person. Page 191
of the FOI
Manual identifies that “[r]eports generated by educational
institutions concerning academic progress of a student, test scores,
including
aptitude or vocational tests, or counselling reports” may constitute the
personal affairs of a person. In contrast,
[I]nformation kept in statistical or
anonymous form, from which information relating to a particular person could not
be isolated
or the person identified” is listed as an example of
information that would not normally concern the personal affairs of a
person.
17 Case law has
considered whether documents concerning a person's academic assessment may be
categorised as relating to
personal affairs where the person's name and student
number is deleted, but other information remains that could be used to identify
the person.
18 In
Rabel v Swinburne University of Technology, a decision of the
Administrative Appeals Tribunal of Victoria (11 November 1996)
(“Rabel”), Deputy President Megay considered
a request for access to
5 handwritten examination papers. The University relied on the exemption
contained in section 33(1) of the Freedom of Information Act 1982 (Vic),
which reads:
“A document is an exempt document if its disclosure under
this Act would involve the unreasonable disclosure of information
relating to
the personal affairs of any person (including a deceased person)”.
19 Deputy
President Megay considered whether excision of the student's name and
identifying number in each instance, as
well as the examiner's comments and
marks, would result in the documents no longer being exempt. “What would
remain would be
the handwritten answers of the various students to the five
examination questions. Would this edited document contain information
“relating to the personal affairs of any person”?
20 The matter
was considered by Deputy President B J McMahon in Re Redfern and University
of Canberra 38 ALD 457. That case concerned a student who made a series of
requests for access to examination data for subjects which he had taken. Deputy
President McMahon held that the examination scripts [of other students] in
question fell within the ambit of section 41(1) (the Commonwealth counterpart of
s 33(1)) as the identity of their authors could be determined by their student
number and by their handwriting. At page 464 he stated:
'it would be
possible to excise reference to the student number pursuant to s 22. it would
not be possible to disguise the handwriting. It is a notorious fact, not
requiring specific proof that the handwriting of
each person is different and
can assist in identifying the author of any handwritten pages. The identity of
the student is personal
information, failing within the definition of that term.
... ‘
Here, the Applicants Mr Rabel was in the same class
as the students whose papers he seeks to access. There is no doubt he would be
capable of identifying the students from their handwriting. In my view the five
handwritten examination papers fall within the field
described by the concept of
“information relating to the personal affairs of any person”.
Whether disclosure would be “unreasonable”
21 As to
whether or not disclosure of documents containing the above information would be
'unreasonable', it is well accepted
that this question has at its core public
interest considerations: Colakovski. That is a question of fact that
involves an examination of all the circumstances related to the document in
question, and then a
weighing up of the public interest in protecting personal
privacy against the public interest in the Applicants (and possibly the
wider
public) being given access to the document: McGuirk v NSW Police [2007]
NSWADT 120 at [31].
22 The comments
of the AAT in Re Chandra and Minister for Immigration and Ethnic Affairs
[1984] AATA 437; (1984) 6 ALN N257 at [38], have been cited by the Tribunal with approval in
Saleam v Director General, Department of Community Services [2002] NSW
ADT 41 (at [51]):
“Whether disclosure is 'unreasonable' requires, in
my view, a consideration of all the circumstances, including the nature of
the
information that would be disclosed, the circumstances in which the information
was obtained, the likelihood of the information
being information that the
person concerned would not wish to be disclosed without consent, and whether
that information has any
current relevance.”
23 In
Rabel the Deputy President placed weight on the evidence given by the
lecturer responsible for the subject in which the students had taken
the
examination, that students would be unnecessarily stressed in the event they
thought their papers were to be made public. At
page 6 she stated:
“Mr
Davis informed the Tribunal that students perform examinations under conditions
of great stress, they do not get a second
chance, they perceive that they
provide their answers in circumstances of confidentiality and that potentially
students might be
inhibited (to their detriment) by the notion and possibility
of future disclosure.
24 This evidence
was found to outweigh the applicant's submission that “all students want
to pass, they have paid
their HECS fee and thus will not be deterred or
inhibited by the possibility of disclosure and that access adds to the arsenal
of
knowledge of an ambitious student.” The Deputy President also commented
that:
“In the circumstances of the applicant's submissions it is also
relevant that he failed to avail himself of the normal appellate
and review
procedures provided by the University in the event he was dissatisfied with his
own mark.
In addition, it cannot be said to be in the public interest to so
prejudice the integrity of the education system in order to satisfy
the
intellectual curiosity of an individual student. In the Tribunal's opinion any
potential inhibition of students in relation to
vital examinations is
undesirable”.
25 The Tribunal
held that in these circumstances disclosure would be unreasonable.
26 In Re
Redfern and University of Canberra, which contained similar facts to
Rabel, the Tribunal reached the same conclusion, noting (at page 464)
that the students’ responses to the examination
questions:
“were obtained under the strict examination conditions of the
university. These include conditions aimed at ensuring anonymity
and
invigilation aimed at ensuring privacy. Certainly there is, on Mr Jaggers'
evidence [Mr Jaggers being one of the students who
had undertaken the
examination], an expectation that responses to examination questions are to be
kept confidential to University
officials. This expectation is based on long
standing practice and on the published examination procedures”.
27 As in
Rabel, the Tribunal considered that the other appeal provisions available
to dissatisfied candidates were also relevant to its determination
that
disclosure would be unreasonable. Whether the Applicant's motive is relevant to
the assessment of unreasonableness.
28 In
Department of Education and Training v GJ (GD) [2009] NSWADTAP 33
(“GS') the Appeal Panel considered whether disclosure under the FOI
Act was disclosure to the world at large. In doing so, the Appeal Panel
took
into account the Victorian Court of Appeal decision of Victoria Police v
Marke [2008] VSCA 218 (“Marke”). The Appeal Panel decided
that it should follow Marke and concluded that:
“49
Consequently, the FOI decision-maker (agency or review tribunal) must not,
uncritically, exclude from its consideration
matters pressed by the Applicant
personal to the Applicant such as the purpose of the application and promises of
limited use. As
the Victorian Court noted, that does not mean that the
decision-maker must give effect to the Applicant's plea. The decision-maker
may
form a negative view as to the likelihood that the promise will be kept, and the
attributes of the Applicant may militate against
acceptance of the promise. The
Victorian Court gave the following illustrations of this point: the Applicant
who is a political activist,
a journalist or a member of parliament, all of whom
might reasonably be assumed to be likely to seek maximum publicity for the
material
released.
29 The Appeal
Panel (and the Court of Appeal in Marke) acknowledged that the Applicants
cannot be restrained from further disclosure.
30 In
Ritson v Commissioner of Police, NS W Police Force [2010
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/nsw/NSWADT/2011/16.html