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

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 NUMBER: 993052

HEARING DATES: 08/04/1999

SUBMISSIONS CLOSED: 08/16/1999

DATE OF DECISION: 9 November 1999

Judge K P O'Connor - President BEFORE:

PRIMARY LEGISLATION: Freedom of Information Act 1989

APPLICATION: Review of decision to refuse to grant access to documents -

MATTER FOR DECISION: Principal matter

Applicant: R Lancaster of counsel REPRESENTATION: Respondent: 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.

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."