CITATION: Challita v Director-General, Department of Education and Training [2006] NSWADT 109 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: General Division APPLICANT PARTIES: Jolanda Challita RESPONDENT Director-General, Department of Education and Training FILE NUMBER: 053226; 053290 HEARING DATES: 29/22/05, 01/12/05 SUBMISSIONS CLOSED: 12/20/2005 DATE OF DECISION: 04/13/2006 BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - operations of agencies - access to documents - substantial and unreasonable diversion of agency's resources - Freedom of Information Act - access to documents - operations of agencies - Freedom of Information Act - access to documents - substantial and unreasonable diversion of agency's resources MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 CASES CITED: Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Re SRB and SRC and Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 APPLICANT C Jackson, barrister REPRESENTATION: RESPONDENT C Ludlow, solicitor ORDERS: 1. In application No. 053226 I order that the Department is to provide Ms Challita with copies of test results from ACER as identified in paragraph (b) of her original FOI application. The decision under review is otherwise affirmed; 2. In application No. 053290 I order that the Department is to provide Ms Challita with a copy of the charts that are used by the Selective High School and Opportunity Class Placement Unit to correlate an IQ with a profile score. The decision under review is otherwise affirmed. REASONS FOR DECISION 1 Ms Challita has brought these applications seeking review of determinations made by delegates of the Director-General of the NSW Department of Education and Training. Ms Challita sought a number of documents under the Freedom of Information Act 1989 ("the FOI Act") in connection with primary school Opportunity Class selection and selective public high school selection and particular documents that relate to her children XA and XB. The Applications 053226 2 In February 2005 Ms Challita lodged an application with the Department seeking the following: (a) Access to the original test booklets - answers to test questions and original answer sheet completed by WZ and held by ACER in relation the Opportunity Class test undertaken in August 2004 for placement for 2005. I would confirm my verbal advice to Mr. Wasson that these documents be set aside and not destroyed. (b) Certified copies of test results including a computer print out from ACER with -supervisor's initials verifying the marks, the answer checks and the results. (c) All documents, notes, files, data files, applications, appeals, correspondence, email communications or any other document or directive in connection to WZ and in respect of Opportunity Class Applications and Appeals etc. (d) All documents, notes, files, applications, appeals, correspondence, email communications or any other documents held by all departments including The Regional Office, Ultimo – (Mr. Phil Lambert) and the Director, Educational Measurement Directorate - (Mr. Dave Wasson) and including Miranda Public School. (e) All minutes and notes of meetings attended by members of the Selective Schools Unit or any other person in connection with WZ's Opportunity Class selection, appeals and any decisions in respect thereof. 3 The reference to "ACER" is a reference to the Australian Council for Educational Research. ACER is an independent organisation, which creates and disseminates educational resources. A contractual relationship exists between ACER and the Department pursuant to which ACER conducts Selective High School and Opportunity Class tests for the Department. 4 The Department identified a number of documents that fell within the scope of this application and a determination was made to provide Ms Challita with full access to all documents with the exception of six pages from which certain material was deleted. The deleted material because the Freedom of Information Officer determining the application considered the information to be exempt under Clause 6 of Schedule 1 of the FOI Act. 5 Ms Challita was dissatisfied with aspects of the material that the Department provided and sought an internal review of the determination. She wrote in the following terms: "I would advise that in relation to the production of a certified computer print out from ACER in relation to my daughters WZ's answer check, scores and results that the document produced, attached, is a print out from the Department of Education not ACER and it is only identifiable as referring to WZ by a note on the bottom signed by somebody who cannot be identified. I would respectfully request that the requested documentation/ information with proper certification/verification please be provided directly from ACER, or advice be given in relation to the production or otherwise. I would also advise that in the first instance my daughter's Original application for OC was apparently placed on Hold and a determination was made at a later date following that. The minutes of this initial selection committee meeting and decision to put my daughter on hold did not form part of the documents nor did the minutes of the meeting that resulted in the final decision being made in relation to my daughters initial application. Could I please be provided with the minutes etc., of both the meetings and the names of those that made the decisions not to offer my daughter a place in relation to the initial application." 6 Ms Challita also raised concerns about the opportunity that had been offered to her to view original documents retained by the Department. It seems that a degree of animosity has developed between Ms Challita and a number of officers of the Department. She alleged that her family was being 'targeted, victimized, bullied, vilified and treated unfairly by members of the Department of Education'. She identified a number of Departmental officers and she requested that those officers not be present on the day she attended to view the documents. 7 The Department responded to the internal review request in the following terms: "1. Section 16 of the FOI Act provides that you have "a legally enforceable right to be given access to an agency's documents in accordance with this Act." No such enforceable right to documents which are the property and in the custody and control of ACER exists under the FOI Act. As you have been advised on several previous occasions, if you seek access to ACER's documents, you will need to approach ACER directly. Moreover, the FOI Act does not require the Department to certify the documents requested before providing access to them. As a result, I do not propose to vary Ms Blunden's determination on this point. 2. Miranda Public School, the Educational Measurement Directorate, the Selective High School and Opportunity Class Placement Unit and the Office of the Regional Director, Sydney have all advised that they do not hold any further documents relevant to your application. As a result, I do not propose to vary Ms Blunden's determination on this point. … In offering to allow you to come in and inspect the documents requested, being original tests and answer sheets, the Department has, in my view, complied with section 27. The Selective High School and Opportunity Class Placement Unit advises that: "The Opportunity Class Placement Test is a secure test. It would be appreciated if you ensured that, under no circumstances, Mrs Challita be permitted to take a copy or remove the enclosed copy of the OC Placement Test 2004. If the FOI and Privacy Unit decide that Mrs Challita be permitted to view the OC Placement Test 2004, the Unit should be notified so that a member of the Unit can attend the viewing, as has occurred in previous instances of this nature." Given the sensitivity and potential commercial value of the documents involved, I have determined that these conditions are reasonable in the circumstances. If you are not prepared to attend a viewing/meeting with senior members of the Selective High School and Opportunity Class Placement Unit and the FOI and Privacy Unit in attendance in order to obtain "reasonable access" to the documents requested, that is your choice. However, in that circumstance, access to the documents will not be offered in any form." 053290 8 In April 2005 Ms Challita's solicitors lodged an application with the Department seeking the following: "Selection Committees ("SC's") minutes of meetings 1. All minutes and notes of meetings attended by members of the SC's in connection with primary school Opportunity Class selection and appeals from their decisions in respect of the above for the period 1 January 2000 to 31 December 2001 in respect of the said XA; 2. All minutes and notes of meetings attended by members of the SC's in connection with primary school Opportunity Class selection and appeals from their decisions in respect of the above for the period 1 January 2001 to 31 December 2002 in respect of the said XB; 3. All minutes and notes of meetings attended by members of the SC's in connection with selective public high school selection and appeals from their decisions in respect of the above for the period 1 January 2002 to 31 December 2002 in respect of the said XA; 4. All minutes and notes of meetings attended by members of the SC's in connection with selective public high school selection and appeals from their decisions in respect of the above for the period 1 January 2002 to 31 December 2002 in respect of the said XB; Policy Documents in relation to SSU and its preparation of matters for SC's 5. All policy documents, procedure documents or directives, however so described, in relation to the preparation of matters by the SSU for the Appeals Panels in connection thereto. 6. All original files and folders presented to the Selection Committees and Appeals panels for the period 1 January 2000 to 31 December 2003 in connection with Opportunity Class applications for Year 5 entry for the said XA and XB 7. All original files and folders presented to the Selection Committees and Appeals panels for the period 1 January 2000 to 31 December 2003 in connection with Selective High School applications for entry for the said XA and XB IQ scores and test scores 8. All documents, notes, files, memoranda, email communications, tables used in connection with the calculation of the scores of the said XA including IQ scores and test scores for the period 1 January 2000 to 31 December 2003. 9. All documents, notes, files, memoranda, email communication, tables used in connection with the calculation of the scores of the said XB including IQ scores and test scores for the period 1 January 2000 to 31 December 2003. Data sheet entries 10. Up to date "Selective Schools System" Student Data sheets/ student case files for the said XB and XA for the period 1 January 2000 to the date of this request." 9 Mr John Harrison considered the application and determined to deny access to the documents requested, pursuant to section 25(1)(a1) of the FOI Act, as he considered that processing the application would represent an unreasonable diversion of the Department's resources. 10 Ms Challita was dissatisfied with Mr Harrison's determination and she sought an internal review. Dr Anthony Bendall, the Department's Manager, Freedom of Information and Privacy, undertook the internal review and determined not to vary the original determination. 11 In his reasons for his decision Dr Bendall indicated that he had consulted with the Department's Selective High School and Opportunity Class Placement Unit ("the Unit") and confirmed Mr Harrison's estimate of 140 hours work would be needed to process the application. The basis for this view was that the documents have been filed in disparate places and that due to limited resources, a casual staff member would need to be engaged and trained to search for the documents and then a senior officer would need to make the decision as to the relevance of the documents located. 12 Ms Challita has brought these applications seeking review of the Department's determinations. The evidence 13 The two matters were heard together. The Department relies on the evidence of Ms Magda Pollak and Dr Bendall. Ms Pollak is the Acting Manager of the Unit. Ms Pollak and Dr Bendall each provided written statements and appeared at the hearing, gave evidence and were subjected to cross-examination. 14 Ms Challita relies on her own evidence. She challenges the adequacy of the search conducted by the Department in relation to Selection Committees minutes and the assertion as to the time that will be required to consider her application. 15 Ms Challita contends that she should be provided with a proper certified copy of the test results from ACER's database rather than from the Department's database. She asks for a copy of the ACER originals, in order to satisfy herself that the database as it exists in ACER's files is the same as the database in the Department's files, so she wants some certification of a document in such a form. 16 Ms Pollak provided detailed evidence about the operations of the Unit, the selection process, the way a profile score is derived, the appeal process and the collation and verification of the results. 17 Dr Bendall provided evidence with respect to the efforts he had made to locate further documents in response to Ms Challita's assertion that she had not been provided with minutes of selection committee meetings concerning her daughter's application. He confirmed that no further relevant documents were able to be located. He also stated that the tests for the Opportunity Class are considered to be sensitive information because they are tests of ability not performance and it is customary to keep ability tests secure. Moreover, the tests are highly sought after by coaching colleges and release of the test papers would provide unfair pecuniary advantage to those organisations gaining access to the papers. 18 Ms Pollak provided evidence that the Selection Committees do not keep minutes. The Unit produces lists and reports of the various students applying for entry to a selective high school for the Committee to use in making their decision and those lists and reports are signed by the Committee members. The Committee members mark the list of student applicants at the "cut off mark" for selection and then a final confirmation report is produced. That report is a list of the students who are eligible to be offered a place and to be put on a reserve list. That list is then signed by the Committee members. It may or may not be otherwise annotated. 19 Ms Pollak also provided evidence about how a student's IQ test results can be used in calculating a profile score. Any IQ that is submitted can be considered at the discretion of the selection committee. She indicated the types of reasons for incorporating an IQ such as when the applicant is from interstate or overseas and as a result has not taken the opportunity class test. Selection committees use a model for incorporating IQ scores into a profile score. The Legislation 20 Under section 16 of the FOI Act a person has a right to apply for access to an agency's documents in accordance with the Act. The agency must determine whether or not the person will be granted the access sought. It may do so only on grounds specified in the FOI Act. The objects of the FOI Act make it clear that as far as possible the public should have the right to obtain access to government records. 21 Section 61 of the FOI Act places the onus of proving that a determination to refuse access to documents is justified on the agency that makes that determination. One ground on which the agency may refuse access to a document is that the document is exempt pursuant to section 25 of the FOI Act. An exempt document is defined by section 6 to include a document referred to in Schedule 1 of the FOI Act. The agency has a discretion to exercise under section 25. It "may" provide access to the document. It is not bound to refuse access if a document is exempt. 22 Section 25(1)(a1) of the FOI Act provides that an agency may refuse access to a document if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions. 23 Clause 16 of Schedule 1 to the FOI Act provides that a document is an exempt document if it contains matter the disclosure of which could reasonably be expected to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency or to prejudice the attainment of the objects of any test, examination or audit conducted by an agency and would, on balance, be contrary to the public interest. Findings and Decision 24 The issues for determination have narrowed somewhat as a consequence of arguments presented and concessions made by each of the parties. I propose to limit my discussion to those issues that remain in dispute between the parties. In doing so I make the generally observation that I am satisfied that the Department's search for documents is adequate. I also note that the level of distrust between the parties has given rise to issues that would not normally colour an FOI application to the same degree as is apparent here. I appreciate that Ms Challita is concerned about the involvement of particular officers of the Department in the consideration of her applications however in the circumstances it is my view that this is unavoidable. Section 18 of the FOI Act only requires that an application be dealt with by such officer as is directed by principal officer of the agency and there's no other onus on the agency to do anything more, particularly where no complaints have actually been substantiated. I therefore make no negative comments in regard to that issue. 053226 25 As I understand it, the issues in this matter have been narrowed to item (b) ie certified copies of test results, including a computer print out from ACER, concerning an application by WZ in relation the Opportunity Class test undertaken in August 2004; and item (e) ie minutes and notes of meetings attended by members of the Unit or any other person in connection with WZ's Opportunity Class selection, appeals and any decisions in respect thereof. The Department accepts that it has a right of access to ACER documents and therefore they are held for the purposes of the FOI Act. 26 In regard to item (b), Ms Challita would be satisfied if she could have a document that unequivocally identified itself as having come from ACER and was certified as having come from ACER in order to deal with her suspicion that it's just another version of a document put together by the department. It is apparent that the Department has provided a document that did not come from within the Department and that it says is identical to the document sought. There is no evidence that unequivocally indicates that the document came from ACER. The Department holds the document and has not established that it has been given to Ms Challita. In my view it is reasonable that the Department provide such a document. There is no obligation on the Department to certify the document as coming from ACER. It is a matter for the Department whether or not it chooses to do so. 27 Ms Challita is interested in the decision-making audit trail to ascertain the mechanism by which selection committees dealt with WZ's application. She seeks written information that would throw light on what actually happened before the selection committee and the appeal committee in relation to WZ's application for the opportunity class. 28 She conceded that the evidence shows that there are no minutes kept of these meetings. However, she says that 'annotated lists' exist and that these effectively constitute the minutes of the meetings. I agree with this submission. In my view the characterisation that the Department has attributed to these lists is too narrow. These are computerised lists which may be, but are not necessarily, annotated however the members of the committee sign at the bottom or sign the conflict of interest declaration. In my view these 'annotated lists' are notes of the meetings and therefore can be characterised as falling within the scope of the application which requested 'minutes and notes of meetings'. 29 Notwithstanding that view, I accept the evidence from the Department with respect to the amount of work involved in producing those lists in a form that would excise all personal information relating to other students. I accept that a junior staff member or a data entry person could not perform this work because of the sensitive and complicated nature of the information. In such circumstance section 25(1)(a1) of the FOI Act provides a basis for refusing access to the documents. 30 The "resources" to which s 25(l)(al) refers are resources which the agency had at the time when the request was lodged or had as at the date of the hearing. It does not mean resources that the respondent might be able to obtain or even resources constituted by the filling of establishment positions. Nor does it mean the whole of the resources of a large government department or agency. It means "the resources reasonably required to deal with an FOI application, consistent with attendance to other priorities. Re SRB and SRC and Department of Health, Housing, Local Government and Community Services (1994) 33 ALD 171 at 179. 31 In Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35, the Tribunal's Deputy president stated at paragraph 46: "46 There are a number of relevant considerations when determining whether an Agency has correctly refused access under s 25(1)(a1): - the number of documents requested, estimated or known; - the time required to locate, identify and schedule documents; and - the time to engage in consultation with third parties and determine whether or not to grant access." 32 Each application must be considered in its particular factual context balanced against the objects of the legislation. In the circumstances of this matter I accept that provision of these lists would place an unreasonably burden on the Department's resources. For this reason, it is my view that the lists need not be provided to Ms Challita. I therefore affirm this aspect of the decision. 053290 33 As I understand it, the main issue in this matter is a general position adopted by the Department that section 25(1)(a1) of the FOI Act provides a basis for refusing access to the documents that Ms Challita seeks. However, there is a specific issue with respect to one particular document. There was a separate objection made in relation to the charts that correlate an applicant's IQ with their profile score. 34 The Department is concerned that the effectiveness of the method or procedure of the conduct of these tests would be affected if these charts were released. Ms Pollak's evidence was that these are very competitive processes. Students compete for places in what are very highly regarded schools. There are quite likely going to be people who are not as rigorous as they might be in providing IQ reports. IQ reports are not relied on in every case. Ms Pollak particularly identified the use of IQ reports where students are from overseas and so they don't have comparative academic results and so their. In that kind of situation it would be difficult to check the quality of the IQ report. The process could be manipulated if fabricated psychological reports are provided on behalf of applicants. The Department is concerned that the likelihood of this happening may be increased if the IQ levels required to obtain entry to particular selective schools became generally known. 35 In contrast, Mr Jackson argues that the processes for correlating IQ scores with profile scores should be open transparent processes. He says that if IQ tests can be manipulated then that is a reason not to take them into account at all. It is not a reason to deny applicants information about how they might be treated. 36 On the evidence that I have before me I am satisfied that the provision of these charts to Ms Challita might well affect the effectiveness of the method or procedure of the conduct of these tests. However, for the document to be exempt pursuant to Clause 16 of Schedule 1 to the FOI Act the release must on balance, be contrary to the public interest. I do not consider that to be the case. I agree with Mr Jackson. I see no reason why parents should not know the basis on which their children are assessed against other children. In my view the chart should be released. 37 With respect to the remainder of this application, I accept the Department's assertion that that the work involved in processing Ms Challita's request would substantially and unreasonably divert the resources of the Department from its other operations. In my view, Mr Jackson submission that this would effectively involve spending nearly a week on each Lever arch file does not provide a fair assessment of the work involved. I accept the evidence provided by both Dr Bendall and Ms Pollak in regard to this issue. I therefore affirm this aspect of the decision. Orders 1. In application No. 053226 I order that the Department is to provide Ms Challita with copies of test results from ACER as identified in paragraph (b) of her original FOI application. The decision under review is otherwise affirmed. 2. In application No. 053290 I order that the Department is to provide Ms Challita with a copy of the charts that are used by the Selective High School and Opportunity Class Placement Unit to correlate an IQ with a profile score. The decision under review is otherwise affirmed. 12/05/2006 - To anonymise names - Paragraph(s) 1, 2, 5, 8, 25 and 27 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.