Anderson -v- The Pro-Vice-Chancellor, Charles Sturt University [2003] NSWADT 121

CITATION: Anderson -v- The Pro-Vice-Chancellor, Charles Sturt University [2003] NSWADT 121 DIVISION: General Division APPLICANT PARTIES: Robert Charles Anderson RESPONDENT The Pro-Vice Chancellor, Charles Sturt University FILE NUMBER: 023026 HEARING DATES: On the papers SUBMISSIONS CLOSED: 02/03/2003 DATE OF DECISION: 05/23/2003

BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - adequacy of search - amendment of documents - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - amendment of documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 APPLICANT REPRESENTATION: In Person RESPONDENT Dr P Hodgson, Charles Sturt University ORDERS: The application is dismissed, with the qualification that the applicant's score for the course in issue is revised to the extent acknowledged by the University in its letter of 30 October 2002 to the Tribunal.

1 The review applicant, Robert Charles Anderson (Mr Anderson), has applied to the Tribunal for review of a determination made by the respondent, Charles Sturt University (the University), under the Freedom of Information Act 1989 (FOIA). The original determination of the University is dated 16 October 2001. The applicant requested an internal review. The University Secretary replied by letter dated 8 February 2002 stating that it considered that it had fully complied; accordingly there was nothing to review. Consistently with this view, there is no reference in the University's determination to any claims for exemption. 2 The application for review was filed, a little prematurely, with the Tribunal on 4 February 2002. During 2002 the Tribunal held several planning meetings culminating in a telephone hearing on 21 October 2002, at which point an apparent error in an aspect of the University's documentation was discovered, leading to a further telephone hearing on 25 November 2002. 3 The FOI application has as its broader context a long-running dispute between Mr Anderson and the University over the grade awarded to him in the subject, BIO461, Applied Ecological Conservation, when he had been a student at the University in 1996. The University has dealt with his objection in accordance with its policies and procedures, and rejected it. Mr Anderson has continued to press to see all relevant documents in order to challenge the University's decision. The assessment components of the subject involved written assignments (handed back to the students with examiner's comments and a mark) and a final examination (scrip book handed in, marked, not returned to the student and kept for 4 months after which it is destroyed in accordance with policy). 4 As it finally evolved, the applicant's case had two elements. One, he claimed that all relevant documents had not been disclosed to him; and two, he claimed that the mark awarded in respect of BIO461 was incorrect. 5 It is accepted that the Tribunal can examine an agency's response to an FOI application to ascertain whether all relevant documents have been identified. The issue to be addressed is whether there was an adequate search: Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52. 6 As to correction, it is accepted in this case that the documents disclosed contain 'personal information' within the meaning of FOIA. Section 39 provides: ' 39. Right to apply for amendment of agencies' records A person to whom access to an agency's document has been given may apply for the amendment of the agency's records: (a) if the document contains information concerning the person's personal affairs, and (b) if the information is available for use by the agency in connection with its administrative functions, and (c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading.' 7 Following the telephone hearing of 25 November 2002, it was agreed by the parties that a decision would be made on the papers, as permitted by s 76 of the Administrative Decisions Tribunal Act 1997 . The parties were given 10 days in which to file any further submissions. 8 Mr Anderson made several further submissions by fax on 6 December 2002, by fax on 3 January 2003 and by fax on 28 January 2003. Background 9 In 1996 the University decided that Mr Anderson did not pass BIO461, and marked him as 'Failed. Withdrawn'. As noted, this decision was contested by the applicant, and was altered in 1998 to 'Approved. Withdrawn'. The applicant has contended throughout that on the basis of the work submitted and marks recorded for that work he should have been awarded a pass grade. The University gave its final decision on the issue, rejecting the applicant's claim, by letter from the Dean of the Faculty of Science and Agriculture dated 25 February 1999. 10 During 1999 the applicant asked to see all the files pertaining to him, and the University made arrangements under which he could see the files. He did not inspect the files. It had not dealt with the request as one made under FOIA, but simply applied its own policies as they related to requests of this kind from students. 11 Subsequently Mr Anderson claimed that the request had been made formally pursuant to FOIA. He complained to the Ombudsman that the University had not responded appropriately to the request. The applicant also complained to the Ombudsman over the University's handling of his request for re-consideration of his work and assignments in respect of BIO461; and its failure to award him a pass grade. The Acting Vice-Chancellor reaffirmed the University's decision in that regard by letter dated 4 January 2001. The Ombudsman suggested that Mr Anderson take his complaint to the University and given them an opportunity first to respond to it. 12 These events provide the background to the request to the University which is the FOI subject of the present application. It was made on 10 September 2001, as follows: I am writing to request an answer to my correspondence of 29/8/01, and enclose re my request for my student and other files to be numbered chronologically and sent to me. I also request viewing the originals at a venue in Melbourne such as the Ombudsman as your reply 4 Jan was taken. 13 Mr Anderson lived in Wagga Wagga in 1996, and attended that campus of the University. The University holds its student files at its Student Administration offices in Albury. Mr Anderson had by this time moved to Melbourne, and that is the background to his request that the files be made available to him in Melbourne. 14 The University responded to the request by providing Mr Anderson with a photocopy of all material that it held on his student file. It considers, as previously noted, that it has fully replied to the request. 15 In his application for review by the Tribunal and in subsequent planning meetings, Mr Anderson was critical of the way in which the documents released were presented to him. He was given an unnumbered set of pages from his file. He said in his application: It is necessary for me to know how many folio pages they sent me and their possible sources of 'FOI' information. Some folios are illegible & need explanation, correction as incorrect sometimes. 16 As these comments suggest, and as noted previously, the issues raised by Mr Anderson were: (1) whether a complete and adequate search had been undertaken in response to his request; and (2) a claim that the information released should be amended, especially in respect of what was revealed in relation to the marking process giving rise to the non-passing grade. Adequacy of Search 17 As to (1), it is accepted that the Tribunal may examine a determination to ascertain whether it is fully responsive to the request. The Tribunal may inquire into the question of whether an adequate search has occurred. In this instance the only evidence on the issue took the form of a statutory declaration dated 12 June 2002 made by the University Secretary, John Cook. Mr Cook declared that all documents held in the Student Administration Office at the University's Albury-Wodonga Campus and all documents held in the Office of Dean, Faculty of Science and Agriculture, had been provided to the applicant in response to his request. 18 On its face this is a complete answer to Mr Anderson's concern. 19 Mr Anderson contended that the material produced did not include a copy of his examination answer booklet for BIO461. He protested that the University should have retained the booklet as he had made his first request to see the marked booklet within 4 months of the examination. As noted earlier, the reference to 4 months is relevant in that the University policy provides that after 4 months the booklets will be destroyed. This is a matter which can not be addressed by the Tribunal. 20 The question is simply whether the FOI request now under consideration was the subject of an adequate search and response. An agency is not bound by FOIA to keep documents in anticipation of a possible request or dispute. FOIA simply deals with the record system as it exists at the time a request is made. The University's declaration is that it gave Mr Anderson everything it had at that time. 21 There is no relevant basis for objection to the search. 22 Mr Anderson's contention is rejected. Correction 23 As to (2), the correction issue, it can be seen that, in one sense, Mr Anderson is seeking to re-agitate his dispute with the University over the grade that he was given in BIO461. 24 It is not, I consider, permissible for a person in Mr Anderson's position – a student disappointed by a mark – to agitate via FOIA the academic judgment involved in the assessment of academic work. But it is permissible to examine the records to see if there are any infringements of the standards set down in paragraph (c) of s 39. 25 A hearing was held on 21 October 2002. At this point a possible discrepancy in the material was noted by the Tribunal. As a consequence the Tribunal was unable to dispose of the matter, and wrote later that day, as follows, to the University: At the hearing on 21 October 2002 the applicant referred to material which would appear to involve a challenge to the accuracy of calculation, and therefore fall within the jurisdiction of the Tribunal. The applicant referred to the following matters. (1) Attached to the letter from Dean Pratley, dated 5 February 1999 - briefing note by Frances Baker. There appears to be an error in calculation here. The total should be 53/95 not 55/95 and the percentage consequently should be 55.7%. If the figure is in fact 55/95 the percentage should be 57.9%. On either premise the percentage given in the briefing note of 50.3% is wrong. (2) Then there is a further complication. The page bearing the fax imprint, pg:32, shows that the components of the course totalled 100% (not 95) and were subdivided 30%, 15%, 15% and 40%. This page appears to be part of the course information material for 1996, and governed marking in that year. If the scores shown in the briefing note, referred to at (1) above, are adjusted to take account of that division of marks, then the marks shown in the briefing note would adjust to: 22.5, 9, 5.25 and 21.7, for a total of 58.45. A score of 58.45% puts the applicant well above the required overall pass mark of 50%, but it remains the case that he does not have a passing grade in all four components. He has failed to obtain a pass mark in the third assignment, known as assignment 2b. The passing grade was 60% and his score was 7 out of 20 - in the Frances Baker briefing note. I note that the actual figure for assignment 2b was 6.75 out of 20. This is revealed by the examiner's mark sheet which is Exhibit F to the applicant's affidavit filed on 21 October 2002. (3) The applicant contends that in respect of assignment 2b not all of his work was taken into account. He says that he put in 4 pieces of work for assignment 2b late with approval, and 1 piece of work in respect of assignment 2a late with approval. He says that he had permission to be two weeks late (due to an illness he was suffering at the time). He refers to the mark sheet for assignment 2b and contends, as I understand it, that as it is dated 6 May 1996, the examiner could only have had regard to the material put in by that time. He says that assignment 2b consisted of 10 questions, each worth 2 points. He contends that the 6.75 (rounded, it seems, to 7) was a score achieved for 6 questions, i.e. for 12 points. He contends that he should be given the benefit of that assessment. That would lift him to 58.3% for that component (if 7/12 is used), which still falls just short of the passing grade for that component. He then contends that he should be accorded an exercise of discretion that takes account of his disability. In support of his contention that he put in two lots of work for assignment 2b he refers to receipts issued by the OLI Liaison Office, both referring to assignment 2, dated 6 May and 22 May 1996 respectively (Ex C to affidavit dated 21 October 2002). I would be grateful for the University's response to the above outline of what I understand to be the applicant's case. If items (1) and (2) of the above account prove to be accurate, then I would be inclined to order amendment to show the figures expressed in the appropriate divisions adding up to 58.45% as the overall mark. The situation in relation to item (3) may be more contentious. If the applicant is right, then it may be that a further amendment is required along the lines outlined above. The ultimate decision of whether, once any amendments are settled, the outcome warrants conferral of a pass is one, of course, for the respondent. It is not a matter that can be the subject of an order, as I see it, under the Freedom of Information Act. I would be grateful for your submissions on the above points by 18 November 2002. 26 The University replied as follows by memorandum from the Dean, Faculty of Science and Agriculture: The Faculty provides the following response in relation to the three main points raised by Judge O'Connor. It should be noted that, given the age of this case, the Faculty does not have any additional documentation relating to Mr Anderson. Comment is based solely on the information contained in the file provided by Mr Cook. 1) It is agreed that there is a calculation error in the email prepared by Ms Baker. The total raw score should be 53/95, not 55/95 as indicated by Ms Baker. The percentage score should be 55.8%, and not 50.3% as indicated by Ms Baker. I am unable to advise as to whether this error was the result of incorrect calculation by Ms Baker in preparing her email or an error made by the subject coordinator and subsequently transcribed by Ms Baker. In any case this particular error should have no bearing on the outcome of the case. It does not change the fact that Mr Anderson achieved a total mark in excess of 50% (required for a pass) but failed to achieve the necessary passing grade for Assignment 2b. 2) I am not sure why the Subject Coordinator chose the particular marking totals used for each assignment. Regardless of the marking totals used for the assignments, the proportion of the assessment total represented by each assignment remains as per that indicated in the subject outline. The Judge's adjustment of Mr Anderson's results to reflect the Assessment Summary shown in the Subject Outline is correct. This however does not result in any change to the overall situation. 3) It is initially contended that Mr Anderson submitted four pieces of work for Assignment 2b, whilst later in the paragraph it is contended that he only submitted two pieces of work for this assignment. The material on the file supports the following: - assignment 2a submitted 6 May 1996 - assignment 2b submitted 6 May 1996 (6 of 10 questions attempted) - one further piece of work for assignment 2 submitted 22 May 1996 as per the OLI acknowledgment. The OLI acknowledgment does not provide any indication as to what this additional material comprised, or whether it related to Assignment 2a or Assignment 2b. Mr Anderson contends that the examiner could only have had regard to material submitted by 6 May 1996 in awarding a mark of 6.75/20. This seems a reasonable assumption and it would follow that if in the material Mr Anderson submitted by this date he failed to answer 4 of the 10 required questions then the examiner is correct in awarding zero marks for these questions not 6.75/20 as Mr Anderson contends. I am unable to provide any advice as to what became of any additional material which may have been submitted through the OLI. Mr Anderson has provided copies of other assignment material but has not provided a copy of any of this 'additional' material. It should also be noted that in 1998 Mr Anderson was given the opportunity to resubmit his assignments for re-marking by Associate Professor Klomp. He failed to resubmit any material at this time. Mr Anderson contends that some allowances should be made as result of his medical condition. Allowances were made in the provision of additional time for the submission of his assignment work. Mr Anderson cannot 'double dip' and receive marking concessions in addition to the deadline extensions. Regardless of concessions Mr Anderson still has to meet the standards of the subject. Based on the material we have to hand it is clear that we made sufficient allowance for Mr Anderson's medical condition. Notwithstanding these allowances, Mr Anderson failed to achieve the necessary pass mark for Assignment 2b. Failing this assignment prevents Mr Anderson from being awarded a pass for the subject. In 1998 he was given ample opportunity to resolve the situation in regard to our alleged failure to mark 'additional' assignment material. He did not take this opportunity. Due to his medical problems we amended his FW grade to AW - I see nothing in the application made to the Administrative Decisions Tribunal which warrants us to now change this grade. 27 There were requests in the further submissions made by Mr Anderson in December and January for the Tribunal to issue a summons to the University to produce documents and for his costs in having various documents copied. 28 There is, I consider, no proper forensic purpose for issuance of a summons. The purpose of the summons was to seek to obtain by that form of process the same documents as were said to be the subject of the FOI application and were said not to have been disclosed. 29 Costs powers are directed primarily to the recovery of any legal costs incurred by a party who is successful in receiving an award of costs. Administrative expenses incurred in respect of the conduct of litigation may also be the subject of a costs order. In FOI proceedings the usual position is that the Tribunal makes no order for costs. Mr Anderson would have to show that there were 'special circumstances' justifying an award of costs in his favour: see s 88 of the Administrative Decisions Tribunal Act 1997. Normally a costs order would only be made at the conclusion of proceedings. There is nothing in this case to support an adverse finding against the University in relation to costs. 30 As to the substantive content of Mr Anderson's subsequent submissions, they sought to place before the Tribunal various documents, including marked assignments, said to bear on the question of the correct score. They seek to re-agitate matters with which the University has dealt in relation to the effect of a disability affecting Mr Anderson on his capacity at the time to complete fully assignment 2b. As noted above, in relation to its final total mark, the University has conceded a mathematical error. 31 It is, in my view, a matter to be regretted that the University did not itself pick up the mathematical error at a much earlier stage of the argument by Mr Anderson over the grade. According to the University, which I accept, the error is not of sufficient degree to lift Mr Anderson above the pass threshold. I repeat - the discretionary academic considerations open to the University to exercise to lift a below-pass mark to the pass level are not matters to be dealt with in an FOI application. Order 32 The application is dismissed, with the qualification that the applicant's score for the course in issue is revised to the extent acknowledged by the University in its letter of 30 October 2002 to the Tribunal.