Mannix v Department of Education and Communities [2014] NSWCATAD 35

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mannix v Department of Education and Communities [2014] NSWCATAD 35 Hearing dates: 17 February 2014 Decision date: 24 March 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: G.D. Walker, Senior Member Decision: The decision under review is affirmed Catchwords: Government information-test paper for opportunity class placement -risk management -- coaching colleges - balancing considerations Legislation Cited: Administrative Decisions Tribunal Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009 Cases Cited: Australians for Sustainable Development v Barangaroo Delivery Authority [2013] NSWADT 252; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Flack v Commissioner of Police [2011] NSWADT 286; Hurst v Wagga Wagga City Council [2011] NSWADT 307; Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195. Category: Principal judgment Parties: K Mannix (Applicant) Representation: K Mannix (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 133214

reasons for decision

Background 1The applicant Mrs K Mannix is the mother of twins, Mark and Rebecca (not their real names). Both children undertook the 2012 Opportunity Class Placement Test (OC test), which identifies gifted and talented pupils for the 1200 OC places available each year to city and country children throughout New South Wales. Both Mark and Rebecca received the same mark for the mathematics component of the 2012 OC test. On the basis of their performance and grades at local public school, however, Mrs Mannix believes Mark's mathematical aptitude is far superior to his sister's and that there must have been a mistake in the administration of the test. 2On 30 October 2012, the applicant e-mailed the High Performing Students unit of the Department of Education and Communities (DEC) expressing concerns about Mark's test result. Between 31 October and 6 November 2012 the Unit responded to the applicant's e-mails, providing her with a copy of the twins' answer booklets, screenshots showing the raw marks Mark received in the test, guidance on how the screenshots are interpreted, information about the 2012 OC appeal process, and other information including reasons why the test question booklet could not be made available to the applicant, and information about the difference between the OC test and curriculum-based tests. 3On 7 November 2012 the applicant lodged a formal access application under the Government Information (Public Access) Act (GIPA Act) seeking access to the 2012 OC test question booklet. The application was refused by Ms Cheryl Best, General Manager, Learning and Development, on behalf the respondent by decision dated 28 November 2012, in which the respondent found an overriding public interest against disclosure of the 2012 OC test question booklet. The applicant subsequently sought a review from the Information and Privacy Commission. On 10 July 2013 the Commission in its report declined to make any recommendations, thereby upholding the department's decision. 4The applicant applied to the Administrative Decisions Tribunal (ADT) for review of the department's decision on 18 July 2013. As that tribunal was superseded on 1 January 2014 by the Civil and Administrative Tribunal, it should be noted that the proceedings continue in the present tribunal and that the law to be applied is that which would have applied but for the enactment of the Civil and Administrative Tribunal Act 2013 (CAT Act): schedule 1, part 2, division 3, subdivision 2, item 7 of the CAT Act.