Challita v NSW Department of Education & Training

Applicable legislation 7Section 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. 8Section 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. 9The onus is on the agency to satisfy the Tribunal that its decision was justified: section 61 of the FOI Act. 10Clause 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 11Each 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 12The 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 (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) 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". 13Colakovski 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.." 14Similar reasoning may be applied to the description "information concerning the personal affairs of any person" contained in clause 6 of the FOI Act. 15In 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." 16The 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. 17Case 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. 18In 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)". 19Deputy 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"? 20The 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" 21As 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]. 22The comments of the AAT in Re Chandra and Minister for Immigration and Ethnic Affairs (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." 23In 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. 24This 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". 25The Tribunal held that in these circumstances disclosure would be unreasonable. 26In 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". 27As 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. 28In 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. 29The Appeal Panel (and the Court of Appeal in Marke ) acknowledged that the Applicants cannot be restrained from further disclosure. 30In Ritson v Commissioner of Police, NS W Police Force [2010] NSWADT 22 at [66] and in Head v NSW Commissioner of Police [2010] NSWADT 27 at [62], I referred to GJ and to Marke , and concluded that an Applicant's motive may be relevant to the assessment of whether the release of a document would be unreasonable.

The Respondent's case 31The Respondent relies on the statement of Elissa Stathis, the Manager of the Department's Information Access Unit. Ms Stathis set out the purpose and contents of the Marks Reports. She also describes the confidentiality accorded to the testing of children for entry into selective schools, and the limited circumstances in which certain information relating to the results of that testing for each candidate, is disclosed. 32The Respondent submits that disclosing the names of the schools in each of the Marks Reports would involve the disclosure of information "concerning the personal affairs" of students listed in those Reports. 33In her statement, Ms Stathis set out how the Marks Reports lists, for each candidate, his or her calculated profile score, as well as a breakdown of the student's scores for each component of the selective high school ("SHS") placement assessment. This includes the raw and moderated school assessment scores for English and mathematics, as well as the scaled test scores for English, writing, mathematics and general ability. 34Ms Stathis has identified how the Marks Report provides a level of detail above and beyond what is provided to parents of candidates for SHS placement assessment (the child's calculated profile score, and, if further information is requested, the child's raw school assessment scores and raw SHS placement test scores). 35The Respondent submits that if considered in isolation, the name of a school does not concern the personal affairs of individual students. However, the school name has to be viewed in the context of a Marks Report from which all information (other than the names of individual candidates and their student numbers) has already been divulged. In this context the name of a school would reveal, at least to a person familiar with the candidature of a particular school, the identity of one or more of the students listed in the Marks Report, and thereby the student's scores for different components of the SHS placement assessment, as well as the student's calculated profile score. 36In her statement, Ms Stathis set out how in the Marks Reports the results are arranged by student surname and in alphabetical order, and how it would be reasonable for a person to deduce this order. 37Ms Stathis also outlined how, once alphabetical order is ascertained, it would be reasonably likely that a person familiar with the candidature of students for SHS entry from Year 5 of the relevant primary school, could infer the identity of one or more students simply by reference to their place in the list. 38Ms Stathis also described the procedures for assembling and seating students for the SHS placement test in alphabetical order by family name at the same test centre. This assists a parent or student to perceive and recall who from a primary school is seeking SHS entry, and to match results in the Marks Reports to particular students. In her statement, Ms Stathis also indicates that familiarity with the candidature for SHS entry at a primary school is likely to occur through daily interactions between parents and students. 39It is particularly likely that the identity of candidates with family names at the start or end of the alphabet could be ascertained from the Marks Reports. It is also possible that the identity of students in other positions on the list could be deduced, for example, where a student or parent identifies their own calculated profile score, and is able to match adjacent or surrounding rows of results to other students. 40The Respondent submits that in this regard, the name of the school for each Marks Report is information from which, or by use of which students' identities (and therefore their SHS placement assessment scores) can reasonably be identified. The school names are akin to the handwriting in examination responses, which in Rabel , was held to relate to the personal affairs of the students concerned, and in Re Redfern , to fall within the definition of "personal information". 41The Respondent submits that, as emphasised by Lockhart J at Colakovski , the school names should not be considered in the abstract, but on the basis that they are contained in documents which contain significant detail about individual candidates' scores for each component of SHS placement assessment. 42The Respondent is not submitting that the Applicants themselves would or could seek to infer the identity of students in each of the Marks Reports. The Applicants stated in their application that "I understand that the names and/or student numbers will be blacked out for privacy reasons". The Respondent submits that this indicates that the Applicants appreciate that this information should remain confidential. 43The Respondent submits that once access to documents is provided in response to an FOI application, the FOI Act does not seek to restrain in any way the use that a citizen may make of the documents. 44In her statement, Ms Stathis referred to an internet blog maintained by Ms Challita. Ms Stathis stated: "... I am aware that in the blog Mrs Challita comments on past SHS placement processes, and that she has previously published documents released to her under the Freedom of Information Act 1989 on that topic on her blog. My expectation is therefore that if the Marks Reports (incorporating reference to school names) are released, they will also end up on Mrs Challita's blog, and be publicly accessible. 42 In my view, it would be reasonable for any person to deduce that applicants' names were listed alphabetically by family name in the Marks Report. This is a logical way of presenting academic results or test scores. Alphabetical order is also consistent with the way candidates are arranged during the SHS Placement Test, as described above at para. 17, and would sensibly occur to someone who had attended the test, or had their child attend the test. 43 Once alphabetical order is ascertained, it would be possible for a person with knowledge of which students from the primary school have applied for SHS entry in 2010, to deduce the identity of one or more students simply by reference to their place in the list. This is particularly likely to be the case for students with surnames at the start or the end of the alphabet, but could also occur for other students in the list. 44 In terms of knowledge of the SHS candidature from particular primary schools, as noted above, students from the same school go to the same test centre, dressed in school uniform, and are assembled and seated alphabetically by family name. 45 This process indicates that candidates are likely to be familiar with the other students from their primary school who are applying for SHS entry. Lining up and sitting in alphabetical order also increases the possibility that if a student or parent identified their own profile score in the Marks Report, they could match adjacent or surrounding rows of results to other students whose surnames were close to them in alphabetical order. 46 Parents may also have gained familiarity with the SHS candidature from their child's school through dropping their children off at the test centre. The first dot point on page 27 of Attachment I3 indicates that parents are able to remain on the school grounds while students are assembled and marshalled into the test room. 47 Apart from knowledge obtained through attending the SHS Placement Test, students and parents are also, in my view, likely to be aware of who is applying for SHS entry through their interactions with each other, both within and outside the primary school environment. This is particularly likely to be the case for smaller schools. 48 Hypothetically, all or the vast majority of students from a primary school year could apply for SHS entry, allowing someone with access to a class or year level list to largely match the results to a Marks Report. 45In this regard, the Respondent submits that Mr Challita's maintenance of an internet blog, and her publication of documents previously released to her under the FOI Act on that blog is relevant. It submits that Ms Challita is likely to publish the Marks Reports on the blog, and otherwise to seek maximum publicity for the documents. 46In regard to the question of whether disclosure would be unreasonable, the Respondent says that it has struck an appropriate balance between the public interest in protecting personal privacy against the public interest in the Applicants being given access to the document. 47In terms of the public interest in protecting personal privacy, the Respondent submits that there is an expectation on the part of parents and students, that applications for SHS entry and SHS placement assessment results will be treated confidentiality, and the student's privacy protected. The Respondent submits that this expectation is generated by the confidentiality measures underpinning the SHS placement assessment process, including the procedures for conducting the SHS Placement Test, and notifying parents of the results. The Respondent relies on the evidence of Ms Stathis in this regard. Expectations of confidentiality were considered highly relevant to the consideration of the public interest in Rabel and in Re Redfern . 48It is Ms Stathis's view that, if SHS placement assessment results included in the Marks Reports were disclosed, the students and parents of students whose scores were divulged could suffer stress, anxiety, distress or embarrassment. The Respondent submits that even if only one or some of the students in a Marks Report were to be identified (for example, the student at the first or final row of a Report), it is unreasonable and unfair for these students to be singled out in this manner, and denied the confidentiality and anonymity accorded to other students' results. Other candidates and parents could remain fearful that their identities and results would also eventually be inferred and disclosed. 49As in Rabel , the Respondent submits that the disclosure of individual student's identities and thereby their results through revealing the names of schools in the Marks Report would prejudice the integrity of the SHS assessment process. 50Ms Stathis has set out in her statement the information that is available to parents regarding the SHS placement assessment scores, including the breakdown of results available once a Request for Scores form is completed. The Respondent contends that in assessing the public interest in the Applicants (and possibly the broader public) being given access to the names of the schools in the Marks Reports, the information already available regarding SHS placement assessment results needs to be taken into account. The Respondent says that the school names in the Marks Reports are unlikely to assist the Applicants to discover and understood the SHS placement assessment process, beyond what has already been ascertained. 51The Respondent acknowledges that withholding the names of each of the schools (as well as the candidates' names and student numbers) does not fully satisfy the Applicants' curiosity, but says that it is an appropriate balance between the competing public interests in the circumstances.

The Applicants' case 52The Applicants rely on a statement dated 26 August 2010. it is apparently written by Ms Challita but attributed to both of the Applicants and is stated to be in response to Ms Stathis' statement. The Applicants stated: ISSUE 1 - School names removed from Primary School Marks reports produced under FOI 4. I agree that entry to SHS in Year 7 starts with an application by the child's parent(s). The Application form is submitted to the child's current primary school for processing and forwarded by the school to the Departments' Selective High School and Opportunity Class Placement Unit. Generally children do not know who is applying from their year as it normally isn't a topic of conversation in the playground. Parents and students only know of other students sitting for the test if they are good friends and if the parents/students discuss Selective School matters. There is no public notification of who is or isn't sitting for the test. 5. It is noted from the information provided by the [Respondent] that the school assessment score is subjective as it is a ranking of students which isn't based entirely on actual test marks and involves a combination of two or more of the following: a) Teacher's judgments; b) assessment of class work; c) assignments; and d) testing. 6. The SHS Placement test is set externally by the Australian Council of Educational Research (ACER). The test is not related to or aligned to the school curriculum and is designed to discriminate at very high levels of academic ability. 100's of students attend the test centre, usually at a local high school, from different local public schools. When arriving at the test centre, students wait in the playground with their parents until their school name is called and they are ushered into the hall. Ten/eleven year old Primary School students arrive at an unfamiliar high school with 100's of other primary school students and they are nervous and worried. For many this is the first high stake external test that they have been involved in. l would doubt very much that any student (as the parents are not allowed to go into the hall) would at any time be focused on memorising exactly which children were there from their school and whether they were sitting in alphabetical order. 7. As the Selective High School test is an academic competition where the winners are awarded with an offer of placement in a Selective High School, parents and students can already ascertain a fellow students score by whether they have been successful in being offered placement or not. Given that the DET publishes the cut off scores for the schools then parents already know as a minimum what score other students have been awarded by the Selective Schools Unit by the Selective High school that they attend. 8. In our view, releasing the name of the school that the Marks Report belongs to is highly unlikely to lead to 'actual' identification of students. It may be that some may believe that they might think that they know who belongs to the results but without the names of the students being noted and without knowing who sat the test, as not all students sit from across the whole year and applications are not made public, then there is no way that anybody could be sure and it would just be a guess. 9. This reasoning for withholding the names of the schools would be akin to the DET saying that they should no longer publish the names of the schools on the myschool website as, if a majority of students are not performing well, it could be that a parent could ascertain and identify these students. Or, if students are part of the advanced class, that parents might be believe that they can identify these students as those who are functioning at the highest band. 10. Given that the Selective School process is such an intense and fierce competition and Selective School placement is so highly sought after, the process of awarding places must be open and transparent and information about school results (schools being represented by students) need to be available to the public for scrutiny and discussion so as to keep the system and process honest. This is the purpose of the FOI Act. There is less anxiety and concern when the process is open and transparent. 11. Whilst I do have a blog called "Education - Keeping them Honest" the blog is in relation to my children and issues with the Department of Education's Selective Schools Unit. I have not identified any other student/s on my blog. I have no intention of publishing the Marks Report in its present form on my blog. I would be happy to give an undertaking that I will not scan and post the report on my blog. 12. I believe that because parents might raise concerns in relation to results is not a good reason to withhold results from the public. The whole purpose of FOI is to make information available so that the system and process can be open to discussion and scrutiny. This is so much more important when the stakes are high as they are with the Selective High School test. ISSUE 2: Omission of raw test marks from Primary School Marks Report produced under FOI 13. Primary School Marks reports produced under FOI in the Years 2000, 2001 and 2002 included the raw Selective School test marks of students. These raw marks have been omitted from the 2010 report produced under this FOI Application. I believe that the report is a generated report and I ask that the Tribunal make an order that the marks report be produced in its original format and form. If the public cannot rely on previous record keeping practices as a guide to the format and presentation of reports and documents produced by the Department of Education then how can the public can be sure that information/documents are not being purposely prepared with information missing or deleted in order to withhold information from the public or so as to achieve certain outcomes?

Discussion 53I generally agree with the Respondent's submission with respect to the legal principles that apply to this matter. I agree that if considered in isolation, the name of a school does not concern the personal affairs of individual students. In my view, the factor that would change the categorisation of the information would be the possibility of the information becoming publicly available. 54I also agree that the fact that Ms Challita maintains a blog and the history of Ms Challita uploading documents obtained under Freedom of Information are relevant factors to be taken into account in these proceedings. I agree that there is a real possibility that individual students might be able to be identified if the school names were published and the information retained its current form. This would be because of the alphabetical ranking of the students' names. 55I accept Ms Stathis's assessment of the likely impact on students and parents should that occur. 56However, I note the statement paragraph 11 of Ms Challita's statement that her blog is maintained in relation to the Applicants' children and issues with the Respondent's Selective Schools Unit. There is no basis on which I could form the view that Ms Challita has ever identified any other students on her blog. 57I accept Ms Challita's statement that she has no intention of publishing the Marks Report in its present form on her blog. 58I note Ms Challita's statement that "I would be happy to give an undertaking that I will not scan and post the report on my blog". I infer from that statement that it is her intention that she retain the right to post the information in some other form. 59In my view, any real risk of identifying students would be removed if the alphabetical ranking of the information was removed. In the circumstances, it is my view that it would not be unreasonable to release the information in its present form with the school names identified. 60I note the Respondent's argument with respect to the omission of raw test marks from Marks Report on the basis that this information is no longer contained in such reports. I agree with the Respondent's submission that the information on the raw test marks falls outside the scope of the application. 61In my view, the correct and preferable decision is to set aside the decision to exclude the school names from the Marks Reports released to the Applicants. In its place the order should be made that the school names be included in the Marks Reports released to the Applicants. The decision should be otherwise affirmed.

Orders

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.

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. Decision last updated: 07 March 2012