Freedom of Information Act 1982, ss. 32(a)(b), 36(1)(a), 36(1)(b), 36(5), 36(6), 40(1)(a), 40(1)(b), 40(1)(d), 40(2)

Re Waterford and Department of Treasury (No. 2) (1984) ADMN 92-002

Harris v Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551

Harris v Australian Broadcasting Corporation [1984] FCA 8; (1984) 51 ALR 581

Kavvadias v The Commonwealth of Australia [1984] FCA 179; (1984) 54 ALR 285

Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313

Re Heaney and Public Service Board (1984) ADMN 92-021

Re Burns and Australian National University (1984) ADMN 92-009

The Tribunal decides that none of the documents to which access is sought are exempt documents under s. 36 or s. 40 of the Freedom of Information Act 1982 ("the Act").

The Tribunal reserves liberty to the respondent to apply, within 14 (fourteen) days from the date of this decision, if the respondent wishes to be heard with respect to the claims of exemption under s. 45 of the Act.

In the event that the respondent does not wish to be so heard, the Tribunal will, on the request of the parties, make such further orders as may be appropriate to carry its decision into effect.

These applications for review, which by consent were heard together, raise some important questions about the impact of the Freedom of Information Act 1982 upon the Australian National University. The questions at issue were substantially identical in each case.

Each of the applicants graduated from the Australian National University in 1983 with the degree of Bachelor of Arts with Honours in History. Consistently with the practices of the History Department at the relevant times, the applicants received, during their respective courses, written and oral comments from their lecturers and examiners on their work in the various units. However, it was not the practice of the Department to allow students access to the Record Sheets maintained by the teaching staff recording their comments as an aid to the assessment of student performance in each unit. In addition some information relating to the detailed assessment of the Honours units was withheld.

These 5 applicants have sought access under the Freedom of Information Act 1982 ("the Act") to such information in documentary form held by the University relating to the assessment of their student performance as has hitherto been withheld. Those requests having been refused on the grounds that the documents were exempt documents by virtue of ss. 36, 40 and 45 of the Act, the applicants have now applied to this Tribunal for review.

The questions at issue were substantially identical in each case. Whilst I heard evidence from each of the 5 applicants, the major concentration throughout the hearing was upon the facts relating to the case of Mr M.G. James. I propose therefore to refer principally to that evidence for the purposes of these reasons for decision.

The documents identified by the University as the documents to which Mr James's request for access relates were:

1G, History 2/3A Honours (1981), History 2/3D

Honours (1981), History 2/3F Honours (1982),

History 4C (1983);

(b) Lecturer's notes on essay submitted in History

4B (1983);

(c) Supervisor's certificate of completion of

History 4A thesis;

(d) Reports by two examiners on History 4A thesis;

(e) Grade Completion Sheet maintained by the Head

of the Department of History recording the raw

and final grades for each component of the

Honours course (History 4A, 4B and 4C) and the

final grade awarded.

In a letter to Mr James from the Registrar of the University dated 13

February 1984 it was said that the reports referred to in para (d) above "will be available to the applicant after deletion of (i) the examiners' names (unless the examiners expressly agree to their names being released), (ii) references to other students, and (iii) the grade awarded to the thesis by the examiner". (see Exhibit T3) In the s. 37 statement relating to Mr James' application it was said that the Registrar had granted access accordingly (see para 6). For the purposes of my decision, I am assuming, therefore, that the examiners' reports have been made available in each case, subject to the deletions referred to by the Registrar. Mr P. Bayne who represented the applicants, informed me that his clients did not seek access to any references to other students (Transcript 39). Thus the claim of exemption in respect of History 4A thesis reports ultimately related to withholding the names of the examiners (where they did not agree to disclosure) and to withholding the raw grades awarded by the individual examiners.

The documents relating to History 4B (para (b) above) comprised 2 pages of notes and comments on an essay submitted by Mr James. The comments are of the kind released to him in respect of a paper submitted in History 4C and of a kind released in relation to the History 4A thesis. As no evidence was directed to this document, I am assuming that the only exemption claimed is in respect of that part of the document that discloses a tentative grade.

Each of the applicants gave evidence as to his or her reasons for pressing the request for access. Typical were the reasons given by Mr James in para 3 of his affidavit sworn on 5 September 1984 (Exhibit D) where he said:-

"I seek access to these documents for the following

reasons:

a) to have a full picture of my academic

performance based on the evaluation of a number

of examiners;

b) to encourage confidence that the comments made

by examiners to students are the same as those

examiners pass amongst themselves;

c) to prevent allegations of possible bias or

impropriety; and

d) to maximise the information that a student has

in making course and career choices."

Mr Brown added that unless one knew who one's examiners had been in respect

of the Honours 4A thesis it was difficult to know who was the most appropriate member of academic staff to approach for a reference particularly in relation to one's research abilities. The thesis, he said, was the one substantial piece of research work completed by an undergraduate student.

Mr Jones' evidence was that because the three components of the Honours course are so different - one being very theoretical, one being a very practical business of writing a piece of history, and the third being, in his case, devoted to ideas of liberty in 17th Century England - he would like some feedback on whether his strength lay in oral or written presentation.

Miss Gleeson added that in her case she was planning to publish her thesis this year. She understood that her two examiners reports were considered to be conflicting. She wished to work on the weak points of her thesis before publication. (This aspect of her request appears to be met by the University's agreement to release examiners reports subject to the deletions earlier referred to.)

With respect to the Record Sheets relating to the first three years of her studies at the University, she said that it was often the students' understanding that what is written on Record Sheets is not what is conveyed to students on their essays and in conversation with lecturers. She said that she would like to see exactly what lecturers thought of her. She would like to see lecturers become accountable for the sorts of things that they write on Record Sheets.

Each of the applicants also gave evidence of respects in which they had, through informal channels, obtained some of the information they were each seeking officially under the Act. They also gave evidence, the substance of which was unchallenged and which I therefore accept, of a meeting with Dr B.E. Kent, the Acting Head of the History Department in the Faculty of Arts at the University in January, 1984, in relation to their requests under the Act. Mr James said, in para 5 of his affidavit, (referring to Dr Kent):-

"5. At this meeting -

a) he showed me a document proposing the release

of more information to students;

b) offered to release to me my fourth year

component grades on the condition that I withdraw

my Freedom of Information request,

c) he made the following comments about

'supervisor's certificate and notes for examiners'

i) this report was to be abolished because it

served no useful function in the examination

process, and

ii) that in my case he would ask the author's

permission to release those relevant to me.

d) He read aloud to the whole group of students at

the meeting the contents of a supervisor's report,

without indicating whether he had sought the

consent of the examiner who had prepared the

report."

The applicants said that they refused this offer and shortly thereafter received notification of refusal of their requests for access.

Before proceeding further it is, I think, appropriate to emphasise that the only question that arises directly for my decision in these proceedings is whether students who have graduated from the University are entitled to access to information in documentary form which they were denied during their undergraduate years. I am not presently concerned with the question as to whether undergraduate students have the right to access to such documents prior to graduation. I am not, of course, unaware that my decision on these applications may well have some bearing upon the rights of undergraduate students to obtain access to information under the Act. However, nothing that I say in these Reasons for Decision should be misconstrued as an attempt on my part to decide questions best left to be determined when they properly arise.

To obtain a pass degree within the Faculty of Arts at the Australian National University a student has to undertake 10 units at pass level comprising 2 majors, consisting of two 3 units series, a 2 unit series and 2 single units. In normal circumstances a pass degree extends over 3 years. Within the History Department of the Faculty of Arts, students who show particular aptitude in their first year units are invited to join the Honours school, which means that during the remaining 2 years of their course they do both pass work and a separate Honours component. If their pass degree is of sufficient standard they are eligible then to enter a 4th year of studies (the Honours year) in order to qualify for an Honours degree.

In relation to the pass degree students are awarded a grade within the range of High Distinction, Distinction, Credit, Pass and Fail. Numerically, these grades are understood as - High Distinction, 85 and above; Distinction, 74-84; Credit, 65-74; Pass 50-64.

Dr Kent, who was called to give evidence on behalf of the respondent told me that in respect of each unit of study a Record Sheet is maintained in a form provided by the University. The face page, which the student is required to complete, contains his personal details. The reverse side of the page is divided into three columns headed respectively "Essays", "Tutorials" and "Examinations" with space for appropriate comments by the lecturers concerned. Although not expressly stated, the claim of exemption clearly relates only to the part of each Sheet containing lecturer's comments.

In respect of the essay component, Dr Kent said that the essay was available to be returned to the student if desired. The normal practice is for the examiner to make a very full notation on the essay of his comments. There would also be an indication of a grade or a mark. The comments on the paper would usually be discussed in an interview with the student when the essay was returned (see Dr Kent's evidence, transcript 70; cf. Mr Baker, transcript 111). Whether the essay bears a grade or a numerical mark appears to depend upon the individual discretion of the lecturer (cf. Dr Kent, Tr. 48 and Mr Baker, Tr. 116). It is the practice however, that both a grade and a numerical mark are entered on the Record Sheet together with a precis of the comments made on the essay. These comments, although they would normally mirror what had been written on the essay, would not necessarily do so. For educational reasons, comments written on the essay of a weak student may be less frank than those recorded on the Record Sheet.

With respect to the assessment of tutorial performance, Dr Kent said that at the end of the year the tutor would record his comments on the student's performance in relation to oral discussion or the presentation of a short written paper. The tutor would add a mark assessing the student's performance. Dr Kent said that there was no reason why the tutor could not inform a student of his mark. But the practice up to date has been not to divulge any other comments made on the Record Sheet about tutorial performance.

With respect to examinations, Dr Kent said that the practice varies from unit to unit. The majority of staff members have a written examination as part of their assessment, but some prefer to set a number of essays with a final essay at the end of the year. With respect to the final assessment, be it an examination or a final essay, the practice of the History Department is that there would always be 2 examiners, both of whom would be expected to comment on the student's performance. Where the final assessment was by written examination it was not the practice to return the paper to the students (Tr. 47).

Dr Kent agreed that it was a matter for each lecturer what he disclosed to a student concerning the comments that he had made on the student's performance. He said that so far as he was concerned he would have no inhibition in showing students what was on the Record Sheet as long all the grades on it were grades that he had awarded. However, he did not agree that one lecturer should show a student another lecturer's comments. He pointed out that almost invariably a Record Sheet would contain the comments of more than one examiner. He acknowledged that by approaching each of his lecturers in the Department, a student could gain a very full picture of what information was on the Record Sheet.

Dr Kent said that in the final assessment of the overall grade to be awarded to the student there is a process of moderation involved, many members of the teaching staff seek to avoid a straight arithmetical averaging of the individual components of the course. The tendency of staff, he said, was in general to try and give credit for improvement during the year by weighting the later results more heavily. In his experience, however, the process of moderation had never resulted in a student receiving a lower grade than would be appropriate by a straight arithmetical averaging. The purpose of moderation, he said, was to try to lift the student's performance (Tr. 48, cf. 72). The present system allowed some flexibility which could have worked to the advantage of students.

Mr D.W.A. Baker, a Reader in History within the Faculty of Arts at the University, who was also called to give evidence on behalf of the respondent, supported the non-disclosure of Record Sheets. He said that the remarks he might record on a student's essay and the Record Sheet would be similar but not necessarily the same. He said that, for example, it may not be much assistance to a first year student to tell him that he is practically illiterate. It is, however, helpful to tell the student that he needs some special help of a remedial nature with his English. This, he said, he would constantly do. In recording the comment "practically illiterate" on the record sheet he would do so in the knowledge that the comment was kept confidential.

Mr Baker expressed the concern that, if Record Sheets were made available to students, the information recorded would be very much less full, less candid. In his opinion, members of the academic staff would be under pressure if the comments were available to students. There could well be a possibility that some members of staff might be tempted to court popularity with students. He thought it was unfortunate if a teacher should get the reputation of being either an excessively harsh examiner or an excessively lenient one. Whilst he would like to think that his colleagues would all be above courting favour with students, he acknowledged that academics were, after all, human and some of them might succumb to that temptation.

Mr Baker expressed the opinion that the reputation of an academic depends in large measure on his independence - including independence of students and independence of authority in general (Tr.115). Mr Baker said, that if he were working on the understanding that after a student had graduated, he or she would be in a position to seek comments he had made during the years of the course, he would be inhibited in making those comments and would not make them as freely as he otherwise would. He felt that the comments that he recorded on a record sheet were made indirectly for the benefit of the student and enabled him to make a correct judgement at the end of the year on the whole of the student's performance.

On the other hand, Dr J.A. Merritt, a Lecturer in the History Department since 1975, who was called to give evidence on behalf of the applicants was an advocate of greater openness in the student/lecturer relationship. He said that he tries to record on the Record Sheet an accurate precis of the comments that he put on the student's essay. He tried particularly to avoid making any comment about the intellectual capacity of a student in general terms. He tried rather to focus solely on the arguments presented in the essay - their strengths and weaknesses.

Dr Merritt saw dangers in the practice of retaining Record Sheets containing comments made on essays and comments about the intellectual capacity of students. He was particularly critical of the practice of some academics in consulting at the beginning of a new academic year the Record Sheets maintained in respect of their students during the previous academic year. He felt that this could operate to the disadvantage of a student and cause a lecturer to prejudge the capacities of his students. For this reason, Dr Merritt said, that he would like to see the History Department abandon its Record Sheets. The alternative, he said, was to make them available to students so the staff would be accountable for what they say over and above comments written on essays.

Dr Pauline Moore, a Senior Tutor in History at the University in 1983, who was also called to give evidence on behalf of the applicants, supported Dr Merritt's views. She considered that greater openness could only be beneficial to staff and students. Dr Moore felt that to some degree the students inherited a tradition that there was a great mystique about Record Sheets. Being sceptical, students may feel that this is more to their disadvantage than to their advantage. In her own experience within the History Department, however, what is written on Record Sheets tends to be to the advantage of students. In the rare cases where perhaps this is not the case, it was her view that it would be to the advantage both of the students and of the staff to be obliged to be much more open about what they say. She suggested that academics could be less dramatic in the statements they make so that there is no prejudice to the student. In her view all Record Sheets should be open to students as well as staff.

Dr Moore did not agree that a more open disclosure policy would inhibit the candour and frankness with which academics express opinions about student performance. In her view, the more disclosure there is, the greater the chance there is of honesty because people are much more accountable.

Finally, there were Affidavits in evidence from two academics involved in teaching History units within the Department of History, neither of whom was called to give evidence. Mr C.M. Mayrhofer, a Senior Lecturer in the Classics Department in the Faculty of Arts who also taught Ancient History as a unit available within the History Department, supported the principle of greater openness in communications between examiners and students. He did not consider that communicating expressions of opinions to students would inhibit the frankness with which an examiner might be prepared to express his opinion. Mr J.H. Tillotson, a Senior Lecturer in the Department of History, said in his Affidavit that he supported the University's arguments for withholding Record Sheets, although it was his belief that the grades or marks recorded thereon should in all cases be available to the student.

Thus, as might be expected in an academic institution of the stature of the Australian National University, there is considerable divergence of academic opinion within the History Department, as to the respective merits and demerits of greater openness with respect to comments recorded on Student Record Sheets.

There are 3 segments to the Honours year course known as History 4A, 4B and 4C. Unit 4A consists of a 15,000 word thesis. Unit 4B, taken by all students doing pure History Honours, is a year long unit consisting of course work. Unit 4C also consists of course work but it is confined to the second semester. There are a number of 4C options, as they are called, which are specialist units offered by individual members of staff in their particular areas of expertise, from which the student may choose.

The nomenclature adopted for grading Honours units is different from that adopted in the pass units. The grades awarded range from First Class Honours 1, First Class Honours, Second Class Honours Division A, Second Class Honours Division B, Third Class Honours to Pass. Within the Faculty of Arts it is not the practice to attach a numerical mark to such work.

Dr Kent said that the History 4A thesis is a larger written project than anything the students have previously undertaken. As a consequence the students are allowed the first half of the year to write the thesis. Once it is completed it is submitted for examination under cover of the supervisor's certificate and notes for examiners. This is one of the documents to which these applicants seek access. The supervisor is the member of academic staff, who is an expert in the field covered by the thesis, appointed by the History Department to supervise the student's work. In the case of Mr James, the certificate was described as a "one page document signed by Dr. John Merritt and dated 14 June 1983, certifying completion of a final Honours thesis and providing spaces in which the author is able to provide an assessment of the degree of difficulty of the topic, a notation of any exceptional, personal difficulties which may have beset the candidate during the preparation of the thesis, an assessment of the originality of the thesis, any matters which the supervisor thinks the examiners should consider and a list of people regarded by the supervisor as qualified to act as examiners of the thesis". (see Affidavit of Ms White - Ex.1)

Two examiners are then appointed, who write separate reports on the thesis and give it a tentative grade. Dr Kent said that, although the practice had varied from time to time, the usual practice was for a third examiner to be appointed who was in fact a lay reader, not an expert, but who has a moderating role. The lay reader is expected to read a number of the theses presented by Final Year Honours students in order to get a comparative overview of standards. Once the lay reader and the two expert examiners have submitted their reports, the Head of the Department normally calls together the three examiners and the supervisor of the thesis (see Ex. F). In cases of disagreement between the examiners, it is the function of this meeting to reach agreement on the final grade to be awarded to the student's thesis.

With respect to History 4A, Dr Kent said that it was not the practice in 1983 for students to be advised of the grade achieved in respect of their theses. If they applied for it, they could have the edited comments of the examiners, but without the examiners raw assessments or, unless the examiners otherwise agreed, the names of the examiners. Dr Kent said that it had been the practice of the History Department for many years that the grade applied to the 4A thesis should be confidential. In respect of History 4B and 4C, Dr Kent told me that there was no invariable practice but, in the majority of cases, where a student submitted an essay, it would be returned with written comments. In most cases the essay would include a raw assessment as to grade. However, some members of the History Department would not even give that information.

The moderation process that is adopted in cases of disagreement to achieve an agreed result on a History 4A thesis may also be involved in determining the final grade on each of the other Honours units (History 4B and 4C) if the examiners disagree (Tr.54). A further moderation process is then required in which an overview is taken of the results of the three component units in order to arrive at the ultimate grade awarded. A concern for the maintenance of the academic integrity of the moderation processes adopted by the History Department is at the heart of the University's refusal to grant access to the documents sought by these applicants.

Dr Kent described the Grade Compilation Sheet as an aide-memoire, drawn up by the Head of the Department to assist in the final assessment of the grade to be awarded to each student. Its format was explained by Ms White in her supplementary Affidavit (Ex.2) as follows:-

"Grade Compilation Sheet

This 2 page document . . . is divided into 4 columns

headed '4A (Thesis)', '4B (History & Theory)', '4C

(Special Subject)', and 'Final' respectively. The

first column is divided into 4 sub-columns headed

'First Examiner', 'Second Examiner', 'Lay Reader'

and 'Agreed Result'. Entered against each

student's name in each column and sub-column is a

grade awarded by the relevant examiner or

examiners. Each grade awarded is qualified by an

examiner's comment indicating the range where the

result awarded lies within the grade awarded."

The difference between the "grade" awarded and the "range" within that grade

is important. The practice in the History Department is that examiners of Honours year units attach to the various grades awarded (i.e. H1, 2A, 2B etc.) a further qualification, such as low, mid, or high. Dr Kent said that these qualifications were of crucial importance when the final meeting took place in order to assess the grade of Honours degree to be awarded in a particular case. In respect of History 4A, both the raw grade and the range within the grade awarded by each examiner are recorded on the Grade Compilation Sheet, together with the final moderated result in that unit. In respect of History 4B and 4C only the moderated assessment of grade and range in each unit is shown. The moderated Honours result, involving an overview of the three components is also recorded. This result is then passed on to the Faculty as the recommended award to the student. It should be noted that whilst the Grade Compilation Sheet does not record any of the deliberative discussions concerning the moderated result to be awarded in respect of each component unit or the overall result, it does disclose some material (such as the raw assessment of a grade and the range within that grade) that has not otherwise been made available to the student.

Dr Kent, who had become the Acting Head of the Department at the end of 1983, said that although the previous practice in the History Department had been (in most cases) to provide students with the raw assessment of their result in units 4B and 4C but not the moderated assessment, it was his personal view that no harm would flow if the final general (i.e. moderated) grade for each component of the Honours year was released to the student (such as, for example, a 2A for the 4A thesis, a 2B for unit 4B and a first for unit 4C). However, he did not consider it to be in the public interest that students should be informed whether within each of those grades the student was seen as having obtained a low, middle or high result. It was Dr Kent's very strong opinion that the disclosure of such information would inhibit the examination process and would, in fact, work to the disadvantage of the students overall. Dr Kent said that the process of moderation involved in assessing the final grade to be awarded to an Honours student was a very delicate one which could not be effected simply by compiling arithmetical grades. The system of assessment adopted by the History Department was intended to work to the advantage of the student. The efficient working of the assessment procedure adopted within the History Department could, in his opinion, be jeopardised if the full details of the raw initial assessments made by individual members of the staff were given to students. Members of staff might feel inhibited in making their assessments. Dr Kent considered that the equitable working of the assessment procedures depended very much on individual staff being free to make their own independent and candid assessments of students and then those independent and candid assessments being brought together and moderated (Tr.62). He was concerned that particular members of staff might not want to be seen to be either hard or soft markers. Dr Kent expressed the fear that in units where more than one examiner was involved there might be a human tendency for those examiners to collude before they write down their independent assessments of a particular piece of work, if they know that the Record Sheets are going to be open ultimately to scrutiny by the student concerned (Tr.63).

Dr Kent said that he was not concerned that the release of the requested information to graduates would increase the pressure upon the University to make similar information available to students still currently engaged in particular units. Having regard to the fact that any disputes over the assessment of the student's performance were likely to arise at the end of the year, Dr Kent thought that there were practical difficulties in the way of students getting access to information relating to such disputes.

Mr Baker's evidence on this point was to similar effect. He said that, in his opinion, the process of examining students is a very delicate and difficult one. It is a process that no teacher does with any ease at all. In his opinion, anything that makes the task more difficult is to be avoided, if at all possible. He shared Dr Kent's fears as to whether particular lecturers may become known as soft or hard markers.

By way of contrast, however, Dr Merritt said that it had always been his practice, when acting as an examiner in History 4A, to indicate to the Head of the Department that his report could be shown to the student concerned. He had never asked that his name be withheld, although he understood that it always was. In the statement annexed to his Affidavit sworn on 24 August 1984 Dr Merritt concluded:-

"If we are worried that our judgements might not

stand up to the scrutiny of our students then we

have no right to be examining them in the first

place. The degree of accountability implied in

making signed reports available is the least that

should be expected of people who make decisions

which affect the future of others."

Dr Merritt said that he would be surprised if the moderation process would

be prejudiced by disclosing the fact that there were differences of opinion between particular examiners as to the merits of a student's thesis. Final year Honours students would long since have realised that historians do disagree and that there are significant differences in interpretation of historical events amongst members of the History Department. Students know how the examination procedures for theses operate. They would expect differences of opinion to be resolved. In Dr Merritt's opinion the procedures adopted were fair and equitable.

With respect to the fears expressed by Dr Kent and Mr Baker about the impact upon particular academics of more open disclosure of differences of opinion, Dr Merritt said that he could not say with authority that it would not happen. However, he added, "it seems most unlikely that any of my colleagues would behave that way. On most occasions, when I have disagreed with them, they have given me a very strong run for my money" (Tr.170).

With respect to the supervisor's certificates of completion in relation to the History 4A thesis, Dr Merritt said that it has always been his practice to consult with the student that he is supervising before completing the form. He said that the student should have the chance to discuss any personal problems that may have affected the preparation of the thesis and to raise any objection to the two potential examiners. He acknowledged, however, that whilst the student would be fully aware which examiners had been recommended, it did not necessarily follow that the recommended examiners would be appointed to the task.

Dr Moore said that she would have no objection to disclosing all of the information requested by the applicants, once the results were out. In fact, she said, so far as she was concerned, students could know that she had marked a particular thesis; they could know what she had said and what the mark was by the time she had finished marking it (between September and November in any given year) - Tr.183.

Mr Tillotson, in his affidavit said that, with respect to supervisor's certificates, he would not be concerned about their disclosure. So far as examiners reports were concerned, he believed that references to other students should be withheld, but that the examiners' names and grades awarded to the thesis be available to the student. He added "The Dissertation does not seem to me materially different to other essays in other undergraduate courses and similar principles of full information and accountability should apply".

Evidence was also given on behalf of the University by Mr Colin G. Plowman, the Assistant Vice-Chancellor of the University. Whereas Dr Kent and Mr Baker, in their evidence, were concerned with the potential impact of the Freedom of Information Act upon the assessment procedures adopted within the History Department, Mr Plowman's evidence was concerned more with the potential impact of the Act upon the University as a whole.

Mr Plowman said that Universities were concerned with the preservation of scholarship; the dissemination of scholarship; and public service. Scholarship, he said, needs to be of absolutely the highest standard. A University is judged by the standard of its graduates, particularly those who graduate with first class Honours degrees in a particular discipline. Thus, the grading and assessment of student achievement at a University is a matter of the utmost importance. Whilst the University has Statutes with respect to the procedures for the conduct of examinations, the University did not prescribe the means by which student performance was to be assessed. Traditionally those matters were left to the particular Departments within the University to handle as they see would best fit the interests of the students they teach. Academics, he said, were particularly protective or jealous of their rights in this regard because they are the ones who bear the brunt of maintaining the real value of the University. Departments within the University that have established their academic value are jealous of their reputation and would not wish to be tied too closely by the University as to the means of assessment of students.

Mr Plowman expressed the concern that if a common standard was imposed upon all Departments of the University with respect to assessment procedures the proper functioning of the University as an academic institution would be endangered. An insistence, for example, upon strictly arithmetical grading and the ranking of candidates in particular units would, he said, take away some flexibility from academics in coming to more serious considerations with respect to the assessment of students. Marking to an arithmetical scale might suggest to the public at large that these marks mean something, when in fact they mean very little. Marks, in fact, carry a spurious authenticity.

Mr Plowman acknowledged that there were clearly 2 public interests to be served. The one is the interest of the individual in knowing what an institution or an agency is doing with respect to that person. He agreed with Dr Kent that the University should not be unmindful that students have a real and properly supportable interest in knowing that they are being dealt with fairly, seriously and honestly and without caprice. The University ought to go as far as it can, he said, in order to achieve that purpose. On the other hand the University's concern in the matter is that the University must strive at all times to ensure that its standards are of the highest level and that the judgments that it expresses in respect to students are judgments which, in the broad, are acceptable to the outside public. If they are not, the credibility of the University ceases to exist.

Asked whether he saw any difference between granting access to information relating to the assessment of units whilst the student was still enrolled at the University as opposed to granting such access to a student who had completed his course, Mr Plowman acknowledged some difficulty with the question because he did not have enough personal knowledge of the sort of pressures that might be placed upon a teacher in that event. He offered the view, however, that there is a difference between the situation where there was only one examiner involved - in which case he could see no difficulty in the judgments of that examiner being made available, particularly if they were made available after the completion of the course. In respect of judgments made in relation to units where more than one examiner was involved, however, Mr Plowman expressed greater concern. He pointed out that the judgments involved are of a significantly inexact and subjective framework. In such circumstances more than one examiner was needed, not just to ensure the probity of the examining process, but because there is a significant degree of inexactitude in what is being assessed. Thus examiners may by their comments wish to draw out their co-examiners into discussion to see whether or not their assessment of the work could be right or to be persuaded they could be wrong. In his opinion it was that very delicate, sensitive and subtle element of University examining that would be likely to suffer if a very formal, straight up and down marking arrangement was introduced. He added, however, that he had enough faith in his academic colleagues to believe that they would still find a way to talk to each other with respect to the relative merits, particularly of Honours students and, indeed, in respect of assessments made at the present time. He felt sure that there was a lot of discussion between examiners that was never recorded and was therefore not available.

For the assistance of the Tribunal, Mr Plowman produced a document tabulating the results of a survey conducted under his instructions as to the current practices within the various Faculties of the University and the various Departments within those Faculties, relating to Honours year assessment of student work and as to the accessability of documentation relating to that assessment (see Ex.5). It is unnecessary to refer to that Exhibit in great detail except to say that, as one might expect of an academic institution such as the Australian National University, there are a diversity of procedures followed, reflecting no doubt, the degree of academic freedom enjoyed by teachers at the University to determine the form of assessment appropriate to their particular discipline and the extent of student feedback appropriate in the circumstances.

To take just a few examples, however, within the Faculty of Arts itself, the Departments of Geography, Human Sciences, Linguistics and Medieval Studies evidently have no restrictions upon making available to students the marks, grades and comments on the component parts of their fourth year studies. In the Department of Germanic Languages the records are not offered to students but are available, apparently, on request. In the Classics Department the mark and an edited version of the thesis assessment is available. In the Department of Philosophy informal comment is available but no marks or grades - a position that also appears to obtain in the Department of Sociology. Within the Faculty of Arts the practice adopted by the History Department in 1983 with respect to the availability of marks, grades and comments on the component parts of the fourth year examinations is at variance with some Departments but entirely consistent with others.

Of the other faculties the procedures adopted within the Faculty of Law in relation to Law Honours are, perhaps, of special relevance. Part A of the Honours assessment which counts for 60% of the final grade, is the weighted average of marks for the pass degree (the three lowest marks being discarded). Part B, the research paper, counts 40% of the final grade. The information provided by the Faculty of Law in relation to the assessment of this research paper was as follows:-

"The research paper is examined by 2 examiners.

Each prepares lengthy comments and suggests an

appropriate grade or mark. All research papers

are then read by an Honours Paper Committee, which

moderates. If this Committee wishes to vary a

mark or grade suggested by an examiner, the

examiner is consulted. The research paper is

awarded a mark. All documentation at each stage

of the assessment of the research paper is

available to the student, after the final result is

reached. The final Honours mark is converted to

an Honours grading and approved by the Faculty."

I was informed, however, that upon subsequent reflection the Dean of the Faculty had advised that it has not always been the invariable practice to advise students of the recommended mark (Tr.255).

Mr Plowman acknowledged that the views recorded in Exhibit 5 collated what the various Deans and Heads of Departments felt was their Faculty or Departmental view of the assessment procedures. He agreed that in particular Departments and Faculties there may well be different views held by individual academics as to what disclosure was appropriate.

That differing views exist in practice is apparent from the evidence of Dr Merritt and Dr Moore and from the evidence of the other witnesses called on behalf of the applicants. Mr W.M. Redpath, an Honours graduate in Sociology from the Faculty of Arts at the Australian National University produced copies of examiners reports in respect of his Honours thesis which on the face of them were unedited and which included the raw assessment of a grade. Both reports were signed by the respective examiners whose names were clearly identified. Mr Redpath also produced a document commenting on the final essay submitted in Sociology D1 which included the grading of the essay "at the high end of the distinction range". The name of the examiner was disclosed. Also tendered were comments from the main teacher in Sociology D1 and from the two examiners in the reading course. These comments included the raw marks for each of the components of the Honours course and a tentative grade.

There was also evidence introduced on behalf of the applicants by Mr Peter Taylor, the President of the Students Association of the Australian National University, as to the results of a survey conducted by the Association of the procedures that other Universities and Colleges of Advanced Education follow in releasing information to undergraduates (see Ex.0).

Unfortunately the collation of the results of this survey was somewhat flawed by the fact that the responses presented to the Tribunal were those which were most favourable to the applicants' case and excluded responses that were unfavourable. In the circumstances I do not see any great advantage in attempting an analysis of the admittedly biased selection of responses included within Exhibit O. However, as with the evidence available as to practices within the various Departments and Faculties of the Australian National University, the responses received to the Student Association request for information were, I gather, equally diverse.

The grounds of exemption principally relied upon by the University in respect of the documents to which access is sought in these proceedings were ss.36 and 40, both of which involve consideration of the public interest. There was, as an alternative to the s.36 claim of exemption, a claim of exemption under s.45. In the circumstances I propose to deal first with the claims of exemption under s.36; secondly with the claims under s.40; and, finally, with the public interest issues. S.36 provides, so far as relevant, as follows:-

"36.(1) Subject to this section, a document is an

exempt document if it is a document the disclosure

of which under this Act -

(a) would disclose matter in the nature of, or

relating to, opinion, advice or

recommendation obtained, prepared or

recorded, or consultation or deliberation

that has taken place, in the course of, or

for the purposes of, the deliberative

processes involved in the functions of an

agency or Minister or of the Government of

the Commonwealth; and

(b) would be contrary to the public interest.

. . .

(5) This section does not apply to a document by

reason only of purely factual material contained in

the document.

(6) This section does not apply to -

(a) reports (including reports concerning the

results of studies, surveys or tests) of

scientific or technical experts, whether

employed within an agency or not, including

reports expressing the opinions of such

experts on scientific or technical matters;"

Does Section 36 Apply?

The general thrust of the submissions advanced by Mr Bayne, on behalf of the

applicants, in relation to s.36 was that the section did not apply to any of the documents in question because they were not documents of a kind referred to in s.36(1)(a). Alternatively, if they were such documents, Mr Bayne submitted that they were excluded from s.36 because they contained "purely factual material" (s.36(5)) or, because they were reports of "scientific or technical experts" within the meaning of s.36(6)(a). If the Tribunal was against him on these submissions, Mr Bayne contended that it was not, in any event, contrary to the public interest that the documents should be disclosed. These submissions were all disputed by Mr Topfer on behalf of the University.

In Re Waterford and Department of the Treasury (No. 2) (1984) ADMN 92-002 in a Tribunal over which I presided, I expressed my view that for the purposes of s.36(1)(a) of the Act the "deliberative processes" involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action. I went on to point out that only to the extent that a document may disclose matter in the nature of or relating to deliberative processes does s.36(1)(a) come into play (see paras 58-61). Mr Topfer supported that construction. Mr Bayne, however, submitted that Waterford (No. 2) was inconsistent with the decision of Beaumont J. in Harris v Australian Broadcasting Corporation [1983] FCA 242; (1983) 50 ALR 551 and with the decision with the Full Court of the Federal Court in Harris v Australian Broadcasting Corporation (No. 3) [1984] FCA 8; (1984), 51 ALR 581. In his submission, these decisions of the Federal Court are authority for the proposition that only documents relating to the policy forming processes of an agency are within s.36(1)(a). None of the documents in question meet that description. However, both those Federal Court decisions were considered in Waterford (No. 2) and were considered by the Tribunal not to require such a construction to be placed on the words "deliberative processes". I see no reason to depart from the views that I then expressed (cf. in this regard the decision of Sheppard J. in Kavvadias v The Commonwealth of Australia [1984] FCA 179; (1984), 54 ALR 285 particularly at pp.299-300; see also the decision of the Tribunal presided over by the President in Re Murtagh and Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313 at pp.320-323). I propose to proceed accordingly.

Mr Bayne further submitted that the documents in question (excluding, presumably the supervisor's certificate) were appropriately categorised as aides-memoire. They were, he submitted, reminders to the individual lecturers or to the Head of Department, as the case may be, as to the performance of the student in the various components of the course. The documents did not record opinion, advice or recommendation flowing from one academic to another. They were simply notes for the assistance of the person who made them.

In my view, however, there is nothing in the language of s.36(1)(a) to require that a document must be a communication from one person to another before it can be found to fall within that paragraph. The protection that s.36 potentially affords to documents relating to the deliberative processes involved in the functions of an agency should not, in my view, be constrained by any attempt to construe the words of the section otherwise than according to their natural and ordinary meaning. With respect to deliberative process documents, Parliament itself has cast the net very wide. It is sufficient to bring a document within s.36(1)(a) if the disclosure of the document would disclose matter in the nature of or relating to opinion, advice or recommendations obtained, prepared or recorded or consultation or deliberation that has taken place, in the course of or for the purposes of the deliberative processes involved in the functions of the agency. The care that has been taken to describe in the most ample terms the deliberative process documents that are to be comprehended as falling within s.36(1)(a) militates against any narrow or pedantic construction of the ambit of that paragraph.

In the present case I am satisfied that all the documents (or parts of documents) for which exemption is claimed, are documents the disclosure of which would disclose matter in the nature of or relating to opinion, advice or recommendation recorded for the purposes of the deliberative processes involved in the functions of the Australian National University, namely the academic assessment of the performance of its students.

Mr Bayne's next submission was that, if the documents were found to be documents to which s.36(1)(a) applied, they nevertheless were excluded from the section to the extent that they contained "purely factual material" (see s.36(5)). As the Full Court of the Federal Court said in Harris (No.3) at p.585:-

"Under the Commonwealth Act material has to be

opinion, advice or recommendation for the purposes

of the deliberative processes before it may qualify

for exemption under s.36(1). It may then be

excluded under s.36(5) if it is purely factual

material and, if severed, would not be misleading

(s.22)."

In the course of its decision, the Full Court referred to the distinction, which has emerged in the American cases relating to Exemption 5 in the Freedom of Information Act 1966 (U.S.), between purely factual investigative matters as opposed to materials reflecting deliberative or policy-making processes. The American courts have recognised that "in some cases selection of faces or summaries may reflect a deliberative process which Exemption 5 is intended to shelter" (see Montrose Chemical Corporation of California v. Train, [1974] USCADC 40; 491 F(2d) 63 (D.C. Cir. 1974) at 68). Adopting a similar approach in analysing the documents before it, the Full Court concluded that the Interim Reports prepared by Miss Mahla Pearlman at the request of the Australian Broadcasting Corporation concerning the functions and operations of the Corporation's Legal Department contained, in some respects, statements of facts and, in other respects, a summary of conclusions involving opinions, advice and recommendations for consideration by the Corporation in its deliberations concerning its Legal Department. At 586 the Full Court said:-

"In our view some summaries may be classed as

purely factual material; others, which are of such

a character as to disclose a process of selection

involving opinion, advice or recommendation for the

purpose of the deliberative process, may be exempt

under s.36.

Equally, some conclusions may be classed as purely

factual material. We hesitate to import notions

from the law of evidence into this field.

However, it may be useful to refer to the

distinction, with which lawyers are familiar,

between primary facts and ultimate facts. In our

view a statement of ultimate fact may be a

statement of purely factual material,

notwithstanding it involves a conclusion based on

primary facts. Many common statements of fact

may, if analysed, be found to be based on primary

facts. For example, the statements X has a cold

or Y resides in Sydney are both statements based on

primary facts, which are unstated. On the other

hand, a conclusion which involves opinion, advice

or recommendation for the purposes of the

deliberative process may well prevent material from

being purely factual and render it exempt."

Applying these tests to the documents in question the face page of each of

the Record Sheets records purely factual material supplied by the student giving personal details and past academic performance. The face page of each of those documents is therefore not an exempt document for the purposes of s.36 of the Act. However, the purpose of each of the requests under the Act was obviously to gain access to the comments made on the reverse side of each record sheet. In my view, the information so recorded is appropriately characterised as a summary of conclusions involving opinions as to the performance of the student in the particular aspect of the unit. The information could not be described as "purely factual material" in the sense in which those words have been construed by the Federal Court. The same applies, in my view, to the examiners' reports on the various theses.

However, with respect to the supervisor's certificate, there are some parts of that certificate that, in my view, are severable and which do record purely factual material. Thus, paragraph 1 of the certificate merely certifies as to the completion of the thesis. Paragraph 3 records in a factual way any personal difficulties that may have beset the candidate during the preparation of the thesis. However, the remaining paragraphs 2, 4, 5 and 6 contain, in my view, opinion, advice or recommendations recorded for the purposes of the processes of deliberation involved in assessing the student performance in respect of the thesis. To that extent therefore, the supervisor's certificate is a document to which s.36(1)(a) applies.

Mr Bayne further submitted that the reports of the examiners on the performance of the applicants as students in their various units were properly characterised as reports of "scientific or technical experts" which were excluded from s.36 by sub-s. 6 of that section. In his submission the reference to scientific or technical experts should be construed broadly as encompassing not only science in its narrowest sense but also the social sciences which involve the analysis and interpretation of data in a scientific fashion. Such a process of analysis and interpretation, he submitted, can properly be described as an exercise of technical or scientific expertise. In Mr Bayne's submission, an academic in assessing the performance of a student in history, was making an objective judgment which has qualitative elements to it. Accordingly, a report prepared by an academic in respect of an essay or thesis submitted by a student, was appropriately described as a report of a scientific or technical expert.

A not dissimilar submission was considered and rejected by Beaumont J. in Harris where at 563-4 his Honour said:

"Finally, in my view, the reports do not fall

within the exception contained in s.36(6)(a), since

they cannot properly be treated as reports of a

'scientific or technical' expert of the type there

described. Whilst Miss Pearlman is an expert in

the field of legal professional practice, the

reference, in s.36(6)(a) to 'technical experts' is,

I think, intended to describe experts in the

mechanical arts and applied sciences generally.

This is one of the dictionary meanings of

'technical' and such a meaning is suggested by the

mention of scientific experts in the same

connection. No doubt, Miss Pearlman may be

confronted with technical legal questions from time

to time in the course of her review, but it does

not necessarily follow that she is acting as a

'scientific or technical expert' within the meaning

of s.36(6)(a) (cf Battersea Borough Council v

British Iron and Steel Research Association (1949)

1 KB 434 at 454)."

There are, it must be conceded, some difficulties in applying s.36(6)(a) to

an agency such as the University. One can imagine within the Faculty of Science, perhaps, a project submitted by a student which would require an evaluation and report by a scientific or technical expert within the narrowest meaning of those expressions. In the present case, however, I agree with Mr Topfer that, as a matter of ordinary English, the reports recorded by the various examiners in the History Department of the Faculty of Arts could not fairly be described as "reports of scientific or technical experts" and I find therefore that those reports are not excluded from the ambit of s.36 by sub-paragraph 6(a). Except to the extent that I have indicated, all the documents to which access is sought are, in my view, documents to which s.36(1)(a) applies.

Before turning to a consideration of the public interest questions that arise under s.36(1)(b), it will be convenient if I first refer to the alternative grounds of exemption relied on by the University pursuant to s. 40 of the Act. Mr Topfer said that the University claimed exemption under s.40(1)(a), (b) and (d). Section 40 provides as follows:-

"40.(1) Subject to sub-section (2), a document

is an exempt document if its disclosure under this

Act would, or could reasonably be expected to -

(a) prejudice the effectiveness of procedures

or methods for the conduct of tests,

examinations or audits by an agency;

(b) prejudice the attainment of the objects of

particular tests, examinations or audits

conducted or to be conducted by an agency;

(c) have a substantial adverse effect on the

management or assessment of personnel by

the Commonwealth or by an agency;

(d) have a substantial adverse effect on the

proper and efficient conduct of the

operations of an agency; or

(e) have a substantial adverse effect on the

conduct by or on behalf of the Commonwealth

or an agency of industrial relations.

(2) This section does not apply to a document

in respect of matter in the document the disclosure

of which under this Act would, on balance, be in

the public interest."

Section 40(1)(a), (b) and (d)

In a submission which did not differentiate between the exemptions claimed

under s.40(1)(a), (b) and (d) Mr Topfer submitted that the assessment of student performance in a unit of study is a primary function of the University. The History Department has determined upon the assessment procedures that it considers desirable. They are appropriate and permissible procedures within the framework of the relevant Statutes of the University. To disclose the information requested by the applicants in these matters would, he submitted, prejudice the effectiveness of the procedures or methods for the conduct of examination. Mr Topfer conceded that this was a matter of degree and, to some extent, a matter of opinion. However, the evidence established that in the eyes of the Acting Head of the History Department, the proper and efficient conduct of that Department depended upon the material to which access was sought remaining confidential.

Mr Topfer acknowledged that at the heart of the problem was a fundamental question of academic freedom. What the University was seeking to protect was the right of each Faculty and Department within the University to determine the methods and procedures to be used in assessing the performance of students and the degree of communication appropriate to be made to students. He acknowledged the apparent difficulty faced by the University, as the respondent agency in these proceedings, in seeking to defend the right of the History Department to withhold from its students information of a kind that other Departments within that Faculty or within other Faculties at the University may freely make available. In his submission, however, it was a mistake to assume that methods of assessments adopted in one Faculty or Department within that Faculty would necessarily be appropriate in other Faculties or Departments. The University, in its corporate sense, accepts that its various Faculties and Departments have proper and appropriate methods and procedures to assess results and to make proper communication with students. In his submission it was not fatal to a claim under s. 40 that the University should say, in relation to a particular group of tests and assessments, that full disclosure would prejudice the effectiveness of the procedures adopted. He acknowledged, however, that there was a difficulty whether this degree of academic freedom is compatible with the principles embodied in the Freedom of Information Act.

For the applicants, Mr Bayne submitted that in the circumstances of these cases, the only way in which the University could show any relevant prejudice for the purposes of s.40 was if it succeeded in establishing its claim that it would be contrary to the public interest within the meaning of s.36(1)(b) for the requested disclosures to be made (Tr. 257).

However, in so far as the University relied upon s. 40(1)(d) Mr Bayne submitted that a consideration of the legislative history of that provision (see s. 40(b) of the Freedom of Information Act 1982 as originally enacted) indicated very clearly that s. 40(1)(d) was not intended to have a breadth of operation equivalent to s. 36. The paragraph was directed, in his submission, to documents concerned with the internal auditing of the efficiency of operations of agencies, i.e. as working, efficient administrative organisations. So construed, in his submission, s. 40(1)(d) could have no application in the circumstances of the present case. In a written submission, lodged by leave of the Tribunal after conclusion of the hearing, Mr Bayne amplified this argument by submitting that the "operations of an agency" encompassed by s. 40(1)(d) are those which bear on how it functions as an administrative organisation and that the concern was to prevent the disclosure of documents which reflected the details of reports, such as those on efficiency and staff utilisation reviews. This was made clear, he said, in the speech of the Minister representing the Attorney-General in the House of Representatives in the debate on what became s. 40(b) of the original 1982 Act. When s. 40(b) was replaced by s. 40(1)(d) by virtue of the amending Act No. 81 of 1983 there was no indication in the covering Explanatory Memorandum that the ambit of s. 40 was to be extended to cover much of the ground already covered by s. 36. Such a change, he submitted, would have been clearly signalled in the Explanatory Memorandum. No such change was indicated.

I agree with Mr Bayne that, in its original form, s. 40(b) seems to have been directed at documents dealing with auditing the efficiency of the operations of an agency. What it protected was documents the disclosure of which would be contrary to the public interest by reason that:-

"(b) The document contains information the

disclosure of which would, or could reasonably be

expected to, have a substantial adverse effect on

the supervision or review of the operations of an

agency for the purpose of ensuring the proper and

efficient conduct of those operations;"

In the new s. 40(1)(d), however, the emphasis of the exemption has changed significantly. Its principal thrust is no longer at documents the disclosure of which would have a substantial adverse effect on the supervision or review of the operations of an agency for the purpose of ensuring the proper and efficient conduct of those operations; it is at documents the disclosure of which would have a substantial adverse effect on the proper and efficient conduct of those operations themselves. The scope of s. 40(1)(d) is, on the face of it, potentially broader than its predecessor (s. 40(b)). Having read the Explanatory Memorandum to which Mr Bayne referred, I think that it confirms the conclusion that otherwise emerges from a consideration of the language of s. 40(b) and s. 40(1)(d) (see s. 15AB of the Acts Interpretation Act 1901), but throws no real light on what Parliament intended to be encompassed within the extended exemption. In other words, s. 40(1)(d) may well encompass documents to which s. 40(b) originally applied. But it is no longer limited to such documents.

The question, in the present case, therefore, is whether the expression "the conduct of the operations of an agency", when applied to the University, extends not only to the way in which it carries out its "administrative" operations, but also its "academic" operations. Given that sub-paragraphs (a) and (b) of s. 40(1) apply specifically to documents the disclosure of which would prejudice examinations conducted by an agency (in the respects referred to in those paragraphs), there is something to be said for the view that s. 40(1)(d) could not have been intended to apply to the same situation - particularly as s. 40(1)(d) requires the agency to establish a "substantial adverse effect" whilst ss. 40(1)(a) and (b) require proof of no more than "prejudice". In this regard, however, I am mindful of the fact that s. 32 of the Act provides that:-

"32. A provision of this Part by virtue of which

documents referred to in the provision are exempt

documents -

(a) shall not be construed as limited in its

scope or operation in any way by any other

provision of this Part by virtue of which

documents are exempt documents; and

(b) shall not be construed as not applying to a

particular document by reason that another

provision of this Part of a kind mentioned

in paragraph (a) also applies to that

document."

As a matter of ordinary English I think that the expression "the conduct of

the operations of an agency" is capable of extending to the way in which an agency discharges or performs any of its functions. So construed, I agree with Mr Toper that it is capable of extending to the discharge by the University of its academic functions in relation to the awarding and conferring of degrees and diplomas (see s. 6 of the Australian National University Act 1946).

However, as I have indicated, the onus imposed upon the University by force of s. 61 of the Act is greater under s. 40(1)(d) than it is under either s. 40(1)(a) or (b). In the present case, I am satisfied that the disclosures that the applicants are seeking could reasonably be expected to have some "prejudice" or adverse effect on the proper and efficient conduct on the operations of the University, to the extent that under a system of fuller disclosure some academics may feel more inhibited than they presently do in the discharge on behalf of the University of their functions of assessing student performance. However, I am not satisfied that any such effect would be "substantial", in the sense of "serious" or "significant" (see Re Heaney and Public Service Board (1984) ADMN 92-021). On the evidence before me, such adverse effects as may occur are likely to be variable in their impact. Some academics within the History Department would obviously welcome and support a more open assessment system and would see such a system as enhancing the proper and efficient conduct of the operations of the University. Others are genuinely concerned as to the impact of such a system. In my view, however, these differing reactions should have a leavening effect and tend to minimise any adverse impact that may result from openness. I find, therefore, that the claim of exemption under s. 40(1)(d) has not been sustained.

However, for the reasons I have just given, I am satisfied that disclosure of the requested documents could reasonably be expected to cause some prejudice to the effectiveness of the procedures adopted within the History Department for the conduct of tests or examinations on behalf of the University. In my view, the extent of that prejudice in the event of disclosure of Record Sheets, full Examiners' Reports and Grade Compilation Sheets would again be variable and thus difficult to quantify. In the eyes of some members of academic staff I do not believe that any prejudice would be perceived. Others would, on the evidence before me, regard more open disclosure as a threat to the academic integrity of the Department's assessment procedures. In respect of the Supervisor's certificate, any prejudice would, in my view, be minimal. With respect to s. 40(1)(b), in so far as a major objective of any examination procedure is to assess impartially and objectively the academic attainments of students, I also accept that there could reasonably be expected to be some prejudice to the attainment of those objectives. Again, however, the diversity of reaction to more open disclosure could be expected to have a leavening effect so far as any prejudice is concerned. Prima facie, however, the grounds of exemption relied upon under s. 40(1)(a) and s. 40(1)(b) have been made out subject to the public interest question arising under s. 40(2).

Although the emphasis of s. 36(1)(b) and s. 40(2) is somewhat different (the former requiring a decision whether, on balance, disclosure would be contrary to the public interest and the latter requiring a decision whether, on balance, disclosure would be in the public interest) it was ultimately common ground that in the context of the present case the facets of the public interest that needed to be weighed in the balance for and against disclosure were identical (cf. Re Scrivanich and the Public Service Board (1984) 6 ALD 98). Mr Topfer submitted that it would be contrary to the public interest to disclose the information sought by the present applicants because that disclosure would prejudice or limit the exchange of opinions between examiners and because the comments made by examiners would not be likely to be as full or frank in the future. As a consequence, the moderating process which was dependent on the frank exchange of views would be inhibited. He further submitted that to disclose the information sought would allow students to exert pressure on examiners to reconsider or review their position and that this was an undesirable factor in the assessment processes. There was a danger that examiners would be classified by reputation as hard or soft markers in a way that was not in the best interest of achieving proper academic results. There was also the possibility, he added, that full disclosure may inhibit the capacity of young academic staff members to develop their assessment techniques. A young academic may be classified as a hard or soft marker early in his career. That reputation might be very difficult to shift.

Mr Topfer acknowledged that the undesirable consequences of disclosure would be greater whilst the student was still at University. However, even in respect of students who had completed their courses prejudice may still flow because of the communication that may occur between students past and present.

On the other side of the balance, Mr Topfer submitted that the interest of individual students in obtaining information about themselves was a private or personal interest and not truly a public or community interest. He agreed that the public has an interest in the processes by which an agency such as the University makes its academic assessments. That public interest encompassed knowing whether in respect of a particular person that process was properly applied. However, the community as a whole, he submitted, has no interest in a person having access to personal information about himself. With respect to documents relating to the personal affairs of an individual, the individual concerned could, in his submission, have no higher interest in knowing about the contents of such documents than the community itself.

Mr Topfer acknowledged that this submission was at variance with the view that the Tribunal appeared to have acted upon in a number of cases (see for example Re Burns and the Australian National University (1984) ADMN. 92-009). In his submission, however, it was a misnomer to say that the community has an interest in knowing about the personal affairs of a particular individual.

In Burns my colleague Deputy President Todd concluded that, for the purposes of the Freedom of Information Act, the concept of public interest should be seen as embodying public concern for the rights of an individual. Referring to a decision of Morling J., sitting as the former Document Review Tribunal (Re Peters and Department of Prime Minister and Cabinet (5 ALD 187)) Deputy President Todd said:-

"But what is important is that his Honour clearly

considered that there was a public interest in a

citizen having such access in an appropriate case,

so that if the citizen's 'need to know' should in a

particular case be large, the public interest in

his being permitted to know would be commensurately

enlarged." (at p. 70,060)

Whilst I appreciate the difficulty posed by Mr Topfer's submissions, it is my view that the submissions fail to accord proper weight to the "right to know" established by the Act itself. The fact that Parliament has seen fit to confer upon every person a legally enforceable right to obtain access to a document of an agency or an official document of a Minister, except where those documents are exempt documents, is to my mind a recognition by Parliament that there is a public interest in the rights of individuals to have access to documents - not only documents that may relate more broadly to the affairs of government, but also to documents that relate quite narrowly to the affairs of the individual who made the request. Confirmation of this public interest is to be found in Part V of the Act which authorises a request to be made for amendment of information relating to the personal affairs of a claimant contained in a document of an agency to which access has been provided under the Act.

Thus, in any balancing of the different facets of the public interest involved in a case such as the present, there must always, in my view, be placed on one side of the scales the public interest in the right of the individual to know. Were it otherwise, a request for access to documents relating to personal affairs might always be overborne by a public interest, however slight, militating against disclosure.

In my view, the statutory "right to know" takes the place, in any balancing of competing public interest for the purposes of the Freedom of Information Act, that the general concern that the course of justice should not be impeded occupies in a claim of public interest immunity arising before a Court. However, as in public interest immunity claims, the weight to be attached to the public interest in favour of disclosure may well vary depending on the circumstances (see Sankey v Whitlam (1978) 142 CLR 1 at 56 per Stephen J.); and, in some circumstances, may be overwhelmed by the weight of public interests against disclosure recognised by or pursuant to this Act (cf. Duncan v Camell Laird [1942] UKHL 3; (1942) AC 624; Re Heaney, (1984) ADMN 92-021).

In the present case, the weight to be given to the statutory right to know relied upon by each of the applicants was supported by their evidence to which I earlier referred (see paragraphs 9-12). I accept that in each case the statutory right is sustained by a legitimate interest on the part of each of the applicants to know information presently withheld, for purposes that are relevant to their respective future careers. It is in my view a relevant factor in this regard that each of the students has now graduated.

With respect to those facets of the public interest suggested by the University as militating against disclosure, Mr Bayne submitted that, at least in respect of what might be termed routine matters as opposed to high level policy matters, arguments based on candour and frankness were no longer accorded much weight by courts in public immunity claims. He relied upon the recent decision of the Tribunal in Murtagh where the Tribunal referred to the leading authorities in England and Australia on public interest immunity claims and concluded at 326 that:-

"The candour and frankness argument is not new.

It achieved pre-eminence at one time but has now

been largely limited to high level decision-making

and policy-making."

In his written submission Mr Bayne added that, in assessing the effects of

disclosure on the public interest, it was relevant to take account of the following matters:-

"a) that disclosure of the documents in question

will occur after the completion of the

decision-making processes to which they relate

- see Sankey v Whitlam (1978) 142 C.L.R. 1,

41-2 per Gibbs C.J., 97-98 per Mason J., (and

see National Labour Relations Board v. Sears,

Roebuck and Co. [1975] USSC 81; (1975) 421 U.S. 132, 152);

b) that this is not a case where the applicants

(or anyone else) is in a position to obtain any

sort of advantage owing to premature disclosure

- compared to one of the kinds of claim made by

public servants as a ground for non-disclosure

in the public interest; see Volume 14 Federal

Law Review No. 1 at p. 86, footnote 85;

c) that there has been disclosure by members of

the History Department (including the

Acting-Chairman, Dr Kent) of several of the

documents (or of the information in the

documents) which constitute the range of

documents sought - see Sankey v Whitlam, supra,

at 45, per Gibbs C.J.; and

d) that the fact that disclosure may mean that, in

the future, members of the History Department

(or indeed of any Department or Faculty) may be

less prone to record comments (such as one that

a student was 'practically illiterate') is an

effect of the F.O.I. Act which is in the public

interest, (see Senate Standing Committee on

Constitutional and Legal Affairs, Freedom of

Information (1979), paras 4.56 to 4.60)."

It is, in my view, a legitimate ground for concern on the part of the

University that, even ex post facto disclosure of comments recorded on student Record Sheets and of the precise range within a grade accorded to a particular piece of student work may prejudice the History Department's assessment procedures, by discouraging academics from expressing opinions freely and candidly or by encouraging academics to assess a student's performance less rigorously than they otherwise might do, so as to court favour with students. That concern is a particular expression of the public interest in seeing that the academic integrity of the assessment procedures adopted by the University is maintained.

In this regard I am mindful of the fact that the assessment of the relative academic merits and the objective academic worth of a student thesis can be a very difficult, complex and subtle task requiring a breath of academic expertise, knowledge and integrity. Particularly is this so at Honours level in a discipline such as History, where a student is not being examined simply as to the student's grasp of essential facts, but rather as to his capacity to marshal, interpret and evaluate a range of source materials and to develop and sustain a particular theme. It is almost inevitable, in such circumstances, that differences of opinion are likely to emerge between examiners. These differences will be reflected in the raw grade and the range within that grade, awarded by particular examiners - information at present withheld.

The present system does not shrink from exposing differences of opinion, in that students are allowed access to the edited reports prepared by their examiners. It is significant, in my view, that, where there are differences of view, a process of moderation follows of which no record is kept in writing except a record of the final agreed result. The fact that that is the present practice and, on the evidence before me, is a practice that is likely to continue is, I think, of considerable relevance when one considers the potential risks that may be involved in disclosing, after completion of the Honours year, the full details of raw assessments and the names of the examiners. Such disclosure, after the completion of the assessment and moderation process, would disclose how any disagreement arose and how it was resolved. It may disclose information that would suggest a change of view by one or both of the examiners. I accept that some examiners may feel threatened by such disclosures and that there is a possibility that their approach to assessment of student work may be consequentially affected. On the other hand there is, I think, much to be said for the view expressed by Dr Merritt and Dr Moore that an academic in assessing the work of a student must be prepared to make judgments honestly and impartially and be prepared to stand by those judgments. Indeed, those are the characteristics of a good academic that Mr Baker referred to when he spoke of academic independence from authority, on the one hand, and from students on the other. The question is whether graduate students should be denied access to information about their undergraduate performance because of fears that open disclosure may prejudice the assessment system by exposing some members of academic staff to pressures with which they may be unable to cope. However, the pressures flowing from greater accountability are, in my view, an inescapable concomitant of more open government. To react too timorously to every anticipated situation of pressure could well negate the principles underlying the Freedom of Information Act. Whether those principles fit comfortably upon an academic institution such as the Australian National University may be another question. But it is not a question to which I need to address myself. Parliament has made the decision that the Act is to apply.

Given that there are already, within other Faculties or Departments of the University, more open assessment procedures than those currently followed in the History Department, I would have thought that if the fears and concerns to which I have referred are likely to be borne out in practice, there would be evidence available to the University of the damaging consequences of greater openness. When it comes to the question as to the weight that should be given to those fears and concerns, therefore, the absence of any evidence of actual harm from more open assessment procedures is a fact to which, I think, I am entitled to have regard. It is obvious from the evidence before me, there is no uniform approach to open disclosure within the Australian National University itself, nor is there any uniform approach within other tertiary institutions in Australia. Within the History Department itself there is a divergence of view as to the likely dangers of a more open disclosure policy. In such a finely balanced situation, it is my view that the principle of openness enshrined in the Freedom of Information Act tilts the balance in favour of disclosure.

Taking each of the documents in turn, I am not satisfied that the disclosure of the Record Sheets would be contrary to the public interest. The Record Sheet is intended to be an aide-memoire in respect of comments recorded on essays, student performance in tutorials and the like. There is, in my view, a public interest in such records being maintained accurately and fairly - particularly if, as Dr Merritt said in his evidence, other members of academic staff have access to the Record Sheets from prior years in respect of particular students. I agree with Mr Bayne that if, as a consequence of the Freedom of Information Act, greater care is taken by academic staff as to the comments recorded, that will serve the public interest.

Although Supervisor's certificates disclose, in part, opinion recorded relating to the deliberative processes of the University, the evidence is that in the majority of cases, those opinions have been disclosed to the student concerned. Students have a legitimate interest in knowing what is said by their supervisor about their History 4A thesis. No ground of public interest against disclosure has been suggested to me that would persuade me that it is contrary to the public interest if those certificates were now disclosed.

Notwithstanding any prejudice that might flow to the present assessment systems by disclosure of full details of the Examiners; Reports and the Grade Compilation Sheets, it is my view that, at least in a case such as the present where the assessment process is completed the public interest in disclosure, on balance, outweighs any public interest against disclosure.

It follows that in respect of none of the documents in question are the claims of exemption under s. 36 or s. 40 made out. As the claims of exemption under s. 45 were held over pending this decision, I reserve liberty to apply in the event that the respondent wishes to press those claims. Any such application should be made within 14 (fourteen) days from the date of this decision.