McKean v Department of Justice - [2016] NSWCATAP 93 - NSWCATAP 2015 case summary — Zoe

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McKean v Department of Justice

[2016] NSWCATAP 93

NCAT Appeal Panel|2015-12-15|Before: O'Connor AM

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Source facts

Court

NCAT Appeal Panel

Decision date

2015-12-15

Before

O'Connor AM

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

REASONS FOR DECISION

This appeal arises from an agency refusal to disclose to an examinee certain information relating to the conduct of examinations, in response to an access application made under the Government Information (Public Interest) Act 2009 (GIPA Act). The applicant, Mr Zane McKean, applied for review by the Tribunal. The Tribunal dismissed his application, and affirmed the agency's decision. He now appeals.
The examinations were conducted by the Legal Practitioners Admission Board (the Board). The access application has been handled by the portfolio department for the Board, the Department of Justice (the agency), as permitted by the Government Information (Public Access) Regulation 2009, cl 12.
At the relevant times, Mr McKean was a student in the Board's course for a Diploma Law. He was unsuccessful in some of the subjects done in the Winter semester of 2013. On 2 December 2013 he applied for access to a range of information relating to the Board's conduct of the examination process. The agency had regard to advice from the Board in making its determination. Mr McKean was provided with some of the information he sought. The agency refused to disclose information falling into the following categories. Those refusals were affirmed by the Tribunal at first instance: 1. Marking guides (prepared by examiners) in the subjects of Evidence, Taxation, Legal Ethics (2 different courses affected), Conveyancing, and Insolvency; 2. Examination scripts of other students: the original request was for the scripts of 200 students, but is now confined to two samples - 6 in Insolvency, and 8 in Legal Ethics; 3. Board's record of all final examination results, and some assignment marks, in the subjects of Legal Ethics, Insolvency and the Law of Associations, together with correspondence between the Board and the examiners.
The case now has a long history. It has been the subject of: a primary decision by the agency; an internal review decision; referral to the Information Commissioner and review by the Commissioner, resulting in a recommendation that the agency reconsider its prior decision; a further primary decision; and a further internal review decision (the latter dated 27 October 2014). There have been ancillary decisions bearing on other issues (processing fees, voluminousness of request, for example). The main application for review was lodged with the Tribunal on 26 February 2014 (file no. 1410716). The appellant subsequently withdrew it and it has been formally dismissed. The applications for review that remain active, and underlie these proceedings, are nos. 1410640, 1410502 and 1510124. The Tribunal delivered the decision now under appeal on 24 August 2015. The appellant lodged his appeal on 23 September 2015.

[2]

Law Applicable to Access to Information Applications: Outline

A person who makes an access application for government information under the GIPA Act has 'a legally enforceable right to be provided with access to the information in accordance with Part 4 (access applications) unless there is an overriding public interest against disclosure of the information': s 9(1). So the ultimate issue in cases of the present kind where the agency has refused to grant access is whether there is an overriding public interest against disclosure of the information sought.
Section 13 is the pivotal provision, and provides: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
Section 13 requires the decision-maker, therefore, to engage in a 'weighing process' that compares the public interest considerations against disclosure with those that favour disclosure. (Often the acronyms OPIAD, PICAD and PICFD, are used to describe the three concepts used by this provision, and we will use them in the course of the reasons that follow.)
While the Act does give at s 12 some illustrations of PICFDs, the possibilities as to what might be regarded as a PICFD in a particular case are not restricted by the Act in any way. This contrasts with the position in relation to PICADs. Section 14(2) provides: (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
We should note, for completeness, that s 14(1) does give some special protection to certain types of government information. It provides: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
There is no s 14(1) claim in this case.
As part of the process of weighing the balance for the purpose of s 13, any indications given by the Act are to be taken into account: for example, the statement in s 12(1) that '[t]here is a general public interest in favour of the disclosure of government information', and the injunction found in s 15 that the decision to be made under s 13 is to have regard to the 'principles' set out in s 15. Section 15 specifies certain considerations to which regard must not be had ((c): embarrassment to, or loss of confidence, in the Government, and (d): possible misinterpretation or misunderstanding of the information sought if disclosed).
Section 105(1) provides: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

[3]

Agency's Case

Before the Tribunal the agency relied on affidavit material from senior officers of the Board connected with the examination process, especially the affidavit of Christopher David Banks, sworn 18 December 2014 (Tab 12 of the agency's folder of documents for the appeal).
In relation to refusal of the of three types of documents sought (internal marking guides, sample of marked examination scripts and records of all results in specified courses), the agency relied on the following considerations found in the Table accompanying s 14 and argued that they outweighed the public interests in openness of the examination process advanced by the appellant, ie.: (1) in the instance of the marking guides, Table, cl 1 (f) and (h): 1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (f) prejudice the effective exercise by an agency of the agency's functions, (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). (2) in the instance of the examination scripts, Table, cl 1 (f) and (h) plus Table cl 1 (g), and so far as the students whose papers were sought were concerned Table cl 3 (a), cl 4(d): 1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, 3. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, 4 There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (d) rejudice any person's legitimate business, commercial, professional or financial interests, (3) in the instance of the results information, the agency relied on each of the abovementioned considerations except for Table cl 1(g).
The agency submitted that disclosure of the material withheld would have a number of adverse effects on its examining functions, including: 1. undermining finality of the process; 2. promoting contention, through allowing a student disappointed with their mark to see other marked scripts, and engage in debate about the fairness of their marking; 3. effect on the Board's ability to administer exams efficiently, 4. diverting students' energy and time away from core study to satellite disputation; 5. altering the role of examiners, and adversely impacting on their commitment to the task; 6. contributing to misapprehension of the nuances of marking where conceptually similar content might be marked quite differently because of differences in the fluency, persuasiveness and rigour of the analysis.
The agency referred to procedures it does have to allow for minimising error in marking, especially in the case of candidates whose initial mark falls below the pass grade, and the way it deals with any applications for reconsideration or review.
The agency's concerns also referred to the impact general opening of examiner's marking guides might have on the way candidates prepared for examinations and the dangers of collaboration and the preparation of template answers.
This is a brief summary of the matters raised by the agency at first instance.

[5]

Tribunal Decision

The Tribunal commenced by examining the decision to refuse access to marking guides. It identified the following considerations as PICFDs, and favouring access and transparency: the general public interest in disclosure of government information ([14)); that the disclosure of marking guides might enhance public accountability of examiners, and promote scrutiny of examiners' performance ([19]); disclosure of marking guides and examination scripts could reasonably be expected to inform the public about the agency's practices in dealing with law students' examination answers ([22]); and found that similar public interest considerations applied to disclosure of examination results ({23}). The Tribunal also accepted that disclosure might reveal negligent conduct, but rejected Mr McKean's contention that there was negligent conduct in the marking of his answers in Legal Ethics (see [29]-[30]).
As to the case put by the agency, the Tribunal accepted its evidence that disclosure of the material sought would give rise to the detriments claimed in relation to lack of finality. As to the effect of disclosure of marking guides, the Tribunal accepted the agency's evidence that routine disclosure would give students too many 'keys' to the approaches seen as best in answering questions on particular topics (see [42]). The Tribunal accepted that publication of marking guides may have an inhibiting effect on the exercise of evaluative judgments by examiners of experience that went beyond the scope of the matters addressed by the guide (eg. persuasiveness and organisation of argument, fluency and the use of effective expression, conciseness and the like) (see [50]-[52]). The Tribunal summarised the detriments it considered to be significant in relation to access to marking guides at [51] of its reasons. The Tribunal went on to refer to other matters that it considered the agency had established at [53] and [54], and accepted that, as submitted, the PICADs to which Table 1(g) and (h) referred were made out. The Tribunal concluded ([54]) these two PICADs 'cover the same ground and are not cumulative in effect'.
At [56] to [69] of its reasons, the Tribunal dealt with the agency's argument that disclosure to an access applicant of the marking guides infringe confidentiality and fall within the scope of cl 1(g) either because disclosure would be 'in breach of confidence' or 'otherwise result in the disclosure of information provided to an agency in confidence'. The Tribunal referred to the relevant legal principles, and was satisfied that this consideration could be relied upon. The Tribunal also noted that it was not a relevant detriment that the government might by publication by exposed to criticism and public discussion. The same point is reflected in s 15 of the GIPA Act. In the ultimate, the Tribunal gave 'little to no weight to this public interest consideration [i.e. cl 1(g)]' because it is 'founded upon and largely co-extensive with other public interest considerations against disclosure' ([69]).
At [70]-[72] the Tribunal summed up, and found established an OPIAD for the purposes of s13.
The Tribunal then dealt with the second part of the access application, the request for examination scripts. The Tribunal was satisfied that the PICADs found in cll 1(f), (h) and (g) were made out, and noted in the case of cl 1(g) that there were private interests (ie. examinees' interests) not just governmental interests that were served by treating the scripts as the communication of information in confidence. The Tribunal also accepted the agency's case in relation to the relevance of the PICADs protecting personal information, cl 3(a), and the possible prejudice of disclosure to a student's professional interests (cl 4(d)), but gave the latter consideration a 'low weighting' ([96]).
It went on to conclude that an OPIAD for the purposes of s13 had been established.
Finally the Tribunal examined the case in relation to disclosure of the spreadsheets of course examination results. The Tribunal did not accept that all the concerns previously raised applied with equal force to the results list. The earlier categories of information bore on the conduct of the evaluative process, whereas results lists are administrative records of final outcomes. It accepted, however, that there might be an effect on finality (of a similar kind to that raised in relation to the earlier categories of information) by release of results lists, and similarly in relation to the effect of disclosure on the agency's administrative load (see [103]). It accorded 'high weight' to this consideration ([103]). In particular, the Tribunal accepted that the student examinees' interest in non-disclosure of personal information might be adversely affected, in circumstances where there were a small number of students, and even if the data was released in anonymised form, it might be possible to piece together the results and identify the student to whom the result related.
The Tribunal summed up, and concluded that a s13 OPIAD was established.

[9]

Ground 3

The Tribunal erred by finding that the public interest considerations against disclosure in cl 1(f) of the Table applied.
Mr McKean's right to appeal is confined to 'questions of law'. He may only address 'other grounds' if the Appeal Panel grants leave to do that. A grant of leave in a case of the present kind would, in effect, reopen the merits of the Tribunal's conclusions regardless of whether there was any material error of law.
Questions that are not 'questions of law' have traditionally been classified as 'questions of fact', reflecting the historical distinction between the functions of a judge and the functions of a jury.
There has been uncertainty as to whether an appeal right confined to a 'question of law' embraces an intermediate category often identified in discussions of the distinction between 'questions of law' and 'questions of fact', that of a 'mixed question of fact and law'. The modern view is that they should be construed to cover mixed questions of law and fact. Appeal provisions of the present kind only exclude appeals in relation to 'pure questions of fact': Haritos v Commissioner of Taxation [2015] FCAFC 92 at [192] ff.
It is therefore necessary to distinguish between questions of law and 'other grounds'.
At the outset of the appeal hearing the Appeal Panel invited Mr McKean to take us to the paragraphs in the Appeal Panel decision to which he objected, and to explain why he thought the reasoning in those paragraphs raised a question of law, and how the Tribunal might have erred in law. He drew attention to eleven parts of the reasons.
We have taken this presentation into account in considering the grounds as set out first in the notice of appeal and then in the extensive written submissions that Mr McKean has filed, and the written submissions in reply from the agency.
Mr McKean acknowledged as relevant to his 'error of law' case the well known statement in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ, explaining the limited circumstances in which an appellate court might intervene, on error of law grounds, in a first instance decision of a discretionary character: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
It will be seen that the notice of appeal adopts a number of the concepts found in this statement, as did his submissions.
We have approached the appeal on the basis that the questions of law before us are ones derived from the principles set out in House v R.

[10]

Appellant's Submissions

As noted earlier, the Act identifies squarely one PICFD - one expressed at the highest level of generality - 'the general public interest in favour of the disclosure of government information' (s12(1)). It then gives some illustrations of other public interests that might favour disclosure (s12(2)), but otherwise leaves it to open the decision maker to specify further public interests that might favour disclosure in the circumstances of the case, and sets no limit to what they might be. In our summary of the Tribunal's reasoning, we have noted the PICFDs ultimately accepted by the Tribunal.
As explained above, the Tribunal largely accepted the agency's case as to PICADs drawn from the s14 Table upon which it could rely. In that regard, it accepted a number of the detailed arguments as to their significance made by Board officers and in the agency's submissions.
Mr McKean submitted that the Tribunal wrongly disregarded his argument as to the more specific PICFDs that were served by disclosure that went beyond the general principle set out in s12(1).
This, in his submission, resulted in the balance as between PICFDs and PICADs for the purpose of s13 being tilted from the start too far in favour of the agency's case. The Tribunal, wrongly he submitted, only identified one PICFD (the most general one), but accepted the agency's case as to the relevant PICADs, and more importantly, much of the detailed argument in support it made setting out particular matters of concern (these could perhaps be called 'sub-considerations').
The Tribunal did not confine itself in relation to relevant PICFDs to the degree suggested by Mr McKean. As we have noted in our summary of its reasons, it did itemise other PICFDs that were relevant. But it did express some reservations about their strength. For example, it expressed concern that it had no independent expert evidence in relation to the question of whether good pedagogy required the publication of marking guides.
Further in weighing the balance it unfairly, in Mr McKean's submission, did not accept as useful two case law decisions he relied upon (McKean v University of Melbourne [2007] VCAT 1310 and Re James and ors and Australian National University (1984) 6 ALD 687, and unfairly regarded as helpful the one case law decision that the agency had relied upon (Redfern and University of Canberra (1995) 38 ALD 457).
In Re James the AAT (Hall DP) rejected the university's case, and granted access requests by several recent Honours graduates in the BA (History) to information relating to their performance in various courses they had undertaken, including all those belonging to the final Honours year. The information disclosed included examiners' comments and assessments of their final year thesis. Similar arguments to those mounted by the agency in this case were mounted by the university in that case. The AAT ruled that while some adverse effects flowing from disclosure had been demonstrated they did not outweigh the public interest in disclosure. The reasoning of VCAT in McKean is along similar lines. In that case Mr McKean (the present appellant) succeeded in having reversed a decision of the university refusing to disclose to marking guides for two Finance courses he had undertaken as in that Faculty.
Redfern dealt with the question of whether to give access to a sample of other students' examination scripts. The AAT refused access to that material having regard to a variety of public interest considerations, including the expectation of privacy and anonymity of those students, impact on finality of allowing access of this kind, the possibility of encouraging plagiarism, and the availability of other procedures for having a failed exam reassessed.
As to the present case, Mr McKean criticised the Tribunal for drawing on the expert evidence given by the officers of the Board, and not referring to, and explaining why it did not have regard to, expert evidence he produced (in the form of journal articles).

[12]

Consideration

This was an orthodox case in the sense that the question of whether an OPIAD for the purposes of s13 arose depended on a balancing of the PICFDs found to arise by the Tribunal against the PICADs found to arise under s14(2). (There were no conclusive presumptions against disclosure raised in this case. Therefore the rule in s14(1) did not come into play.)
The Tribunal had before it a body of material from Board that defended on educational and administrative grounds the present approach to the confidentiality and secrecy of the material sought. While the officers of the Board who gave evidence had an interest in the outcome of the matter, and that sense were not independent, they had expertise and experience in the conduct of examinations. They were available to be cross-examined. On the to other hand, the Tribunal did not have before it any equivalent material from educators, administrators or others who might have a considered view to offer to the contrary, i.e. a view that supported openness in the ways and to the degree advocated by Mr McKean. It only had Mr McKean's assertions to the contrary, with the limited exception of the two journal articles.
This is an area where the decision maker is given a wide discretion by the law in identifying what may be seen as relevant, and weighed in the balance. Furthermore the Tribunal proceeded at each stage of its analysis to give a weighting to the considerations it identified. Mr McKean challenged the degree of weight given by the Tribunal to the considerations on either side of the balance. 'Weighing' and signifying the degree of weight is an orthodox part of any reasoning process that requires the consideration of competing factors. In the question of fact/question of law dichotomy it is a fact-finding activity.
Weighing processes can only be undone on error of law grounds in circumstances of the kind set out in House v R.
In our view, the Tribunal decision was not affected by any consideration of a wrong principle. It gave reasons as to the factors it took into account on both sides of the case, the strength of the evidence, and the weighting it gave to those factors. Plainly it regarded the matters raised by the agency as very significant, and the public interests in transparency of the examination process that might flow from release of the information sought as less significant in the circumstances of the case. In our view, it clearly explained its preference, and was satisfied that it was sufficient to give rise to an OPIAD for the purpose of s13.
We agree with Mr McKean that the Tribunal's conclusion is dissimilar to the one reached by the AAT in Re James and ors and Australian National University and in McKean v University of Melbourne, in both of which the outcomes were favourable to the students' claims for access to exam related information. We agree that the Tribunal accorded greater significance in its approach to the outcome favourable to the agency in Redfern and University of Canberra.
But none of these cases are precedents in any strict sense. They are cases where the relevant tribunal engaged in a balancing of considerations process, albeit within statutory frameworks that were different in their detail to the GIPA Act. These cases merely highlight the width of discretion a tribunal has in cases of the present type in forming a view as to what is the correct or preferable decision in the circumstances.
In our view, the Tribunal's process of evaluation did not infringe the principles of House v R.
A number of additional points were made by Mr McKean which we will deal with briefly.
Mr McKean submitted that he should at the least be given access to the marked examination scripts of the six students who did not object to disclosure of their work. They had been consulted by the agency as part of the process of ascertaining the view of persons whose personal information might be disclosed in response to the access application. He submitted that, to that extent, the Tribunal's reliance on the PICADs relating to in-confidence supply of information were negated. While the information was initially provided in confidence (as explained by the Tribunal), that protection was, he submitted, in effect waived by the students consulted.
However, the Tribunal did not rest its judgment on the cl 1(g) consideration alone, it also gave significant weight to other PICADs (see [52]), and gave particular emphasis to the public interest in non-disclosure of personal information ([91]). It acknowledged in its reasons that not all students were opposed to disclosure of their marked scripts (see its reference to 'the majority' of students being opposed ([92])). In our view its reference to the in-confidence nature of the material, fairly, should be read with the same understanding. Fairly read, we do not think it is saying that the PICAD found in cl 1(g) remained applicable to that group of papers. It is clear that its s13 calculus involved a global conclusion affecting all scripts, and that it reaching that conclusion it accepted the agency's argument that the group of papers where the students were happy for them to be disclosed should be treated no differently.
Our conclusion is that no errors of law material to the orders made by the Tribunal have been identified.

[13]

Application for Leave to Appeal on Grounds other than Questions of Law

Mr McKean's application repeats a number of the points to which we have already referred. His application ends by stating: 'because the appeal is arguably based on a mixture of errors of law and errors of fact, it would be more appropriate (and simpler) to deal with all issues, rather than drawing a somewhat arbitrary line between errors of law and fact'.
As we have noted earlier, the Act establishes a question of law/other grounds framework for appeals against final decisions. The Appeal Panel therefore must work with that dichotomy, even though, as Mr McKean rightly submitted, the drawing of distinctions between 'questions of law', 'questions of mixed fact and law' and 'other' questions, or 'questions of fact' is often fraught with difficulty.
The Appeal Panel must take care not to allow the right to appeal on questions of law to be turned, by light-handed administration of the leave discretion, into an appeal that leads to the full reopening of the merits of the case. That would thwart the intention reflected in Parliament's establishment of a dichotomy as between the circumstances where a right to appeal is allowed (questions of law) and other circumstances.
The weighting given to particular factors relevant to an exercise of discretion is something on which reasonable minds may differ.
We acknowledge that Mr McKean could point to cases where student applicants (he being one of them) had been successful in obtaining some material similar to that denied to him here. Whilst it might be said, as the agency did in its submissions, that they involved differently constructed freedom of information laws, the important point for present purposes is that they, too, involved an evaluative, discretionary weighing-of- considerations process. The balance was struck more favourably to the student's claim in two of those cases. We also accept that practices vary between academic institutions in relation to publication of marking guides and the provision of results lists, and their detail. The making available of marked papers (on a sample basis, usually anonymised) is not unknown.
But we are not satisfied in this case that the Tribunal erred in law at any point of its reasoning process. It was open to it to reach the conclusions that it did, and explained its thinking clearly. There are no special factors in this case of the kind set out in cases such as Collins v Urban [2014] NSWCATAP 17 at [83]-[84] that might warrant a reopening of the merits of the decision.
Leave is refused.