James & Ors. v. Australian National University 6 ALD 687.

The Tribunal affirms the decision the subject of review.

In a widely-drawn application, Mr. Ascic sought access under the Freedom of Information Act 1982 ("the FOI Act"), to in effect, all the material relative to his period of attendance as a policeman at a Promotions Course run by the Respondent ("the AFP") and known as D.T.S. Stage 3-1/85. The majority of documents sought were released to him, but exemption from disclosure was claimed as to certain examination papers and briefs of evidence. The Sections of the Act relied on for exemption were s.40(1)(a) and s.40(1)(b).

"(1) Subject to sub-section (2), a document is an exempt

document if its disclosure under this Act would, or

could reasonably be expected

(a) prejudice the effectiveness of procedures or

methods for the conduct of tests, examinations . . .

by an agency;

(b) prejudice the attainment of the objects of

particular tests, examinations . . . conducted by an

agency;

. . . . . . . . . . . . . . . . . . . .

(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."

3. The decision taken was affirmed on internal review.

4. At the hearing before this Tribunal reliance was also placed on sub-sections (40)(1)(c) and (d) - "substantial adverse effect on the management or assessment of personnel by an agency", and "substantial adverse effect on the proper and efficient conduct of the operations of an agency".

5. The applicant had contended as reasons against the claim for exemption certain facts, namely that:-

(a) the course in question had been discontinued;

(b) candidates in the applicant's course had been

permitted to copy questions in the disputed

documents in that such conduct had been either

expressly or impliedly consented to by the

instructors;

(c) disclosure would work no prejudice as the papers

were of such a nature that they could easily be

recomposed each year;

(d) by being unable to obtain the material sought the

applicant has suffered prejudice in his police

career;

(e) the conduct of examining officers had lacked

propriety in that they had demonstrated bias and

discrimination against him.

6. Oral evidence was taken from Detective Sergeant Keelty a senior instructor of the Training College, Superintendent Leffers officer-in-charge Career Training Branch of the AFP, Senior Constable Camera who had been on course with the applicant, and by Mr. Ascic. Documentary material relating to the examination in question was exhibited.

7. The disputed documents were made available in confidence to the Members of the Tribunal. They consisted of certain of the "true or false" questions, "multiple choice" questions, questions requiring short written answers, and marking guides to the lastmentioned, in examinations 1, 2, 3 and 4; and three brief writing exercise scenarios.

8. An affidavit by Superintendent Leffers set out details of the examination structure in the Detective Training School. A secure examination question bank is maintained for what examinations are set. They are kept in written form in a locked filing cabinet in a locked storeroom used exclusively for detective training exam questions and answers, a room to which there is but one keyholder of inspector's rank. To facilitate consistency of assessment from one course to another, and as a result of the relatively narrow detective training syllabus, the same questions are recycled on a regular basis. It was explained that this procedure was also intended to eliminate any suggestion of discrimination. From the nature and number of the short questions required for testing, it is said to be impracticable to set fresh questions at each new examination, and that the variety of scenarios which can be set for the written answers are limited - which requires their re-use from course to course.

9. It has not been the policy of the Department to release questions relating to detective training examinations (a different policy is pursued as to promotional exams because of the extensive syllabus in promotion courses and the essay-style answers required therein). But when exams have been marked, each student is interviewed, shown his paper, and had his paper discussed with counselling staff; whereupon the papers are stored by staff in sealed boxes in the locked storeroom.

10. The questions are designed to test knowledge of trainees at particular stages of their course and to achieve the object of producing well-trained, effective officers with sound basic theoretical knowledge of detective work. It is contended that if the questions were available in advance, candidates could by mere rote and short-lived learning, tailor their studies with a view to the examination only, rather than to the gaining of the necessary technique and powers of application.

11. Senior Instructor Keelty stated that as the course proceeds, the marking indicates whether a candidate is achieving the necessary percentage; in the applicant's case, he after counselling, withdrew from the course in the fifth week. There are some 700 true-false and multiple-choice questions in the bank; 90% of the questions asked are the same in each exam. There are some 50 scenarios for the short written questions. Detective Sergeant Keelty would regard it as difficult to draw up different questions - particularly as to the first four weeks (to which the documents sought, of course relate), because the instruction remains virtually the same in each course, and under a proposed new course the first six weeks will be similar to the 1985 one which Constable Ascic attended.

12. Detective Sergeant Keelty stated that he did not permit anyone to copy questions or answers, and that the members of the course concerned were aware that two candidates had been dismissed in connection with a charge of alleged cheating by passing the questions in examination No. 2 to a candidate who because of court commitments interstate had to take the examination at a later time.

13. It appears that during the course the applicant had complained of unfair marking in comparison with that of other students; the complaint being referred to the Superintendent, his marks were re-marked and compared with those of seven other students taken at random. Apparently no unfairness was revealed.

14. Prior to the hearing before the Tribunal, the applicant in support of his rebuttal of the claims for exemption had made available to the Respondent bundles of copies of documents which he had already in his possession - of nature similar to those sought. These were exhibited as 3 (a) to (e). Detective Sergeant Keelty identified them as:-

3 (a) a question paper and marking guide from a course

later than the applicant's;

3 (b) a reconstruction of exam questions and answers from

Examination 5 (apparently in the sixth week of the

course) done on several different typewriters;

3(c) a photostat of questions and answers in Examination

1 - apparently from a master copy left in the

classroom;

3(d) a reconstruction of exam questions and answers from

Examination 3 done on several different

typewriters;

3(e) a reconstruction on several different typewriters

of questions and answers in Examination 4.

15. Exhibits 1 and 2 were analyses of this material already in Mr. Ascic's possession. Detective Sergeant Keelty's summary of these and the actual material was to the effect that the applicant already had access to all questions and answers in Examination 1, none in Examination 2, perhaps some 30% of true/false questions and answers and less than 10% of multiple choice questions and answers in Examination 3, and 85% to 90% of both types of questions in Examination 4. Senior Constable Camera also gave evidence as being another person on course with the applicant. He left the course after 8 of its 12 weeks. He explained that it was agreed among the candidates (and he alleged similar behaviour occurred on all such courses) that during the "post mortem" on each examination, each student would take down an apparently allotted one page of questions and answers and portion of the scenarios. This was done he said, while one instructor sat at the front going through the questions and answers and two or three others stood at the side or moved around. The degree of success he stated depended on how quickly the instructor went through the answers. The note-taking was, he said, very open. Its intention was to use the material gathered for revision purposes for the subsequent exams. He stated that no instruction had been given contrary to this activity, but admitted that the agreement among the candidates was made because the papers were being gathered up. No attempt was made to hide the copy he said, although he knew disciplinary action was taken against two members accused of providing exam material to a returning student in the third or fourth week. The questions and answers would later be typed up, assimilated and a copy given to each candidate.

16. The applicant corroborated the picture drawn by Detective Constable Camera. He explained that the system of copying questions and answers did not always function because "3 or 4 members would be missing sometimes". When he left the course he took with him all the documents in Exhibit 3 except those in bundle 3(b) which was reproduced after he had left the course. He claimed that bundle 3(a) had in fact been handed to him by an officer. In cross-examination he withdrew any suggestion that he himself had been discriminated against - saying his complaint was rather a broader one as to the conduct of the course.

17. It is patent that in the course which Constable Ascic attended a determined attempt was made to beat what was recognized as the desire of the Respondent to maintain security as to the contents of examination questions, the directing staff's solutions and the system of marking. After considering the method used by the candidates, it is difficult to avoid the conclusion that the whole, or most of the policemen on course were engaged in trying to cheat the system of their own organization (a course of conduct which we apprehend would be disturbing to the organizers of the Courses at the Force generally). Applicant's Counsel conceded that it was difficult to argue that consent had been given to the obtaining of the material that has been shown to have been gained.

18. We make the finding that the authorities would not willingly have agreed to the material which was obtained, being so obtained; and that there was no authority given for the applicant and his colleagues and others in that regard.

19. The course concerned has not been discontinued, and we accept the evidence to the effect that in such a narrow field it would be difficult indeed to produce other differing sets of questions and answers, particularly in view of the numbers of them that are required. The type of questions used in examining candidates must be a very convenient way of testing knowledge quickly over the area of law and procedure which provide the necessary environment of a detective's work. Obviously the design of the course and system are to provide the best mentally-equipped, the best-informed policemen available to demonstrate initiative and ability in the most important activity of the prevention and detection of crime. Should the questions to be asked and the answers to be given in pending examinations be generally available to candidates in training, the resulting choice we consider, might reflect merely people of short memory and little else (or as Counsel for the Respondent suggested - "memory banks" or mere automatons).

20. The Tribunal's remarks in Barrell v. Australian Broadcasting Corporation (7 ALN N129) seem apt here. We consider the giving of access to the documents sought could contribute (as the acquisition of some already, could have done) towards allowing prospective candidates to be better able to prepare for and gain advantage at examination, or towards allowing a whole course to gain a false estimate for themselves as to their knowledge and abilities. The question of creativity or imagination does not necessarily feature in the AFP examinations, but the testing of potential professional technical competence does.

21. We are also of the opinion as the Tribunal was in the case cited above, that release of the documents sought to the applicant could reasonably be expected to require the Respondent to incur substantial expense by way of providing a number of alternative examinations with the intention of changing the tests frequently, and of course if the content of successive tests were revealed under the FOI Act no doubt thought would have to be taken as to whether the subject matter of the tests should be abandoned after each such revelation.

22. We form the conclusion for the reasons expressed above, that release of the documents sought could reasonably be expected to:-

1. prejudice the effectiveness of procedures and

methods for the conduct of tests and examinations

by the Respondent: (s. 40(1)(a));

2. prejudice the attainment of the objects of

particular tests, namely the selection of the most

competent and the best candidates for appointment

as detectives: (s.40(1)(b));

3. have a substantial adverse effect on the assessment

of personnel by the Respondent by leading to false

or less reliable results of testing for promotion

of officers to senior positions: (s. 40(1)(c));

4. have a substantial adverse effect on the proper and

efficient conduct of the operations of the

Respondent by exposing it to the selection of

inadequate or less than the best available

candidates for training for important jobs and by

causing avoidable expense not only thereby but

requiring it as a matter of prudence to devise and

make available a number of alternative examinations

in order to offset the advantages that some

candidates might otherwise obtain.

23. While of the opinion that there is a public interest that such training procedures and tests as we are considering should be as open and fair as possible, we are unable to conclude that there is any gain likely to ensue, or interest to members of the public arising from the making of these documents available to the applicant, such as could cause the balance of public interest to turn the decision of the Tribunal in favour of granting the application (compare James & Ors. v. Australian National University 6 ALD 687). The decision of the Tribunal therefore will be to affirm the decision on internal review which is the subject of application to it.