Crawley and Centrelink

[2006] AATA 572

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 572

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/31

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WAYNE CRAWLEY

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date30 June 2006  

PlaceBrisbane

Decision The decision under review is affirmed.  

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

Deputy President

CATCHWORDS

FREEDOM OF INFORMATION – psychological testing documents – personality assessment inventory – guidelines for administering and scoring of test including answer sheet exempt from release – disclosure not in the public interest – decision under review affirmed

Freedom of Information Act 1982 s 11(1), s 11(2), s 40(1)(a)(b)(d), s 40(2)

Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180

REASONS FOR DECISION

Deputy President P E Hack SC    

INTRODUCTION

1.In December 2003 a psychologist employed by Centrelink administered a psychometric test, the Personality Assessment Inventory (the PAI), to Mr Wayne Crawley. Mr Crawley seeks access pursuant to the Freedom of Information Act 1982 (the FOI Act) to the questions posed in the PAI, the guidelines for administering and scoring it and his answer sheet.

2.The respondent, the Chief Executive Officer of Centrelink, contends that this material is exempt from release under one or more of paragraphs (a) (b) or (d) of s 40(1) of the FOI Act and that disclosure of the material would not be in the public interest.

BACKGROUND

3.The PAI was developed in 1991 by Lesley C Morey and an entity connected with him, Psychological Assessment Resources. According to Ms Marlene Parry, a psychologist in the employ of Centrelink, the PAI is a self administered, objective inventory of adult personality designed to provide information on critical clinical variables. The test poses some 344 questions.  The test subject is required to choose one of four alternative answers – false, slightly true, mainly true or very true – that is accurate to the circumstances of the subject in response to those questions. The PAI is one of a number of psychometric tests used by Centrelink. All psychological testing by Centrelink is administered by qualified and registered psychologists. The test material and results are not made available generally to Centrelink staff. That material is retained by the psychologists who administer the tests. Ms Parry described the PAI as an excellent screener for a range of barriers to work.

4.It is as well to notice, at this juncture, two other matters. The first is the requirement of the Psychologists Code of Ethics, promulgated by the Australian Psychological Society Limited. Section (A) of that code deals with psychological assessment procedures. Paragraph 6 is germane to the present proceedings. It says,

Members must not compromise the effective use of psychological tests, nor render them open to misuse, by publishing or otherwise disclosing their contents to persons unauthorised or unqualified to receive such information.

5.A similar theme emerges from the standard terms and conditions imposed by Harcourt Assessment, the distributor that supplies the PAI tests (and other tests) to Centrelink. Under the heading “Test security” in those terms and conditions is the following,

Each person or institution purchasing a test must agree to comply with these basic principles of minimum test security:

ØTest takers must never be provided with answers to the test items.

ØTest materials are not to be reproduced in any way, either electronically, digitally or mechanically.

ØAccess to test materials must be limited to qualified persons with a responsible, professional interest who agree to safeguard their use and observe legislated Copyright requirements.

ØTest materials and scores may be released only to persons qualified to interpret and use them.

ØTest materials and results must be stored securely.

6.Having undertaken the PAI test in December 2003, Mr Crawley made application to Centrelink in September 2005 for access under the FOI Act to the PAI completed by him, the questions and alternative answers used for that PAI, the guidelines for administering and scoring PAI’s and the results of his PAI.

7.Some of this material has been made available to Mr Crawley through his medical practitioner. I am now only concerned with the question of whether Mr Crawley may have access to the questions in the test as well as the guidelines for administering and scoring the PAI and the answer sheet completed by him.

8.Mr Crawley relied upon a document, exhibit 3, which was partly evidence and partly submission. It sets out the dealings that Mr Crawley has had with Centrelink from the time of his completion of the PAI in December 2003. I should record that Mr Crawley has said, and his evidence was not challenged, that if granted access to the material he would not attempt to manipulate any future test results nor would he make the material available to others.

9.The critical evidence in the case is that of Ms Parry. She provided a sworn statement and was cross examined by Mr Crawley. I have no hesitation in accepting her evidence. She says of Mr Crawley’s request for access that,

The fundamental effectiveness of psychological testing is founded upon protecting the integrity and confidentiality of the questions and answers to the tests in question.

I accept that evidence, in part because it accords with common sense, but also because it is supported by the extracts from the Psychologists’ Code of Ethics and from the terms and conditions of supply that have already been set out.

THE LEGISLATION

10.Mr Crawley has a legally enforceable right of access to documents held by Centrelink by virtue of s 11(1) of the FOI Act. That right is not affected by his motivation for seeking access: see s 11(2).

11.Section 40(1) of the FOI Act, so far as it is presently relevant, provides as follows,

(1)  Subject to subsection (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) …

(d)have a substantial adverse effect on the proper and efficient          conduct of the operations of an agency; or

(e) …

12.As may be seen, each of the exemptions claimed by Centrelink is conditioned upon a finding that disclosure would, or could reasonably be expected to create one or more of the conditions subsequently set out. In Attorney General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 10 FCR 180 the Full Court of the Federal Court was called upon to consider the meaning of the expression could reasonably be expected to prejudice … in s 43(1)(c)(ii) of the FOI Act. At page 190 Bowen CJ and Beaumont J said of those words that they require a judgment to be made by the decision maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect the particular conclusion to follow. Their Honours deprecated the notion of considering the operation of the provision in terms of probabilities or possibilities or the like.

13.I have no hesitation in concluding, by reference to this test, that it is reasonable to expect that the release of the material in issue here would prejudice the effectiveness of procedures for the conduct of tests undertaken by Centrelink. On the evidence, it is plain that psychologists regard it as critically important that the subject matter of psychological tests not be available to persons who are not psychologists. There is an evident sense in that, particularly given the likelihood that widespread release or publication of the tests could lead to the prospect that the results obtained would not be accurate: that is, the results would not be an accurate reflection of the subject’s honest answer to the questions posed. That would frustrate the whole purpose of administering the tests.

14.Similarly, it is, in my view, plain that the release of the material is likely to prejudice the attainment of the objects of the test, given that the object of the test is to ascertain whether the subject has psychological barriers to work in order to allow psychologists to identify suitable interventions. The reliability of the tests would be prejudiced if it became generally available for scrutiny by persons who might be the subject of the tests.

15.With respect to Mr Crawley and without seeking to question his genuineness, it is not to the point that he says that he would not make the material publicly available nor would he attempt to distort his answers on any future test. As to the former, if, on the proper application of the principles under the FOI Act, it is released to Mr Crawley, then it must be released to anyone else who seeks its release. And Mr Crawely’s assurance that he would not seek to manipulate future test results, whilst no doubt genuine, does not exclude the likelihood of unconscious manipulation were he to become familiar with the terms of the questions.

16.I am also satisfied by the evidence of Ms Parry that release of the material would have a substantial adverse effect on the proper and efficient conduct of the operations of Centrelink because it would require Centrelink, in all probability, to discontinue the use of this particular test.

17.Having reached those conclusions it is necessary to consider s 40(2). That subsection excludes the operation of s 40 in the case of a document where disclosure under the FOI Act would, on balance, be in the public interest.

18.It may be thought that there is a public interest in persons subjected to tests by Centrelink having access to those tests and the mechanisms for assessing them in order to ensure that Centrelink undertakes the processes associated with the tests in a fair and proper manner. There is, I accept, a public interest in ensuring that Centrelink undertakes the testing process in a fair and proper manner. But, in my view, the overwhelming public interest is in maintaining the confidentiality of that material in order to preserve the effectiveness of the tests and the testing processes. If there is a public interest in releasing tests for the reasons I have outlined it is far outweighed by the public interest that agencies like Centrelink have available to them effective psychological testing methods used by qualified professional psychologists. The public interest in ensuring that Centrelink undertakes the testing process in a fair and proper manner is guarded by the qualifications, training and ethics of the professionals who administer those tests.

CONCLUSION

19.For these reasons Centrelink has satisfied me that the documents in issue are exempt from access and that it is not in the public interest that the documents be released.

20.The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Leisa Pendle, Associate

Date of Hearing  1 June 2006
Date of Decision  30 June 2006
Applicant appeared in person   
Solicitor for the Respondent    : Mr B Dubé, Centrelink Legal Services