DUNNE/BARDEN AND ACT DEPARTMENT OF EDUCATION & TRAINING - [2007] ACTAAT 26

AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:DUNNE/BARDEN AND ACT DEPARTMENT OF EDUCATION & TRAINING [2007] ACTAAT 26 (17 DECEMBER 2007)
AT06/63 & 66 & AT07/03
Catchwords: Freedom of Information –
Executive documents - conclusive certificates – reasonable grounds exist for claims that documents are Executive documents – application of Human Rights Act 2004 – Cabinet/Executive structure – purely factual material -

Internal working documents – conclusive certificates - reasonable grounds exist for claims that disclosure would be contrary to the public interest – purely factual material –

Documents concerning operations of agencies – exemption based on substantial adverse effect on the proper and efficient conduct of the operations of agency – disclosure of documents of agency in the public interest.

Administrative Appeals Tribunal Act 1989, s 37
Administrative Appeals Tribunal Act 1982 (Cth), ss 34,
Administrative Decisions (Judicial Review) Act 1989
Australian Capital Territory (Self-Government) Act 1988, ss 34A, 43, Pt 5
Education Act 2004, s 20
Freedom of Information Act 1989, ss 2, 10, 18, 35, 36, 38, 40, 62, 65
Freedom of Information Act 1982 (Cth), ss 34, 35, 36, 58
Freedom of Information Ordinance 1989 (No 46) (Cth)
Human Rights Act 2004, ss 16, 21, 28, 30, 32
Territory Records Act 2002, s 3

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Australian Doctors’ Fund Limited v Commonwealth of Australia (1994) 49 FCR 478
Claude Reyes et al v. Chile, Inter-American Court of Human Rights (19 September 2006)
Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60
Federal Commissioner of Taxation v Swiss Aluminium (1986) 66 ALR 159
George v Rockett (1990) 170 CLR 104
Harris v Australian Broadcasting Corporation & Ors (1984) 5 ALD 564
Howard and Treasurer of the Commonwealth (1985) 7 ALD 626
McKinnon and Secretary, Department of Treasury [2004] AATA 1364 (21 December 2004)
McKinnon and Secretary, Department of Prime Minister & Cabinet [2007] AATA 1969 (19 November 2007)
Porter and Department of Community Services and Health (1988) 14 ALD 403
Re Aldred and Department of Foreign Affairs (1990) 2 ALD 264
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 43 ALD 139
Re Howard and Treasurer of the Commonwealth of Australia (1985) 3 AAR 169
Re O’Sullivan and Police Force (Vic) (1986) 1 VAR 171
Re Toomer and Department of Agriculture, Fisheries and Forestry & Ors (2004) 76 ALD 645
Re Porter and Department of Community Services and Health (1988) 403
Runa Begum v London Borough of Tower Hamlets [2003] 2 AC 430
Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588

“An Opportunity Spurned: Michael McKinnon’s Case” (2006) 35 Federal Law Review 299 (Mr Chris Finn)

Tribunal:Mr M H Peedom, President
Ms P O’Neil, Senior Member
Ms S Tongue, Senior Member

Date:17 December 2007

AUSTRALIAN CAPITAL TERRITORY )

ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT06/63 & 66
GENERAL DIVISION ) & AT07/03

RE:      MRS VICKI DUNNE
Applicant in AT06/63
RE:      KATHLEEN BARDEN
Applicant in AT06/66 &
  AT07/03
AND:   ACT DEPARTMENT OF
  EDUCATION & TRAINING
Respondent

DECISION

Tribunal  :          Mr M H Peedom, President
  Ms P O’Neil, Senior Member
  Ms S Tongue, Senior Member

Date : 17 December 2007

Decision :

The Tribunal decides that:

reasonable grounds do not exist for the claims made in the conclusive certificates dated 19 February 2007 and 20 April 2007 issued under section 35(3) of the Freedom of Information Act 1989 (“FOI Act”) that the following documents are exempt under section 35 of the FOI Act:
Document Nos. 105; 106; 128; 131 except for those parts of the document marginally headed “Cabinet Submission on School Renewals” and “Risk Assessments”; 141; 144 pages 2922, 2923 and 2927; 145 page 2940; 149 pages 2979 and 2980; 152 page 3021 paragraphs 1, 2 and 4; 153 page 3023 paragraphs 1, 3 and 4; 155 page 3027;
Attachment G headed “Statutory Requirements” and Attachment J entitled “Scrutiny of the Legislative Assembly 6 June 2006 – 6 December 2006” of Document 3* contain purely factual material and section 35 of the FOI Act does not apply to them;
reasonable grounds exist for the claims in the conclusive certificates dated 19 February 2007 and 20 April 2007 issued under section 35(3) of the FOI Act that the documents not referred to in paragraphs 1 and 2 above are exempt under section 35 of the FOI Act;
reasonable grounds do not exist for the claims made in the conclusive certificates dated 20 February 2007 and 10 August 2007 issued under section 36(3) of the FOI Act that disclosure of the following documents would be contrary to the public interest:

Document Nos. 87, page 2575; 128, 130; 132; 142 and 151;

Document 147 contains purely factual material and section 36 of the FOI Act does not apply to it;

reasonable grounds do exist for the claim in the conclusive certificates dated 20 February 2007 and 10 August 2007 issued under section 36(3) of the FOI Act that disclosure of the documents not referred to in paragraphs (1) and (2) would be contrary to the public interest; and

the decision under review that Documents 2-19 are exempt from disclosure under section 40(1)(d) of the FOI Act is set aside and substituted by a decision that those documents are not exempt.

……………………….
President

AUSTRALIAN CAPITAL TERRITORY )

ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT06/63 & 66
GENERAL DIVISION ) & AT07/03

RE:      MRS VICKI DUNNE
Applicant in AT06/63
RE:      KATHLEEN BARDEN
Applicant in AT06/66 &
  AT07/03
AND:   ACT DEPARTMENT OF
  EDUCATION & TRAINING
Respondent

REASONS FOR DECISION

17 December 2007  Mr M H Peedom, President
  Ms P O’Neil, Senior Member
  Ms S Tongue, Senior Member

BACKGROUND

In order to review the outlook for the ACT Budget 2006-2007, to benchmark government expenditure against other jurisdictions and to identify options to improve efficiency through more effective government structures, the Chief Minister commissioned a strategic and functional review in 2006. The review was also tasked with making recommendations for reducing expenditure or increasing non-taxation revenues.

2. The review found, relevantly to this appeal, that across the nation the government education system was facing a significant loss of students to the non-government sector with this loss compounded by changing demographics, most notably an ageing population. It also found that in the ACT there were about 18,000 empty desks in government schools. In response to the review and a proposal developed by the respondent during May 2006, the government resolved to invest in schools by strengthening curriculum and to improve buildings and access to latest technology. To that end, on 6 June 2006 the Minister for Education announced a proposal in a document entitled ‘Towards 2020 – Renewing Our Schools’ (“the 2020 proposal”). The 2020 proposal was said to be designed to give ACT students access to a diverse range of high quality public schools. As part of the 2020 proposal the Minister announced that funds were to be provided for the establishment of two new schools and a feasibility study for a third, and that some schools would be closed or amalgamated to better meet the demographic, social and educational needs of the ACT community. The 2020 proposal also provided information regarding the amount of funding that would be made available for school infrastructure upgrades and maintenance.

3. Although the 2020 proposal identified a number of schools which would close at specified times, it stated that the government was keen to know the views of the community and that a process of consultation had begun and that, as part of that process, community meetings would be held over a 6 month period. It also provided contact information for the provision to the government of feedback in relation to the 2020 proposal.

4. The process of consultation that was announced was designed to meet the requirements of section 20 of the Education Act 2004. It requires that, before closing or amalgamating a government school, the Minister must:

(a)have regard to the educational, financial and social impact on students at the school, the students’ families and the general school community; and
(b)ensure that school communities affected by the closure or amalgamation have been adequately consulted during a period of at least 6 months.

5. On 13 December 2006 a decision was made by the government to close a number of schools that had been referred to in the 2020 proposal.

6. The applications for review of decision in these appeals arise from the refusal of the respondent to provide access to all of the documents requested by the applicants under the Freedom of Information Act 1989 (“the FOI Act”) in relation to the 2020 proposal.

7. The applicant in matter AT06/63, Mrs Vicki Dunne, MLA, is the Shadow Minister for Education and Training. In a statement of facts and contentions lodged with the Tribunal she stated that the government’s proposals had been a source of immense public interest, concern and scrutiny with the potential to affect thousands of families in the ACT and surrounding New South Wales and to determine the future and quality of public education in the ACT.

8. Ms Barden, the applicant in matters AT06/66 and AT07/03, is the mother of three children, two of whom were enrolled to attend Mt Neighbour Primary School in 2007. On 13 June 2006 she received a copy of an undated letter from the Minister advising that the school would close at the end of 2006. Additional information about the proposed closure of the school became available to her after the commencement of the consultation period but she claimed that the reason for the selection of the school for closure was never explained and that the lack of information from the government put her and other parents of children at the school at a disadvantage in providing a meaningful submission to the Minister. She believed that other schools were similarly disadvantaged.

The FOI requests

9. On 21 June 2006 Mrs Dunne made a request to the Department of Education and Training (“the department”) under the FOI Act for:

a copy of all material prepared by your department or received by your department, that related to, or promoted, the Government’s decision to close 39 schools and to amalgamate other schools, as outlined in the document Towards 2020, and listed on (Attachment 1) and (Attachment 2).

10. Attachment 1, referred to in the request, contained a schedule of certain specified schools and the date of their closure. Attachment 2 contained details of schools proposed to be amalgamated.

11. In response, Mrs Dunne was advised that her request had been interpreted:

to include all material prepared by this Department or received by this Department that relates to or prompted the Government’s proposals to close or amalgamate schools as outlined in the Towards 2020 document.

Mrs Dunne indicated that this interpretation was acceptable to her. She also agreed to the documents being released in stages and beyond the time prescribed by section 18 of the FOI Act.

12. At various stages following the request, documents were released to Mrs Dunne and exemption from access claimed in respect of others. Claims for exemption in respect of some of the documents were upheld on internal review of the response by the department to Mrs Dunne’s request.

13. Mrs Dunne’s appeal to the Tribunal was made in respect of the claims for exemption upheld on internal review and the failure to produce other documents claimed by her to be within the terms of her request.

14. On 30 June 2006 Ms Barden made a request to the department under the FOI Act in the following terms:

I am writing to request a copy of all information relating to the proposed closure of Mount Neighbour Primary School and Mount Neighbour Pre-School. I request all “documents” as that term is defined in the Legislation Act 2001. I also seek the property boxes of any electronic documents.
My request includes all information, including draft documents relating to the proposed closures, that sets out the reasoning behind the proposal.

15. Following internal review of a decision made in respect of her request, Ms Barden was given access to some documents and exemption was confirmed in respect of others.

16. On 14 December Ms Barden made a further request under the FOI Act for access to documents in the following terms:

I am writing to request a copy of all information (including draft documents) relating to the decision of the Minister for Education and Training announced on 13 December 2006 under Towards 2020 to:
·close 11 preschools, 12 primary schools and one high school;
·retain 12 preschools, 4 primary schools and one college that were originally proposed for closure under Towards 2020.
·propose a new P-10 school on the site of Kambah High School.

My request includes, but is not limited to, the following information:
·all non-confidential submissions made by any person in response to Towards 2020 (I understand that the Government intended to make these publicly available but they do not seem to be publicly available at this time);

·any document that sets out Departmental and/or Ministerial consideration of submissions received; and

·any document that sets out reasons for the decision and any supporting documents/information.

Information provided by the Department in response to my previous FOI request for 30 June 2006 is not sought on this occasion. However, please consider this request to include all information that the departmental delegate on internal review considered irrelevant but which was listed in the schedule of document [sic] accompanying the primary decision.
Should there be any doubt as to what is considered relevant to my request, please contact me on the numbers above and I will provide clarification.

17. In response to the request the applicant was provided with some documents and exemptions were claimed to apply to others. Following internal review of the decision and further consideration of the matter, additional documents were provided to Ms Barden.

18. Ms Barden’s appeals were made in respect of the claims for exemption upheld on internal review of the response to her request.

The conclusive certificates

19. After the appeals had been lodged in each matter and prior to the commencement of the hearing, a certificate dated 19 February 2007 was issued by the Acting Chief Executive of the Chief Minister’s Department under section 35(3) of the FOI Act. The certificate stated:

I, Pam Davoren, Acting Chief Executive, Chief Minister’s Department, certify under subsection 35(3) of the Freedom of Information Act 1989 (the Act) that the documents set out in the attached schedule are documents of the kind referred to in the paragraph of section 35(1) of the Act indicated in the column headed “Exemption claimed” and that they are exempt or partially exempt documents under subsections 35(1)(c) and (d) of the Act.

20. On 20 February 2007 the Chief Executive of the department issued a certificate under section 36(3) of the FOI Act which stated:

Under section 36(3) of the Freedom of Information Act 1989 (“the FOI Act”), I, Michele Bruniges, Delegate of the Minister pursuant to section 36(8) of the FOI Act, revoke my previous Certificate granted on 9^th February 2007 and certify that the disclosure of the documents described in the Schedule to this Certificate (“the Schedule”) would be contrary to the public interest upon the grounds, stated in paragraph (e) of the entry in the Schedule relating to each document.
References in the Schedule to document numbers and pages are references to the same document numbers and pages appearing in the Schedule of Documents filed by the Respondent in proceeding number AT06/63, Dunne and ACT Department of Education and Training, currently before the Australian Capital Territory Administrative Appeals Tribunal.

21. On 20 April 2007 the Acting Chief Executive of the Chief Minister’s Department issued a further certificate under section 35(3) of the FOI Act which stated:

I, Pam Davoren, Acting Chief Executive, Chief Minister’s Department, certify under subsection 35(3) of the Freedom of Information Act 1989 (the Act) that the documents set out in the attached schedule are documents of the kind referred to in the paragraph of section 35(1) of the Act indicated in the column headed “Exemption claimed” and that they are exempt or partially exempt documents under subsections 35(1)(c) of the Act.

22. On 10 August 2007 the Acting Chief Executive of the Department of Education and Training and delegate of the Minister for Education and Training, Ms J Davy, issued a further certificate pursuant to section 36(8) of the FOI Act which stated:

Under section 36(3) of the Freedom of Information Act 1989 (“the FOI Act”), I, Janet Davy, Acting Chief Executive of the Department of Education and Training and Delegate of the Minister for Education and Training, pursuant to section 36(8) of the Freedom of Information Act 1989, certify that the disclosure of the documents described in the Schedule to this Certificate would be contrary to the public interest upon the grounds, stated in paragraph (e) of the entry in the Schedule relating to each document.
References in the Schedule to document numbers and pages are references to the same document numbers and pages appearing in the Schedule of Documents filed by the Respondent in proceeding number AT06/63, Dunne and ACT Department of Education and Training currently before the Australian Capital Territory Administrative Appeals Tribunal, except that the reference to ‘document 5’ is a reference to document 5 in Schedule “C” to the Respondent’s Statement of reasons dated 7 February 2007 and appearing at page 14 of the “T” documents filed by the Respondent in Proceeding Number AT07/3, Barden and ACT Department of Education and Training.

23. The schedules to the conclusive certificates cover all of the documents in respect of which claims for exemption were upheld on internal review except for documents which are referred to in these reasons for decision under the heading “ACT Assessment Program” (“ACTAP”). In respect of those documents a claim for exemption is made under section 40(1)(d) of the FOI Act.

24. The section 35 certificates and attached schedules were marked Exhibits 2 and 3 and the schedules set out the grounds upon which the exemption was claimed in respect of each document. The section 36 certificates and attached schedules were marked Exhibits 1 and 21 and the schedules set out the grounds of public interest claimed in respect of each document.

25. Exemption was also claimed in respect of certain documents covered by the requests under section 40(1)(d) of the FOI Act. These documents and section 40(1)(d) are addressed under the heading “ACT Assessment Program” below.

The legislation

26. Sections 35 and 36 of the FOI Act pursuant to which the claims for exemption were made and the conclusive certificates were issued provide as follows:

35 Executive documents

(1) A document is an exempt document if it is—
(a)a document that has been submitted to the Executive for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Executive; or
(b)an official record of the Executive; or
(c)a document that is a copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Executive, other than a document by which a decision of the Executive was officially published.

(2) This section does not apply to a document (a relevant document)—
(a) that is referred to in subsection (1) (a); or
(b)that is referred to in subsection (1) (b) or (c) and is a copy of, or of part of, or contains an extract from, a document that is referred to in subsection (1) (a);

to the extent that the relevant document contains purely factual material unless—
(c) the disclosure under this Act of that document would involve
the disclosure of any deliberation or decision of the Executive; and
(d)the fact of that deliberation or decision has not been officially published.

(3)For this Act, a certificate signed by the chief executive who has control of the administrative unit to which responsibility for the coordination of government administration is allocated under the Public Sector Management Act 1994, section 14 certifying that a document is of a kind referred to in a paragraph of subsection (1) establishes conclusively, subject to part 7, that it is an exempt document of that kind.
(4)Where a document is a document referred to in subsection (1) (c) or (d) only because of matter contained in a particular part of the document, a certificate under subsection (3) in respect of the document shall identify that part of the document as containing that matter.
(5)For this Act, a certificate signed by the chief executive who has control of the administrative unit to which responsibility for the coordination of government administration is allocated under the Public Sector Management Act 1994, section 14 certifying that a document as described in a request would, if it existed, be of a kind referred to in a paragraph of subsection (1) establishes conclusively, subject to part 7, that, if such a document exists, it is an exempt document of that kind.
(6)Where a certificate under subsection (5) has been signed in respect of a document as described in a request, the decision on the request may be a decision that access to a document as described in the request is refused on the ground that, if such a document existed, it would be an exempt document referred to in the paragraph of subsection (1) that is specified in the certificate.
(7)A reference in this section to the Executive includes a reference to a committee of the Executive.

36 Internal working documents

(1)Subject to this section, a document is an exempt document if its disclosure 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 Territory; and

(b) would be contrary to the public interest.
(2)In the case of a document of the kind referred to in section 8 (1), the matter referred to in subsection (1) (a) of this section does not include matter that is used or to be used for the purpose of the making of decisions or recommendations referred to in section 8 (1).
(3)Where a Minister is satisfied, in relation to a document to which subsection (1) (a) applies, that the disclosure of the document would be contrary to the public interest, the Minister may sign a certificate to that effect, specifying the ground of public interest in relation to which the certificate is given and, subject to part 7, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.
(4)Where a Minister is satisfied as mentioned in subsection (3) only because of matter contained in a particular part of a document, a certificate under that subsection in respect of the document shall identify that part of the document as containing that matter.
(5)This section does not apply to a document only because 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; or
(b)reports of a prescribed body or organisation established within an agency; or
(c)the record of, or a formal statement of the reasons for, a final decision given in the exercise of a power or of an adjudicative function.

(7)Where a decision is made under part 3 that an applicant is not entitled to access to a document because of this section, the notice under section 25 shall state the ground of public interest on which the decision is based.
(8)The responsible Minister of an agency may, by signed instrument, delegate to the principal officer of the agency the Minister’s powers under this section in respect of documents of the agency.

27. In circumstances where a conclusive certificate has been issued under section 35 or 36 of the FOI Act, the Tribunal’s function is prescribed by section 62(3) to (5) as follows:

(3)Where a certificate under section 34, section 35, section 36 or section 37A is in force in respect of a document, the powers of the tribunal do not extend to reviewing the decision to give the certificate but the tribunal, constituted in accordance with section 64, may determine such question in relation to that certificate as is provided for in whichever of subsections (4), (5) and (6) applies to that certificate.
(4)Where an application is made to the tribunal for the review of a decision refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document under section 34, section 35 or section 37A and in respect of which a certificate (other than a certificate of a kind referred to in subsection (6)) is in force under that section, the tribunal shall, if the applicant so requests, determine the question whether reasonable grounds exist for that claim.
(5)Where an application is made to the tribunal for the review of a decision refusing to grant access to a document in accordance with a request, being a document that is claimed to be an exempt document under section 36 and in respect of which a certificate is in force under that section, the tribunal shall, if it is satisfied that section 36 (1) (a) applies to the document and if the applicant so requests, determine the question whether reasonable grounds exist for the claim that the disclosure of the document would be contrary to the public interest.

The hearing

28. At the hearing of the appeals, which the Tribunal directed be heard together, Mrs Dunne was represented by Mr T Brennan, of counsel. Ms Barden represented herself. The respondent was represented by Mr D Mossop, of counsel. Evidence was given on behalf of the respondent by Mr C Curry and Dr P Dorling. Evidence was given by Ms Barden on her own behalf. A number of documents were tendered in evidence on behalf of the parties and the Tribunal had before it the documents lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 (“the T documents”). The Tribunal was also provided with copies of the documents in respect of which the claims for exemption were made, however, those documents were not made available to the applicants.

29. Mr Curry is the Executive Director of the department. His evidence was contained in written statements dated 12 January 2007 and 27 February 2007, parts of which were admitted in evidence at the hearing, and in oral evidence given at the hearing. He gave evidence in relation to the claim for exemption made in respect of the ACT Assessment Program documents. That evidence is referred to below. He also gave evidence in relation to matters that were the subject of the conclusive certificates. As required by section 65(2) of the FOI Act, that part of the proceeding during which Mr Curry gave that latter evidence was held in private and a direction was given by the Tribunal, as required by section 65(3)(b) of the FOI Act prohibiting the publication of that evidence, the contents of documents lodged with or received by the Tribunal and submissions made to the Tribunal whilst that evidence was given.

30. Dr Dorling is a senior manager, Cabinet and Executive Support in the Cabinet Office and currently the acting Director of the Cabinet Office. His evidence was contained in a part of a written statement dated 20 February 2007 and in an affidavit dated 20 April 2007 which were admitted in evidence at the hearing and in oral evidence given at the hearing. He gave evidence in relation to matters that were the subject of the conclusive certificates. His evidence was also given in private and a direction, as required by section 65(3)(b) of the FOI Act, was given in relation to that evidence.

31. For the avoidance of doubt and at the request of the parties, the directions given pursuant to section 65(3)(b) in respect of Mr Curry’s evidence and Dr Dorling’s evidence were varied to exclude from the direction the provision of a transcript of that part of the proceedings to the parties or their legal representatives.

32. The statements of Mr Curry and the statement and affidavit of Dr Dorling that were relied upon by the respondent were provided to Ms Barden and Mrs Dunne’s representative prior to the hearing. In order to avoid disclosure of the contents of the documents that were the subject of the section 35 conclusive certificate, there was deleted from Mr Curry’s statement words specified in a direction made by the Tribunal on 2 April 2007 pursuant to section 65(4) of the FOI Act. The direction also restricted disclosure of his statement to all persons except for the respondent and its legal advisers, the Tribunal as constituted for the purposes of hearing the appeal and members of the staff of the Tribunal in the performance of their duties. Mr Brennan and Ms Barden were permitted to cross-examine both Mr Curry and Dr Dorling but not as to the contents of the documents the subject of the section 35 and section 36 conclusive certificates.

33. Ms Barden gave evidence on her own behalf. Her evidence was contained in a written statement dated 29 January 2007 and in part of a written statement dated 7 May 2007 which were admitted in evidence at the hearing. Ms Barden attached to her statement dated 29 January 2007 copies of documents which contained information made publicly available by the government about the 2020 proposal and the functional review and a request that she had made under the Administrative Decisions (Judicial Review) Act 1989 for information regarding the proposed closure of the Mt Neighbour Primary and Pre-schools and an indirect response to that request. She attached to her statement dated 7 May 2007 a brochure issued by the department which set out the outcomes of the 2020 proposal, information on the department’s website regarding factors taken into account in deciding whether to close certain schools and a response to her request for a statement of reasons under the Administrative Decisions (Judicial Review) Act.

34. Having regard to the directions given by the Tribunal pursuant to section 65(3)(b) of the FOI Act in relation to the evidence of Dr Dorling and Mr Curry and the requirement to not disclose the content of the documents for which exemption was claimed under section 35 and section 36, the Tribunal has been required to ensure that that evidence and the contents of the documents are not referred to in these reasons for decision.

35. The Tribunal notes that the Commonwealth AAT followed a different approach in its recent decision in McKinnon and Secretary, Department of Prime Minister & Cabinet [2007] AATA 1969 (19 November 2007) (“McKinnon and PM&C”) where it published a decision with extracts withheld and another fuller version with restricted release. The Tribunal can find no legislative authority to follow the same course. It notes that the Commonwealth Tribunal did not follow this approach in the first McKinnon decision (McKinnon and Secretary, Department of Treasury [2004] AATA 1364 (21 December 2004)) that was subsequently appealed to the Full Federal Court and the High Court. There appears to be no specific authority for the recent approach and, in these circumstances, this Tribunal follows the traditional approach.

SECTION 35 DOCUMENTS

Interpretation

36. Submissions were received from all parties on the interpretation of section 35 of the FOI Act. Re Toomer and Department of Agriculture, Fisheries and Forestry & Ors (2004) 76 ALD 645 in particular was cited as authority for the interpretation of the section. In Toomer, Deputy President Forgie dealt comprehensively with the interpretation of the equivalent section (section 34) of the Freedom of Information Act 1982 (Cth) (“the Commonwealth FOI Act”), having analysed earlier authorities. Among other things Toomer and the other authorities state that:

because of the importance of the place of Cabinet in the Executive government of Australia, disclosure of Cabinet documents does not need to cause identifiable harm for such documents to be exempt; the Tribunal has no discretion to give access to them;
each paragraph in the section is a separate exemption provision and must be given its full meaning even if it extends to documents that may be exempt under another provision either within that section or elsewhere in the statute;
the principles to be applied in relation to Cabinet deliberations or decisions in the context of public interest immunity and the equivalent provision of section 35(1)(d) of the FOI Act are the same. The documents must be examined to determine on the whole of the evidence, of which the documents themselves are only part, whether they do in fact disclose deliberations or decisions of Cabinet. It is not determinative whether they were prepared before or after the meeting of Cabinet at which they were discussed;
deliberations of Cabinet are its thinking processes. A document would disclose deliberations of Cabinet if it discloses that the Cabinet has considered or discussed a matter, exchanged information about a matter or discussed strategies;
deliberations involve not only collective discussion but collective acquisition and exchange of facts preliminary to ultimate decision;
material will disclose deliberations if it can be married with other information available in the public arena to reveal a decision (matrix analysis);
internal departmental briefings prepared for a Minister prior to a submission being made to Cabinet would disclose a decision made by Cabinet, in the sense of conclusions on a course of strategy, whether final or concerning how to proceed further;
to be officially published a decision must have two qualities: it must be published by a person one of whose duties it is to do so, and it must be made generally known.

37. Mr Brennan also made submissions in relation to section 35 dealing with two factors particular to the ACT which may impinge on interpretation of the FOI Act. They are, firstly, the Human Rights Act 2004 (“the Human Rights Act”) and, secondly, the Cabinet/Executive structure. We now deal with these two particular matters.

Application of the Human Rights Act

38. It was submitted by Mr Brennan that a human right to access to government information was conferred by section 16(2) of the Human Rights Act which states:

Everyone has the right to freedom of expression. That right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.

39. Reliance was placed on Claude Reyes et al v. Chile, a judgment of the Inter-American Court of Human Rights (19 September 2006), in support of the proposition that freedom of expression encompasses the right to access information from the State. That case dealt with a right expressed in the same terms as found in section 16 of the Human Rights Act, reflecting the wording of the International Convention on Civil and Political Rights.

40. The right of persons to access information was diminished, it was submitted, by the wording of section 35(1) which denies access to documents in the classes that are covered by it. Accordingly, it was submitted, section 35 should be interpreted narrowly.

41. Attention was also drawn to Runa Begum v London Borough of Tower Hamlets [2003] 2 AC 430 in which the content of the right to a fair trial in the context of public law decision-making was considered. The right to a fair trial is conferred by section 21 of the Human Rights Act. Section 21 provides:

Everyone has the right to have criminal charges, and rights and obligations recognized by law, decided by a competent and impartial court or tribunal after a fair and public hearing.

(2) ….

(3) ….

42. It was submitted by Mr Brennan that the right conferred by section 21 pointed to the necessity for full review on facts and law and value judgments to be available. The Tribunal, he submitted, should strictly construe the provisions conferring power to issue the conclusive certificates in so far as they limit the Tribunal’s power to undertake full merits review.

43. The Human Rights Act includes a provision dealing with interpretation. Section 30 states:

(1)In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.

(2) Subsection (1) is subject to the Legislation Act section 139.
Note Legislation Act, s 139 requires the interpretation that would best achieve the purpose of a law to be preferred to any other interpretation (the purposive test).
(3)       In this section:
"working out the meaning of a Territory law" means—
(a)       resolving an ambiguous or obscure provision of the law; or
(b)       confirming or displacing the apparent meaning of the law; or
(c)finding the meaning of the law when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the law in any other case.

44. The only possible application of section 30(3) of the Human Rights Act that was identified was a suggested ambiguity in section 35(1)(a) of the FOI Act. Reference was made to conflicting authorities as to whether the requirement that the relevant document be “brought into existence for the purpose of submission for consideration by the Executive” applies both to documents submitted and documents proposed to be submitted to the Executive (see, for example, Re Porter and Department of Community Services and Health (1988) 403 at 407; cf. Toomer at 670-671). That issue is not required to be resolved by the Tribunal in the circumstances of this case as the claim made by the certificate issued under section 35 is based upon the application of section 35(1)(d) or, in those cases where the claim is made under section 35(1)(c) in relation to copies of documents, the original documents were brought into existence for the purpose of submission for consideration by the Executive. Accordingly, the suggested ambiguity does not require to be resolved for the purpose of arriving at a decision in this case.

45. Reference was also made in the submission to section 28 of the Human Rights Act. It provides:

Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

46. The legally enforceable right to obtain access to documents under the FOI Act is expressed to be subject to limits. In this regard, section 10 of the FOI Act provides:

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to –

(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.

47. The right to access to documents under the FOI Act being expressed to be subject to the Act, is subject to the exemptions specified in it and the proceedings specified in relation to a determination of the exercise of those rights.

48. Section 32 of the Human Rights Act confers on the Supreme Court, in proceedings before it, a power to declare that a Territory law is not consistent with a human right (although such a declaration does not affect the validity, operation or enforcement of the law or the rights or obligations of anyone). The Tribunal is not conferred with a similar power. It is not part of the Tribunal’s function to determine whether the limits to the right to access to documents under the FOI Act are reasonable and can be demonstrably justified in a free and democratic society.

49. We are required by section 30 of the Human Rights Act to prefer an interpretation of the provisions of the FOI Act that would best achieve the purposes of the Human Rights Act. The purpose of section 35 of the FOI Act, having regard to section 2(1)(b) of the FOI Act, is to limit the general right of access of citizens to information in documentary form in the possession of Ministers and agencies by an exemption necessary for the protection of an essential public interest.

50. We find no scope for the application of section 16(2) or section 21 of the Human Rights Act in working out the meaning of the FOI Act as it applies in this case.

The identity of the Executive

51. It was submitted that the use of the terms “executive” and “cabinet”, apparently interchangeably throughout some of the evidence given on behalf of the respondent, indicated that the decision-makers had not sufficiently turned their minds to the differences between the two in the Westminster system of government for the purposes of section 35 of the FOI Act. Thus it was suggested that documents that may not properly be exempt as Executive documents were claimed to be exempt because they were Cabinet documents.

52. To assist in resolving this issue, it is instructive to consider the origin of the FOI Act. It was originally a Commonwealth ordinance – the Freedom of Information Ordinance 1989 (No 46) (Cth) - which was converted into an ACT enactment upon self-government (see section 34A Australian Capital Territory (Self-Government) Act 1988 (“the Self-Government Act”). It effectively mirrors the Commonwealth FOI Act. Relevantly, however, the Commonwealth FOI Act contains both section 34, headed “Cabinet documents” and section 35, headed “Executive Council documents”. The FOI Act has only one equivalent section, namely section 35, headed “Executive documents”.

53. The Self-Government Act, at Part 5, establishes the ACT Executive, which is comprised of the Chief Minister and other Ministers. Education is included in Schedule 4 to the Self-Government Act as a matter concerning which the Executive has power to govern the Territory.

54. Pursuant to section 43 of the Self-Government Act the powers of the Executive may be allocated to a Minister by the Chief Minister. Relevantly to the circumstances of this case, the powers of the Executive to govern the Territory in relation to education has been allocated to the Minister for Education. Section 43 makes it clear that in administering the Education Act, the Minister for Education does so on behalf of the Executive.

55. A handbook entitled ‘Directions on Cabinet Procedure: ACT Government Cabinet Handbook’, published by the Cabinet Office, Chief Minister’s Department, dated January 2007 (the “Cabinet Handbook”) was submitted in evidence on behalf of the applicant, Mrs Dunne. Chapter 1 of the Cabinet Handbook deals with the ACT Executive, Cabinet Conventions, Collective Responsibility, Cabinet Confidentiality and Ministerial Responsibility for Proposals (and the pre- and post-election period). The respondent drew attention to paragraph 1.2.1 which states:

The ACT Executive determines its policies through a Cabinet system of decision-making i.e. through a system of regular meetings of all Ministers, chaired by the Chief Minister. Cabinet is the ultimate arbiter of all Government policy. It operates under the conventions and principles of the Westminster system of Government.

56. We accept that the Minister has particular responsibilities under the Education Act in relation to the matters in this case, but we do not believe that the word “Executive” can be read down to mean “Minister for Education”. It is in our view clear that, in the ACT, the Cabinet is the Executive for the purposes of section 35 of the FOI Act. We do not believe that section 35 can be sensibly interpreted in any other way.

Purely factual material

57. Section 35(2) of the FOI Act operates to exclude the operation of the section, including the operation of section 35(3), to the extent that a document contains purely factual material, unless the disclosure would reveal deliberations or decisions of the Executive (see section 35(2)(c)). Section 35(2) is not expressed to apply to documents exempt pursuant to section 35(1)(d). Accordingly, where a document is considered for exemption under section 35(1)(c) (in this case none of the documents are claimed to be exempt under either section 35(1)(a) or 35(1)(b)), it is also necessary to consider whether it contains purely factual material.

58. It was submitted on behalf of both of the applicants that the respondent had failed to establish the facts necessary for it to be concluded that section 35(2) does not apply and that there was some evidence, in particular that of Mr Curry in relation to particular schools, that suggested that some documents fell within section 35(2). The respondent submitted that none of the material claimed to be exempt under section 35(1)(c) was purely factual material.

59. In arriving at a conclusion in relation to this issue we have taken account of the following observations made by the Federal Court of Australia in Harris v Australian Broadcasting Corporation & Ors (1984) 5 ALD 564 at 568 to which we were referred by Ms Barden:

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.

60. We also note, however, that factual material which is inextricably intertwined with deliberative material is not purely factual (see Howard and Treasurer of the Commonwealth (1985) 7 ALD 626 at 632).

61. An examination of the material before the Tribunal showed that much of it has been released and we accept the submission of the respondent in respect of almost all of the documents. Where we have found that material is purely factual in a document otherwise exempt under section 35(1)(c), we have identified it under the heading “Consideration of documents” below.

The conclusive certificates

62. In circumstances where a certificate under section 35(3) is in force in respect of documents, the Tribunal has the limited function prescribed for it by section 62(4) of the FOI Act (see also section 62(3) FOI Act). Mr Brennan submitted that the Tribunal could not be satisfied that the conclusive certificates issued by the acting Chief Executive of the Chief Minister’s Department were in force because they failed to comply with the requirements as to the content of a certificate under section 35(3). In particular, it was submitted that the certificate was required to describe or identify the matter contained in each document to which the certificate related rather than purport to operate by reference to the legal conclusion that the document’s nature and quality lead it to falling within section 35(1).

63. We do not accept this submission. The case of Federal Commissioner of Taxation v Swiss Aluminium (1986) 66 ALR 159, which was relied upon in support of the submission relevantly deals with a different issue, that is, the kind of information necessary to be specified in legislation to attract the exemption is section 38 of the FOI Act. The form of the certificates in question are expressed in the specific terms authorized by section 35(3) and, in our view, meets the requirements for the content of a certificate issued under that section.

64. The question to be answered by the primary decision-maker and upon internal review in relation to each document for which exemption is considered under section 35 is: does the document fall into one or more of the categories enumerated in section 35(1)? Having regard to the conclusion which we have reached that the certificates under section 35(3) are in force, for the Tribunal, however, the effect of section 62(4) is to alter the question. The question for the Tribunal becomes: do reasonable grounds exist for the claim that the document falls into one or more of the categories enumerated in section 35(1), or as put by Deputy President Todd in Porter and Department of Community Services and Health (1988) 14 ALD 403, “… the Tribunal simply asks whether such grounds ‘exist’ and whether they are ‘reasonable’. To be ‘reasonable’ it is requisite only that they be not fanciful, imaginary or contrived, but rather that they be reasonable; that is to say based on reason, namely agreeable to reason, not irrational, absurd or ridiculous ……”. Specifically the question is, having regard to subsection 35(3): do reasonable grounds exist for the claim that the document is of a kind identified in the conclusive certificate?.

65. In McKinnon Downes J refined the question in relation to reasonableness as follows:

To say that reasonable grounds must be grounds based on reason does not resolve one critical issue relating to the test. The concept of reasonable grounds conveys more than the idea of reason. Were that not so, the only task for the tribunal would be to test the logic of the claim and not to examine its basis. What is required is reasonable grounds for the claim. Finding the existence of grounds is an essential aspect of the test. Determining the reasonableness of grounds requires more than reason or logic. It requires the examination of the foundation for the claim.

66. Some of the documents in respect of which a conclusive certificate was issued under section 35(3) of the FOI Act were also the subject of a conclusive certificate under section 36(3) of the FOI Act. There being a requirement to consider the claim in respect of each conclusive certificate, we have examined those claims separately.

67. We note also that the role of the Tribunal in dealing with an appeal that involves a certificate issued under section 35(3) is different from that which arises in the case of an appeal which involves a certificate issued under section 36(3). The task of the Tribunal in the latter case was the subject of consideration by the High Court of Australia in McKinnon to which our reasons for decision make reference below. The task of the Tribunal in the former case is to determine whether reasonable grounds exist for the claim that the documents specified in the schedule to the conclusive certificate are exempt on one of the grounds referred to in section 35.

68. Many of the documents for which exemption is claimed rely upon the ground specified in section 35(1)(d) of the FOI Act. The exemption there specified is expressed not to apply to a document by which a decision of the Executive was officially published. We have accepted the submission by Mr Mossop based on the evidence that no such publication has occurred in respect of relevant decisions and our examination of the material before us does not suggest otherwise. In arriving at a conclusion on this issue, we have also had regard to the evidence of Ms Barden (see paragraph 33 above). There being no disagreement as to the meaning of the words “deliberation” or “decision” the question to be resolved by the Tribunal in respect of the documents referred to in the schedule to the conclusive certificate is, for the most part therefore, a narrow issue of fact.

The evidence

69. In considering each document subject to the section 35 conclusive certificate, we have had the benefit of examining the documents. We have also had regard to the evidence of Dr Dorling and Mr Curry who gave evidence for the respondent in relation to them. No contrary evidence was given on behalf of the applicants. Both witnesses were cross-examined extensively. Given their respective positions as a senior officer of the department and as a then senior manager in the Cabinet office, we consider that we should give considerable weight to their evidence.

70. Mr Curry’s evidence dealt with the origin of some of the documents within the department and the purpose for which they were created. Dr Dorling’s evidence went to the manner in which the documents were associated with the Executive process. Mr Brennan submitted that the process undertaken by Dr Dorling was deficient. We accept Mr Brennan’s submission that the mere fact that material in a document relates to matter that was before the Cabinet or on its agenda is not sufficient to attract the application of section 35(1)(d). We also accept Mr Brennan’s submission that to be exempt under section 35(1)(c), a copy or part of or extract from, an Executive document must succeed, not precede the document in order to be a copy, part or extract (see Re Aldred and Department of Foreign Affairs (1990) 2 ALD 264 at 265).

71. It was pointed out that the reasons given for the exemption in some instances support a different limb of section 35(1) from that cited as the exemption claimed in the schedule to the conclusive certificate. We note that section 35(3) authorises the signing of a certificate which certifies that “a document is of a kind referred to in a paragraph of subsection (35(1))”. The acting Chief Executive's certificates are expressed as a certification that the documents in the schedule “are documents of the kind referred to in the paragraph of section 35(1) of the Act indicated in the column of the schedule headed “Exemption claimed” ......”. We have therefore sought to determine in the case of each document whether reasonable grounds exist for the claim made under the paragraph of section 35(1) of the Act indicated in the column headed "Exemption claimed" in the schedules attached to the conclusive certificate. Because of the requirement of section 65(3)(b) the Tribunal is not able in these reasons for decision to set out any of their evidence or the contents of the documents in question.

Consideration of documents

72. We now turn to a consideration of each document to which the section 35 conclusive certificate and its schedule relate. All of the documents arise from the 2020 proposals, apart from Documents 105, 121, 122, 131, 141, 144, 145, 149, 150, 152, 153, and 155 which are concerned with the Functional Review. In relation to the documents, where we use the term “conclusive certificate” we mean the conclusive certificate dated 19 February 2006 unless otherwise stated. In those cases where the claim for exemption is based upon section 35(1)(d), unless otherwise stated, we have found that there are reasonable grounds for the claim that disclosure of the document would disclose deliberations of the Executive.

Document 1

73. This document consists of 19 pages of hand-written notes taken by Ms Joanne Howard, Director, Schools Central, in the department. Six of those pages – 1117, 1121, 1127, 1139, 1142 and 1148 - and the fifth line from page 1119 are claimed to be exempt documents under section 35(1)(d). We have examined those seven pages and considered the evidence of Dr Dorling and also Mr Curry’s more specific descriptions of the pages in question. We find that the documents would involve the disclosure of deliberations of Cabinet in relation to the 2020 proposal and that reasonable grounds exist for the claim that the parts of the document identified in the conclusive certificate are exempt under section 35(1)(d).

Document 23

74. This document consists of two pages of hand-written notes of Mr Geoffery Rutledge, a Senior Policy Advisor in the department. Parts of those pages are claimed to be exempt documents under section 35(1)(d). We have examined them and considered the evidence of Dr Dorling. We have also considered the evidence of Mr Curry as to their content. We find that reasonable grounds exist for the claim that the parts of Document 23 identified in the conclusive certificate are exempt under section 35(1)(d).

Document 24

75. This document is claimed by the conclusive certificate to be partially exempt pursuant to section 35(1)(c). We have examined the document and considered the evidence of Dr Dorling and Mr Curry. We find that the documents are copies of documents. We find that reasonable grounds exist for the claim that the parts of Document 24 identified in the conclusive certificate are exempt under section 35(1)(c).

Document 25

76. This document is a copy of a Cabinet submission considered by the Executive on 29 May 2006 and having been prepared for that purpose. Part of the document has already been released. We find that reasonable grounds exist for the claim that the parts of Document 25 identified in the conclusive certificate are exempt under section 35(1)(c). We also find that the parts of the document do not contain purely factual material.

Document 45

77. This document is a one-page e-mail between officers, claimed to be exempt by the conclusive certificate under section 35(1)(d). It post-dates the Executive meeting but refers to information before the Executive and considered by it on 29 May 2006. We have examined the document and considered the evidence of Dr Dorling and Mr Curry. We find that reasonable grounds exist for the claim that Document 45 is an exempt document of a kind referred to in section 35(1)(d).

Document 55

78. This document is a copy of a Power-point slide presentation viewed by the Executive as a computer presentation on Towards 2020 options, and tabled in a meeting of the Executive on 22 May 2006. It is in a three slides per page format. We accept that although the presentation was made by Mr Curry, it was done at the direction of the Minister and was formally a submission by the Minister to the Executive. We find that reasonable grounds exist for the claim that the parts of Document 55 identified in the conclusive certificate are exempt under sections 35(1)(c).We also find that the document does not contain purely factual material.

Document 56

79. This document is a copy of Document 55, but in a six-slide per page format. We find that reasonable grounds exist for the claim that the parts of Document 56 identified in the conclusive certificate are exempt under sections 35(1)(c). We also find that the document does not contain purely factual material.

Document 58

80. This document is another version of the Power-point presentation. This version is printed one side to a page with annotations. It was claimed to be exempt under section 35(1)(c) in the conclusive certificate. We find that reasonable grounds exist for the claim that the parts of Document 58 identified in the conclusive certificate are exempt under section 35(1)(c).

Document 67

81. This document is a later version of the Power-point presentation. That claim is supported by the evidence of Dr Dorling and Mr Curry. It is claimed to be exempt in part under section 35(1)(d) in the conclusive certificate. We find that reasonable grounds exist for the claim that the parts of Document 67 identified in the conclusive certificate are exempt under section 35(1) (d).

Document 68

82. This document comprises pages 2341-2346. The slides identified for exemption are substantially the same as those considered above. We find that reasonable grounds exist for the claim that parts of Document 68 identified in the conclusive certificate are exempt under section 35(1)(d).

Document 69

83. This document is another copy of the Power-point presentation to the Executive on 22 May 2006 and brought into existence for consideration by it. We find that reasonable grounds exist for the claim that the parts of Document 69 identified in the conclusive certificate are exempt under section 35(1)(c). We also find that the document does not contain purely factual material.

Document 70

84. This document is yet another copy of the Power-point presentation to the Executive on 22 May 2006. We find that reasonable grounds exist for the claim that the parts of Document 70 identified in the conclusive certificate are exempt under section 35(1)(c). We also find that the document does not contain purely factual material.

Document 71

85. This document is also a copy of the Power-point presentation. We find that reasonable grounds exist for the claim that the parts of Document 71 identified in the conclusive certificate are exempt under section 35(1)(c). We also find that the document does not contain purely factual material.

Document 74

86. This document is an eight page series of maps which were endorsed to facilitate consideration of a range of options in relation to the 2020 proposal. We have considered the evidence of Dr Dorling and that of Mr Curry about them. We find that reasonable grounds exist for the claim that the parts of Document 74 identified in the conclusive certificate are exempt under section 35(1)(c). We also find that the document does not include purely factual material.

Document 79

87. This document is an intra-departmental e-mail which summarises decisions taken at a meeting of the Executive. We find that reasonable grounds exist for the claim that the parts of Document 79 identified in the conclusive certificate are exempt under section 35(1)(d) as being a summary of decisions of the Executive.

Document 81

88. This is an 11 page document. The conclusive certificate describes it as a copy of part of a document submitted to the Executive – a schools review booklet. It has been partially released. Exemption is claimed for two pages, 2471 and 2481. We have considered the evidence of Dr Dorling and find that reasonable grounds exist for the claim that the parts of Document 81 identified in the conclusive certificate are exempt under section 35(1)(d).

Document 83

89. This document is also part of a schools review booklet and the claimed grounds for exemption are as for Document 81. We find that reasonable grounds exist for the claim that the two pages (2512 and 2522) of Document 83 identified in the conclusive certificate are exempt under section 35(1)(d).

Document 102

90. This document is described as a draft of a regional analysis. We have examined the document and considered the evidence of Dr Dorling and find that reasonable grounds exist for the claim the document is exempt under section 35(1)(d).

Document 103

91. This document includes the draft of a letter prepared the day after an Executive meeting and referring directly to Executive deliberations and decisions. We find that reasonable grounds exist for the claim that pages 2642 and 2643 of the document identified in the conclusive certificate are exempt under section 35(1)(d) as they would disclose both deliberations and decisions of the Executive.

Document 104

92. This document is copy of the Document 103. For the same reasons we find that reasonable grounds exist for the claim that pages 2645 and 2646 of the document identified in the conclusive certificate are exempt under section 35(1)(d).

Document 105

93. This document is a one-page internal e-mail from Mr Robert Donnelly, Director, Finance & Facilities, of the department. We have considered the evidence of both Dr Dorling and Mr Curry and have examined the document. While it is apparent that there may have been some overlap in the matters referred to in the document and matters that were the subject of consideration by the Executive, there is nothing in the document or the evidence relating to it that, in our view, would justify a finding that disclosure of the document would disclose deliberations of the Executive. Accordingly, we do not find that the respondent had discharged the onus of proving that reasonable grounds exist for the claim the document is of a kind referred to in section 35(1)(d).

Document 106

94. This document includes page 2649. It appears to be the text of a decision, or part of a decision, of Cabinet. Dr Dorling’s evidence confirms that it is. However, the exemption claimed in the conclusive certificate is under section 35(1)(c). The evidence does not address this claim. Were we not constrained by the certificate it would be open to us to make a decision pursuant to section 35(1)(d) but, because of the existence of the certificate, we cannot do so. We do not find that the respondent has discharged the onus of proving that reasonable grounds exist for the claim that the document is of a kind referred to in section 35(1)(c).

Document 108

95. This document is described as an e-mail containing text of a document created for consideration by Cabinet. Examination of the document confirms that it fits that description. We find that reasonable grounds exist for the claim that page 2668 is exempt under section 35(1)(c) and section 35(1)(d).

Document 109

96. This document is an e-mail between officers of the department. The conclusive certificate claims the document as exempt under section 35(1)(d). We have examined the document and the evidence of Dr Dorling and find that reasonable grounds exist for the claim that the document is of a kind referred to in section 35(1)(d).

Document 110

97. This document is a communication between officers of the department. At pages 2660 and 2661 it contains options for schools including some financial analysis. We have considered the evidence of Dr Dorling in relation to those pages and find that reasonable grounds exist for the claim that they are of a kind referred to in section 35(1)(c).

Document 112

98. This document contains at page 2669 a map which is described as having been considered by the Executive. We have considered the evidence and we find that reasonable grounds exist for the claim that page 2669 in the document is exempt under section 35(1)(d).

Document 113

99. This document is an e-mail of an extract from a Budget decision of the Executive taken on 8 May 2006. We find that reasonable grounds exist for the claim that Document 113 is exempt under sections 35(1)(c) and (d).

Document 114

100. This document consists of a number of pages of hand-written notes of Ms Carol Harris, Director, Schools South. Examination of the document confirms that page 2685, if released, would reveal deliberations of the Executive. We find that reasonable grounds exist for the claim that page 2685 in the document is of a kind referred to in section 35(1)(d).

Document 121

101. This document is a letter from the Minister of Education and Training to the Treasurer dated 15 May 2006 dealing with Budget issues. It directly quotes Cabinet decisions. We find that reasonable grounds exist for the claim that the document is of a kind referred to in section 35(1)(d).

Document 122

102. This document is a brief to the Minister dated 26 May 2006 from the (then) Deputy Chief Executive of the department regarding negotiations with Treasury. We have examined the document and considered the evidence of Dr Dorling and Mr Curry. We find that reasonable grounds exist for the claim that the document is of a kind referred section 35(1)(d).

Document 125

103. This document is included in the schedule to the conclusive certificate dated 20 April 2007. It is a copy of the Towards 2020: Renewing our Schools Power-point presentation to the Executive on 22 May 2006. It contains much of the same material as in the copies of the Power-point presentation considered earlier. We find that reasonable grounds exist for the claim that the parts of Document 125 identified in the schedule to the conclusive certificate dated 20 April 2007 are exempt under section 35(1)(c). We find that the parts of the document do not contain purely factual material.

Document 127

104. This document is a copy of pages 2642 and 2643 of Document 103. For the same reasons we find that reasonable grounds exist for the claim those pages of the document identified in the conclusive certificate are exempt under section 35(1)(d).

Document 128

105. This document is an internal e-mail, over one brief line only of which exemption is claimed. That line reveals the comment of one agency on the Cabinet submission. We have examined the document and considered Dr Dorling’s evidence in relation to it. Having regard to the nature of the material in the document, we are not persuaded that the respondent has discharged the onus of establishing that reasonable grounds exist for the claim that the document is of a kind referred to in section 35(1)(d).

Document 131

106. This document is a three-page briefing note from the (then) Deputy Chief Executive to the Chief Executive of the department dated 31 May 2006. Exemption is claimed for the whole of the document under section 35(1)(d). We have examined the document and considered the evidence of Dr Dorling in relation to it. Except in relation to those parts of the document entitled “Cabinet Submission on School Renewal” and “Risk Assessments”, we are not satisfied that the evidence is an accurate reflection of the material contained in the document. We conclude that reasonable grounds do not exist for the claim that the documents are exempt under section 35(1)(d) except in relation to those parts.

Document 137

107. This document is a spreadsheet of financial data. We have considered the evidence of Dr Dorling in relation to the document. We find that reasonable grounds exist for the claim that the document is of a kind referred to in section 35(1)(c).

Document 139

108. This document is described as a draft of the Towards 2020 booklet. We have considered the evidence of Dr Dorling and find that reasonable grounds exist for the claim that the parts of Document 139 identified in the conclusive certificate are exempt under section 35(1)(d).

Document 141

109. This is a six page document headed “Functional Review - Response to Revised Package of 23 March 2006”. It is undated and its author and addressee are not identified. It is written in personal terms and appears to be an analytical response to the Review team from within the department about the revised package. We have considered Dr Dorling’s evidence and consider that it lacks sufficiently specific information to connect it to Cabinet deliberations or decisions. Accordingly, we do not find that reasonable grounds exist for the claim that Document 141 is of a kind referred to in section 35(1)(d).

Document 144

110. This document is a brief from the department dated 6 April 2006 to the then Minister for Education and Training on the Strategic and Functional Review’s education package. It is really two copies of the brief plus a facsimile copy of the first page. The first page of the brief (pages 2922, 2923 and 2927) is introductory and contains nothing that would reveal the deliberations or decisions of the Executive if released. The remainder deals in detail with the Review’s recommendations and the department’s response to them and we find there are reasonable grounds for the claim that Document 144, excluding the three copies of the first page, is exempt under section 35(1)(d).

Document 145

111. This document is a letter plus a 12 page commentary on a version of the Review’s Education package from Dr Bruniges, Chief Executive of the department, to Mr Costello, Chair of the Strategic and Functional Review. It is dated 6 March 2006. We note that exemption is claimed under both subsections 35(1)(c) and 35(1)(d). The reason given in the conclusive certificate is that, if released, the document would disclose deliberations and decisions of the Executive. The covering letter (page 2940) could be released without revealing any deliberations or decisions of Cabinet. The remainder of Document 145 includes the text of some Review recommendations at that date and contains detailed commentary on them concerning education. We find there are reasonable grounds for the claim that Document 145, excluding page 2940, is exempt under section 35(1)(d).

Document 149

112. This document is a letter dated 2 May 2006 from Mr Mike Harris, Chief Executive, Chief Minister’s Department, to Dr Bruniges, Chief Executive of the department, concerning the final report of the Strategic and Functional Review, to which is attached a full list of Cabinet decisions and extracts from the Review report. We find that reasonable grounds exist for the claim that the attachment to the letter, being pages 2946 to 2978, is exempt under section 35(1)(c) and section 35(1)(d). The covering letter at pages 2979 and 2980 does not fit the description given by Dr Dorling in his evidence. We find that those pages of the document are not of the kind referred to in section 35(1)(c) and section 35(1)(d).

Document 150

113. This is a three-page undated document from the then General Manager of InTACT headed “InTACT response to DET Cabinet Paper on Merging IT Services”. Disclosing the InTACT response to the department’s submission would ineluctably disclose the content of that submission. We find that reasonable grounds exist for the claim that the document is of a kind referred to in section 35(1)(c) and 35(1)(d).

Document 152

114. This document is a letter to Mr Mike Harris from Dr Bruniges dated 15 May 2006, following Cabinet’s consideration of the Review recommendations but prior to the delivery of the Government’s Budget, to which are attached over 30 pages dealing in detail with decisions of the Executive of 8 May 2006. We find that reasonable grounds exist for the claim that the appendix to the letter, being the department’s Implementation Plan, and the third paragraph of the covering letter are of a kind referred to in section 35(1)(d). The first, second and fourth paragraphs of the covering letter (page 3021) are not of that kind and may be released without revealing deliberations or decisions of the Executive.

Document 153

115. This document is a letter dated 9 May 2006 from the Minister for Education and Training to Ms Kathy Korsch, acting Director of the Canberra Institute of Technology (“CIT”). It makes reference to the Strategic and Functional Review as it affected the operations of the CIT. Attached to the letter is a page of Review recommendations agreed by the Executive. We find that there are reasonable grounds for the claim the attached document (page 3022) and the second paragraph of the letter are exempt under sections 35(1)(c) and 35(1)(d). The first, third and fourth paragraphs of the covering letter (page 3023) are not of that kind and may be released without revealing deliberations or decisions of the Executive.

Document 155

116. This document is a letter to Mr Mike Harris from Dr Bruniges dated 7 June 2006. We note that exemption is claimed under sections 35(1)(c) and 35(1)(d). The reason claimed for the exemption is that, if released, the document would disclose the deliberations and decisions of the Executive that have not been officially published. We have examined the document and do not find that reasonable grounds exist for the claim that page 3027 of the document is of a kind referred to in section 35(1)(c) and section 35(1)(d). We find that reasonable grounds exist for the claim that page 3026 of the document is of a kind referred to in section 35(1)(d).

Document 3*[1]
[1] This document is in the section 35 certificate signed by Pam Davoren dated 20 April 2007. It is a document in matter AT07/03.

117. This document is a copy of a Cabinet submission covered by the conclusive certificate dated 20 April 2006, which claims exemption under section 35(1)(c). Exemption is claimed over all of the document including nine of its ten attachments. Exemption is not claimed for Attachment B. We find that there are reasonable grounds for the claim that the document is of a kind referred to in sections 35(1)(c). We have considered whether factual material may be disclosed pursuant to section 35(2) and find that the part of Attachment G under the heading “Statutory Requirements” and Attachment J, being a summary of items on the Parliamentary Record, contain purely factual material . Section 35(1)(c) does not apply to those parts.

Conclusion

118. The Tribunal concludes:

that reasonable grounds do not exist for the claim that the following documents are exempt under section 35 of the FOI Act 1989:
Document Nos. 105; 106; 128; 131 except for those parts of the document marginally headed “Cabinet Submission on School Renewals” and “Risk Assessments”; 141; 144 pages 2922, 2923 and 2927; 145 page 2940; 149 pages 2979 and 2980; 152 page 3021 paragraphs 1, 2 and 4; 153 page 3023 paragraphs 1, 3 and 4; 155 page 3027.
that Attachment G headed “Statutory Requirements” and Attachment J entitled “Scrutiny of the Legislative Assembly 6 June 2006 – 6 December 2006” of Document 3* contains purely factual material and section 35 of the FOI Act does not apply to them.
that reasonable grounds exist for the claim that the documents not referred to in paragraphs 1 and 2 above are exempt under section 35 of the FOI Act.

SECTION 36 DOCUMENTS

Applicable Law

119. Sections 36(3) and 62(5) of the FOI Act are set out above. They are in substantially the same terms as sections 36(3) and 58(5) of the Commonwealth FOI Act, respectively. Both provisions were the subject of consideration by the High Court of Australia in McKinnon. The decision of the High Court in that case makes it clear that in dealing with an application to review a decision refusing to grant access to documents in respect of which a certificate has been issued under section 36(3) of the FOI Act, the Tribunal does not undertake full merits review. The task for the Tribunal, in relation to each document for which the section 36(3) exemption is claimed, is to follow two steps. First, it must determine whether the document is an “internal working document” covered by section 36(1)(a). Secondly, it must determine whether there are reasonable grounds in the claim in the certificate that disclosure would be contrary to the public interest. The Tribunal sets out the law relating to the two elements of the task below.

Internal Working Documents

120. A document is an internal working document if it falls within the terms of section
36(1)(a). This refers to documents containing:

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 Territory.

121. The concept of “deliberation” was considered by the Commonwealth AAT in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588. At page 606 the Tribunal said:

The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action. In short, 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… Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency.

Document 149

339. On the face of this document (pages 2946 to 2980 inclusive), and having regard to the evidence, it is clear that it contains advice prepared in the course of deliberative processes involved in the functions of the department. The Tribunal finds that it is an internal working document.

340. A public interest ground claimed against disclosure of this document is that it would be contrary to the public interest to release a document relating to the Strategic and Functional Review because it would reveal deliberations and decisions of the Executive. It is further argued that senior officers of the government should be able to communicate freely on matters relating to the development of sensitive public policy which may be the subject of public controversy. It is argued that such confidentiality ensures full and frank advice is given and all relevant options are canvassed.

341. The Tribunal notes that the High Court in McKinnon placed less weight on the public interest grounds relating to free communication. However, having regard to the third ground in McKinnon, the Tribunal considers that a reasonable ground exists for the claim.

Document 150

342. On the face of this three page document (pages 2981 to 2983 inclusive), and having regard to the evidence, it is clear that it contains advice prepared in the course of deliberative processes involved in the functions of the department. The Tribunal finds that it is an internal working document

343. The public interest grounds claimed against disclosure of this document are that it would be contrary to the public interest to release a document relating to high level policy communication between senior officers in relation to the Budget; senior officers of the Government should be able to communicate freely on matters relating to the development of sensitive public policy which may be the subject of public controversy. It is argued that release of the document would mislead and confuse.

344. Consistently with the adoption by the High Court of the third ground in McKinnon we consider that a reasonable ground exists for the claim for exemption under section 36(3) of the FOI Act.

Document 151

345. On the face of the document at pages 2984, 2985 and 2986, and having regard to Mr Curry’s evidence, the Tribunal finds that the document contains opinion and advice relating to recommendations to the Executive regarding the functions of an agency of the Territory. This is an internal working document. The public interest grounds claimed for refusing disclosure relate to disclosure of Executive deliberations. It is claimed is that it is not in the public interest to disclose high level policy communication between the most senior departmental officers relating to the 2006-7 Budget which was subject to deliberations by the Executive.

346. However, on the face of the document, and from the evidence provided, it has not been proved to the satisfaction of the Tribunal that there is a reasonable public interest ground for upholding the claim. The document relates to purely administrative matters.

Document 152

347. On the face of this 35 page document (pages 2987 to 3021 inclusive), and having regard to the evidence, this document contains advice and recommendations prepared in the course of processes involved in the department’s functions. The Tribunal finds that it is an internal working document.

348. The public interest ground claimed is that it is not in the public interest to disclose high level policy communication between the most senior departmental officers relating the to 2006-7 Budget which was subject to deliberations by the Executive. It is also argued that senior officers of the government should be able to communicate freely on matters relating to the development of sensitive public policy which may be the subject of public controversy. It is argued that release of the document would mislead and confuse in view of its provisional nature. It is further argued that disclosure would inhibit written communication and encourage oral communication.

349. Consistently with the adoption by the High Court of the third, fourth and fifth grounds in McKinnon we consider that reasonable grounds exist for the claim for exemption under section 36(3) of the FOI Act.

Document 153

350. On the face of this two page document (pages 3022 and 3023) it contains advice prepared in the course of deliberative processes involved in the functions of an agency. The Tribunal finds that it is an internal working document.

351. The public interest ground claimed is that it would disclose Budget deliberations and decisions of the Executive that have not been officially published. It is argued it would reveal matters relating to the Strategic and Functional Review and would reveal deliberations and decisions of the Executive.

352. The Tribunal notes that the High Court in McKinnon placed less weight on the public interest grounds relating to free communication. However, having regard to the third ground in McKinnon, the Tribunal considers that a reasonable ground exists for the claim.

Document 154

353. This document contains two pages (pages 3024 and 3025). On the face of the document, and having regard to Mr Curry’s evidence, the Tribunal finds that the document contains opinion, advice and recommendations relating to the deliberative processes of the department regarding the 2020 proposal. It is an internal working document. The public interest ground claimed is that it is not in the public interest to disclose high level policy communication between the most senior departmental officers relating to the 2006-7 Budget. It is also claimed that officers should be able to communicate freely in writing and a proper record of such policy communications be maintained. Consistently with the adoption by the High Court of the third and fourth grounds in McKinnon we consider that reasonable grounds exist for the claim for exemption under section 36(3) of the FOI Act.

Document 155

354. On the face of this two page document (pages 3026 and 3027) it contains advice prepared in the course of deliberative processes involved in the functions of an agency. The Tribunal finds that it is an internal working document.

355. The public interest grounds claimed against disclosure of this document are that: it is not in the public interest for high level policy debate directly considered by the Executive or inextricably linked with the processes of the Executive to be revealed. It is argued that senior officers should be able to communicate freely on the development of sensitive public policy and it would be contrary to the public interest to release a document relating to the Strategic and Functional Review. It is also argued it would mislead and confuse to release a document which contains policy options and has the potential to be taken out of context. It is argued that disclosure would inhibit written communication and encourage oral communication.

356. Consistently with the adoption by the High Court of the third and fifth grounds in McKinnon we consider that reasonable grounds exist for the claim for exemption under section 36(3) of the FOI Act.

Document 5*[2]
[2] This document is in the section 36 certificate signed by Janet Davey dated 10 August 2007. It is a document in matter AT07/03.

357. Although document 5* was created by an unknown author on an unknown date, it is clear on its face that it was created in the course of the department’s functions in relation to preparing options as part of its deliberative processes. It is an internal working document.

358. The public interest grounds claimed in relation to the document are that release would mislead and confuse because of the uncertainty surrounding its authorship and time of creation and it contains options that were not settled at the time of its creation. Further it is argued that release of documents prepared in the context of submissions to the Executive should not be released because of the public interest in preserving confidentiality to ensure that free and frank advice is given and to avoid revealing deliberations and decisions of the Executive. The Tribunal considers that, consistently with the adoption by the High Court of the third ground in McKinnon, a reasonable ground exists for the claim for exemption under section 36(3) of the FOI Act.

Conclusion

359. The Tribunal concludes that:

reasonable grounds do not exist for the claim that disclosure of the following documents would be contrary to the public interest:

Document Nos. 87, page 2575; 128, 130; 132; 142 and 151.

that Document 147 contains purely factual material and section 36 of the FOI Act does not apply to it.

reasonable grounds do exist for the claim that disclosure of the documents not referred to in paragraphs (1) and (2) would be contrary to the public interest.

ACT ASSESSMENT PROGRAM

360. All students in Years 3, 5, 7 and 9 in all government schools participate in the ACTAP annually. The scope of the program covers all strands of literacy and numeracy for Years 3 and 5 as set out in the ACT Frameworks and Profiles. In Years 7 and 9 students are assessed in reading, writing, spelling and in the three numeracy strands. Schools receive detailed reports of their school and student performance against the ACT mean as well as individual student reports. Parents receive an individual copy of the results of their child’s performance against all strands assessed, compared to the ACT cohort and against the national benchmark standards in reading, writing and numeracy.

361. Documents 2-19 make reference to the results of the ACTAP for a particular year. The respondent claimed that the documents, in so far as they contained such references, were exempt under section 40(1)(d) of the FOI Act. It provides:

` 40 Documents concerning certain operations of agencies

(1)Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to—
…………..
(d)have a substantial adverse effect on the proper and efficient conduct of the operations of an agency; or

Section 40(2) provides:

(2)This section does not apply to a document the disclosure of matter in which under this Act would, on balance, be in the public interest.

362. Documents 2-19 contain information described in a written statement of Mr Curry as the opinion of an officer of the department interpreting the data produced as a result of the implementation of the ACTAP in relation to individual schools. He stated that a guideline document entitled ‘Reporting of ACTAP Results to Parents’ (“the guidelines”) which had been developed in consultation with interested parties, provided guidance on the preservation of confidentiality of data that compared schools. The data, he said, was collected on the basis that it would not be used in a comparative manner between schools and that it was likely that the ability of the department to collect such information in the future would be compromised if it was released.

363. Clause 4.0 of the guidelines contain what are referred to as mandatory procedures. Those procedures are:

4.1Parents of all Year 3, 5, 7 and 9 students will be informed of the assessment process through the distribution of the Information Brochure.
4.2Parents who do not wish their children to participate in the assessment program have the option to withdraw them following discussions with the school principal.
4.3Principals, and the Department, must not use the data to evaluate the effectiveness of a teacher as part of the Professional Pathways process.
4.4The principal, in collaboration with the School Board, is responsible for ensuring that the school results are not used for marketing of the school.
4.5School averages on ACTAP may not be given out or published in any school or community publication or newsletter.
4.6All school staff members are prohibited from using ACTAP data for comparisons between schools.
4.7Individual student results must be kept confidential at all times, securely filed and may not be reported in any form other than to parents/carers/guardians.
4.8Schools must securely file reports containing individual student results and ensure that access to this information is only available to the student, parent/carer/guardian, or staff of the school.
4.9Principals, staff members, School Boards and P&Cs must not aggregate the results of individual strands to calculate an overall measure of school performance.
4.10All board members, including teacher representatives, must sign a confidentiality agreement regarding the non-disclosure of information as set out in the attached ‘Code of Practice – Acceptable Use of Student Achievement Data’.

364. A document entitled ‘Code of Practice – Acceptable Use of Student Achievement Data’ (“the code”) is required to be signed by all school board members. The code includes the following mandatory procedures:

Student achievement data will not be used to:

i)    compare individual students
ii)   assess teacher performance
         iii) compare individual teachers
         iv) make positive or negative comparisons about school performance
v)   compare government and non-government schools.

It is acceptable to:

i) collect and use student achievement data in ways which support the teaching and learning practices in the school and to ensure that information about student achievement is used to improve learning outcomes for students

ii) inform parents about the purposes of data collection and to provide information relating to their child’s achievement.
School Board members will:

i) not publish or broadcast, or aid in the publication or broadcast of any information on achievement which allows comparison between individual students or ranks schools

ii) not use student achievement information publicly to promote schools, teachers or principals
iii)ensure that information about student achievement is not misused.

365. In evidence given at the hearing Mr Curry said that agreement regarding the use of ACTAP data had been reached with parents, teachers, principals, members of the Australian Education Union and the department and was designed to avoid the possibility of parents creating “league tables of schools” based on ACTAP performance. He considered that it was not in the public interest to release material contrary to the guidelines and said that the brief information in Documents 2-19 was not actual but a brief subjective comment on each school’s results made by one officer of the department.

366. He said that the information in Documents 2-19 was based on the data for a single year and was unreliable because meaningful results could only be obtained from trend data over a 3-5 year period and, even then, the results could be affected by cohort sizes and other extrinsic factors. He considered that, nevertheless, the public was likely to misconstrue the data and to make judgements of a ranking nature if it was released. This would result in schools with high ACTAP scores attracting students, schools with lower ACTAP scores losing students and teachers unconsciously engaging in teaching practices to increase ACTAP scores in literacy and numeracy while foregoing other curriculum requirements.

367. Mr Curry said that Documents 2-19 were produced when the 2020 proposal was being prepared for the department’s website. The documents would have gone on the website but he had asked for them to be taken off it after they had been there for about 10 minutes when he became aware that they were there.

368. In his evidence Mr Curry said that he did not have any role in formulating the department’s policy relating to the reporting of ACTAP results nor did he have any responsibility for that part of the department which did develop the policy. He said that it would be necessary for him to go back and look at how the policy was developed but he would be fairly confident in saying that the P&C Association would have had a particular interest in the policy at the time it was developed and the Australian Education Union currently holds a strong view that aggregated school data should not be released and he understood that the P&C Association held a similar view.

369. In cross-examination Mr Curry agreed that the ACTAP results was a relevant factor in looking at the educational aspects of the 2020 proposal. He was aware that the current requirement for ACTAP testing was imposed by the Commonwealth as a condition of federal funding but he was not aware whether that was the reason the testing had been introduced because he was not involved in the process at that time. He said that it was not a condition of that funding that ACTAP results not be reported. He said that he was aware of the view on ACTAP data of the Australian Education Union because he had discussed the matter with them but he could not recall a specific occasion on which he had discussed the matter with the P&C Association. Nor did he recall whether the department had consulted the P&C Association but he would be surprised if it had not. He had not checked the department’s files to see if there had been any consultation with it. He believed that school principals held the view that the ACTAP results should not be published.

370. Much of the evidence of Mr Curry and the written submissions on behalf of the respondent were directed at the potential for the documents in question, if disclosed, to confuse, mislead and be inappropriately used. Reliance was placed by the respondent upon his evidence that single year data was not educationally useful because it did not show progress of students over time and that, in the absence of qualification, the documents would be misleading and undermine confidence in particular schools.

371. It was submitted on behalf of the respondent that the collection of the ACTAP data had only proceeded with the agreement of other interested parties, identified by the submission as school principals, the Australian Education Union and the P&C Association and that the ability of the department to collect such data would be compromised if, notwithstanding agreement with relevant interested parties that it would not be released in a manner that allowed use as “league tables”, it was so released.

372. Mr Curry, on whose evidence the respondent relied in support of the submission, had no involvement in the development or formulation of the departmental policy regarding the use of ACTAP results or the guidelines. At the time of its introduction, he worked in an area of the department which had no responsibility for the policy. No record of the involvement of the various parties interested in the development and formulation of the guidelines was provided to the Tribunal in evidence.

373. Mr Curry’s evidence did not make clear which of the guidelines were of particular concern to each of the interested parties. Whilst, we observe, that ordinary concerns for personal privacy might provide a basis for the holding of a reasonable expectation that students and their parents might have objection to the disclosure of the results of individual students we note that, according to the evidence, that is not the nature of the information in respect of which the exemption is claimed. We observe also that we do not consider that, for example, students and their parents or the association which represents their interests, would necessarily object to the disclosure of the interpretation of ACTAP data by a senior departmental officer that might be used as a basis for comparison of the performance of individual schools.

374. We accept that the conduct of the testing that gives rise to the ACTAP results is a part of the operations of the department in providing education services in the Territory. We accept also that there is some force in the submission made on behalf of the respondent that Mr Curry’s evidence supports a conclusion that disclosure of the information for which exemption is sought would not, on balance, be in the public interest. It is also necessary, however, for the Tribunal to be satisfied that there would be a substantial and adverse effect on the proper and efficient conduct of the department’s operations in order to find that the claimed ground of exemption applies.

375. The adverse effect on the department’s operations which was identified by Mr Curry was the compromise to the department’s capacity to collect the ACTAP data if the guidelines were not adhered to. In relation to that claim we note that section 71 of the FOI Act places the onus of proving that its decision in relation to the request of the applicants for access to the ACTAP material was justifiable or that the Tribunal should make a decision adverse to the applicants, on the respondent.

376. In the absence of clear evidence of the position taken by each of the interested parties in relation to the guidelines and the basis for that position, we can only speculate as to the kind of adverse consequences that might result from a failure to adhere to them and as to whether those consequences may involve the degree of gravity that the word “substantial” imports. The evidence of Mr Curry is insufficient, in our opinion, to clearly demonstrate the assumed or accepted facts upon which his opinion was based and does not, in that event, provide a proper foundation for it. To accept his opinion would, as was explained in Re O’Sullivan and Police Force (Vic) (1986) 1 VAR 171 at 176, be to abdicate the role of the Tribunal as an independent review body charged with the duty of granting access to documents unless it is persuaded that a specific ground of exemption has been made out.

Conclusion

377. Accordingly, we conclude that those parts of Documents 2-19 in respect of which exemption from disclosure under section 40(1)(d) is claimed, are not exempt under that section.

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________

PART A FILE NOS: AT06/63 & 66 & AT07/03

APPLICANTS: MRS VICKI DUNNE (AT06/63)
KATHLEEN BARDEN (AT06/66 & AT07/03)

RESPONDENT: ACT DEPARTMENT OF EDUCATION & TRAINING

PARTIES JOINED:             N/A
COUNSEL APPEARING:    APPLICANT: MR T BRENNAN
(FOR MRS DUNNE)
RESPONDENT:       MR D MOSSOP
PARTIES JOINED:

SOLICITORS: APPLICANT: O’CONNOR HARRIS
RESPONDENT: ACT GOVERNMENT SOLICITOR
PARTIES JOINED:

OTHER:APPLICANT: SELF (AT06/66 & AT07/03)
RESPONDENT:
PARTIES JOINED:

TRIBUNAL MEMBER/S:   MR M H PEEDOM, PRESIDENT
  MS P O’NEIL, SENIOR MEMBER
  MS S TONGUE, SENIOR MEMBER

DATE/S OF HEARING: 4-6 JUNE & 23 AUGUST

2007 PLACE: CANBERRA

DATE OF DECISION: 17 DECEMBER 2007 PLACE: CANBERRA
_______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)

COMMENT: