Gu v Commissioner, Department of Corrective Services

[2003] NSWADT 176

CITATION:	GU v Commissioner, Department of Corrective Services [2003] NSWADT 176
DIVISION:	General Division
PARTIES:	APPLICANT GU RESPONDENT Commissioner, Department of Corrective Services
FILE NUMBER:	033027
HEARING DATES:	23/07/2003
SUBMISSIONS CLOSED:	07/23/2003
DATE OF DECISION:	07/25/2003
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - operation of agencies - access to documents - operations of agencies
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	(Searle Australia Pty Limited v PIAC (1992) 36 FCR 111 Neary v Chief Executive, State Rail Authority [1999] NSWADT 107
REPRESENTATION:	APPLICANT In person RESPONDENT N Yetzotis, solicitor
ORDERS:	Agency's decision not to provide the applicant with copy access to the documents is affirmed.

Introduction

1 GU, the applicant in this case, asked the Tribunal to review a decision by the Commissioner of Corrective Services (the agency) under the Freedom of Information Act 1989 (FOI Act). When GU was in prison, he agreed to participate in a voluntary treatment programme for sex offenders. A series of psychological tests was administered at the beginning of his treatment and then again 7 months later to gauge his progress after treatment. GU is seeking access to pages 47 to 85 of his psychological file which comprises a battery of 20 tests, his answers to the tests and the scoring key. The agency granted GU “inspection” access only under s 27 of the FOI Act but the applicant requested a copy of the documents. Under s 27(2), “If an applicant has requested that access to a document be given in a particular form, access to the document shall be given in that form.”

Exemption

2 The objects of the FOI Act are set out in section 5(1)(a):

The objects of this Act are to extend, as far as possible, the rights of the public:
(a) to obtain access to information held by the Government; and

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect out of date or misleading.

3 An agency may refuse access to a document if it is an "exempt document" (FOI Act s 25(1)(a)). Pursuant to s 6(1) of the FOI Act an "exempt document" includes a document referred to in Schedule 1. The respondent relies on the exemption in s 16(a)(i) of Schedule 1 to the FOI Act. That provision states that:
A document is an exempt document if it contains matter the disclosure of which:
(a) could reasonably be expected:

(i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency,. . . and

(b) would, on balance, be contrary to the public interest.

Evidence.

4 Objects of testing process. The evidence in this case consisted of a report from Michael Edwards, the Director of Psychological Programmes with the agency dated 4 June 2003. Mr Edwards has been working as a psychologist with the agency since 1981. According to Mr Edwards psychological testing of inmates is necessary to carry out the agency’s rehabilitation function and specifically to measure the results of the voluntary treatment programme. Those results are passed on to senior management and to the scientific community.

5 The tests administered to GU. In GU's case, the agency administered some 20 tests in a particular sequence on two occasions, some seven months apart. The sequence in which the tests are administered is not random. While some tests can be administered at any point in the process, others have to be administered at a particular point in the series. The test is administered at the beginning of the treatment programme so that a baseline measure can be taken of the person’s psychological state. The tests were administered again at a later date so that any progress GU had made through treatment or otherwise can be plotted. It is not simply the content of the answers which psychologists focus on, but the pattern of answers throughout the test. Those patterns are compared with how other people have answered in the past and the progress that they have achieved during treatment.

6 Methods of conducting tests. Because the test are standardised, the results can be compared with those of other clients. The standardisation of the measurement is premised on control of the conditions under which the measurements are made. These controls are firstly that the test is not distributed any more widely than is necessary. Secondly, the test is administered by a psychologist under standard conditions. For example, clients are given a routine explanation as to how to respond to the questions.

7 Impact on validity of tests. According to Mr Edwards, the main prejudice in disclosing the tests would be that those who had an opportunity to study the test questions would not answer in an impromptu or spontaneous manner. They would be more inclined to try to plan their answers to achieve a particular outcome. This would be the case where a person who had not previously taken the test had access to the questions or where a person who had already been tested was to be re-tested following treatment. While clients may not have the knowledge or expertise to predict the answers that would produce a particular result, any lack of spontaneity in the answers would affect the validity of the test results. The tests would be much less valuable to psychologists if this occurred.

8 Impact on relationship with scientific community. According to Mr Edwards, one reason they use standard tests is so that they can share information with the scientific community about the validity and results of that testing. They would become isolated from the remainder of the scientific community interested in this issue if the assumptions in relation to the testing process are no longer valid. Furthermore the scientific community would be reluctant to share information with them if they knew that they could not keep the tests confidential.

9 Availability of the tests. The respondent told the applicant the names of the 20 tests which he had taken. GU was able to locate 17 of those tests including some of the scoring keys on the internet and in publications available in university libraries. Mr Edwards conceded that many of the documents are available on the internet and in books and magazines. Psychologists know that they cannot restrict access to the test completely but they do try to restrict circulation of the tests as much as possible. Two of the tests used have been sourced from unpublished documents with the consent of the authors. According to Mr Edwards, many of the published tests are subject to copyright.

10 Ability to formulate other tests. One of GU’s submissions was that given the expertise of the psychologists at the agency, they could formulate new tests if the existing tests lose their validity. Mr Edwards said that if the tests were widely distributed then the agency would have to change the instruments making up the battery of tests. It would be expensive to devise and/or search for new instruments to replace existing ones. Most importantly, it would deprive the agency of its ability to measure change after treatment because it would not be able to use the same instruments.

11 Inspection access. Mr Edwards said that they are prepared to allow individual clients to read through the tests and ask questions. In that way people have access to information about their personal affairs without being able to memorise questions and plan answers in the future. Such planning would affect one of the assumptions of the tests which is that answers are given spontaneously.

12 Public interest considerations. In Mr Edward’s view sources of the tests may be more reluctant in the future to share their knowledge with the agency if the agency is unable to guarantee the confidentiality of that material. Psychologists generally consider the release of test material to anyone other than another trained psychologist to be unethical. That is because people need to have adequate knowledge of the theory to understand and administer the tests and also because of the potential harm that may result if the tests are misused or misinterpreted. According to Mr Edwards it is in the public interest that psychologists use the same standardised tests so that results can be compared and research can be carried out on the basis of comparable results.

Elements of the exemption.

13 Summary. Under s 61 of the FOI Act, the onus is on the respondent to make out the exemption. As there was no dispute in this case that the documents come within the description of “a test, examination or audit”, the elements which must be established are that:

· disclosure could reasonably be expected;

· to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency; and

· would, on balance, be contrary to the public interest.

14 Could reasonably be expected . The phrase "could reasonably be expected to" should be given its ordinary meaning ( Searle Australia Pty Limited v PIAC (1992) 36 FCR 111 at 122). In Neary v Chief Executive, State Rail Authority [1999] NSWADT 107, the Tribunal held (following Federal Court cases) that although there must be more than a mere risk that the stated result will follow from disclosure, it was not necessary that the risk be assessed as more probable than not (at [35]).

15 The agency’s submission is based on the assumption that if GU is given access to the tests, his answers and the scoring keys, then there is nothing to stop him from distributing the tests more widely. I am not satisfied that it “could reasonably be expected” that GU would distribute the tests in that way. However, if GU is given access to the tests and his results, then it can be assumed that anyone making an application under the FOI Act would be entitled at least to the tests and the scoring keys, if not to a person’s answers. The availability of the tests would be increased. That expectation must be balanced against the fact that at least 17 of the 20 tests are already publicly available.

16 I am satisfied that it could reasonably be expected that giving GU access to the documents would make the tests and the scoring keys even more available to the general public than is the situation currently. Furthermore, while tests are publicly available, the public does not know which of those tests is administered and in what order.

Prejudice the effectiveness of any method or procedure for the conduct of tests.

17 Evidence as to the prejudice to the effectiveness of the methods and procedures for conducting the test was provided by Mr Edwards. That evidence was not challenged in cross-examination and I accept it. In summary, that prejudice is that the assumptions underlying the administration of the tests would no longer be valid. In particular, the assumption that a person will provide a spontaneous, rather than a planned, answer could not be made. In addition, psychologists would be unable to plot the progress of offenders and would be unable to determine with any degree of certainty, whether treatment had been effective.

Public interest

18 When assessing public interest, the Tribunal must balance the public interest considerations in favour of disclosure against those interests adverse to disclosure. As well as the promotion of the democratic objectives of the FOI Act, there is a public interest in GU having access to information about himself, especially if that information is used to make any decision. That interest is addressed in part by allowing GU to inspect his tests and to discuss the results with a psychologist.

19 The public interest considerations against disclosure are that the validity of the tests could reasonably be expected to be compromised and the agency will lose the opportunity to share information with the scientific community about the results of that testing. In addition, the scientific community would be reluctant to share information with the agency if they knew that they could not keep the tests confidential.

20 If GU were entitled to the test documents and the scoring keys, then any member of the public making an application under the FOI would be entitled to those documents. Those documents would tell a person not only the content of particular tests and the scoring keys (many of which are publicly available) but also the tests which the agency uses and the order in which those tests are administered. This information could reasonably be expected to undermine the validity of the tests. The public interest considerations do not favour disclosure because these tests are extremely valuable in the assessment and treatment of sex offenders. Any diminution in their validity is not in the public interest. In addition, the interest in GU having information about himself is accommodated by the agency’s preparedness to allow him to inspect the documents. For these reasons, the decision of the agency not to disclose the documents to GU is affirmed.

Copyright

21 Although the respondent did not submit that disclosure of the tests would involve an infringement of copyright, Mr Edwards gave evidence that many of the tests are protected by copyright. Section 27(3)(c) of the FOI Act allows an agency to refuse to give access in the form requested if that “would involve an infringement of copyright subsisting in matter contained in the document.” If access in that form is refused, access must be given in another form, such as by giving the person a reasonable opportunity to inspect the document. While I do not need to decide the issue in this case, it may well be that photocopy access would involve an infringement of copyright.