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Mark R Diamond v

Mark R Diamond v

Case [2014] AATA 707 29 September 2014

Judicial Review

Access to Information

Public Interest

Conditional Exemptions

Administrative Law

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[2014] AATA 707

DivisionGENERAL ADMINISTRATIVE DIVISION

File Number 2013/2956

Re Mark R Diamond
APPLICANT

AndChief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority
RESPONDENT

DECISION
Tribunal Deputy President S A Forgie
Ms S Taglieri, Member

Date 29 September 2014
Place Melbourne
Decision
The Tribunal decides to affirm the decision of the Information Commissioner dated 22 May 2013 and affirming the respondent’s decision dated 10 June 2011 to refuse to grant access to the documents sought by the applicant in his request under the Freedom of Information Act 1982.

…[sgd] S A Forgie...
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request for NAPLAN and non-NAPLAN data held by ACARA – whether exemptions did not arise for consideration at all because threshold requirement of disclosure “under” the Freedom of Information Act 1982 could not be met when data had already been publicly disclosed on My School website – consideration of “disclosure”- public interest conditional exemptions relating to Commonwealth-State relations and to proper and efficient conduct of an agency’s operations apply – conceded that, if conditionally exempt, access would be contrary to the public interest - access to documents refused - decision under review affirmed
FREEDOM OF INFORMATION – WORDS AND PHRASES – document –identified through a number of factors including analysis of context, evidence and way in which information stored
LEGISLATION
Administrative Appeals Tribunal Act 1975; section 37
Australian Curriculum, Assessment and Reporting Authority Act 2008; sections 2, 3, 5, 6, 7, 12, 13, 40
Contempt of Court Act 1981 (UK); section 8
Criminal Records Act 1991 (NSW); section 13
Education Act 1990(NSW)
Education Reform Act 1990 (NSW); section 18A
Education Reform Amendment Act 1997 (NSW); section 3, schedule 1 and item 1, schedule 3 and item 3
Freedom of Information Act 1982; sections 3, 4, 7, 11, 11A, 11C, 15, 17, 20, 22, 31B, 33, 34, 39, 40, 47B, 47E, 61
School Assistance Act 2008; section 174
Taxation Administration Act 1953; sections 355-25, 355-45, 355-55, 355-65
School Assistance Regulations 2009
CASES
Alexandra Private Geriatric Hospital v Blewett (1984) 2 FCR 368; 56 ALR 265
Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607; 13 ALD 195
Ascic v Australian Federal Police (1986) 11 ALN N184
Attorney-General v Associated Newspapers [1994] UKHL 1; [1994] 2 AC 238
Attorney-General’s Department and Another v Cockcroft (1986) 64 ALR 97
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Tax [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151
Haigh v Royal Mail Steam Packet Co 52 LJQB 395
Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551; 5 ALD 545
Hogarth and Ors v Gye and Anor [2002] NSWSC 32
Kemp v Sober 1 Sim. N.S. 517; 61 ER 200
Nakhl Nasr v New South Wales [2007] NSWCA 101
Re Application of THE NEWS CORP LTD (1987) 15 FCR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mark R Diamond v

Details

AGLC: Mark R Diamond v [2014] AATA 707
Case: [2014] AATA 707
Decision Date: 29 September 2014

CaseChat Overview and Summary

The matter involved Mark R Diamond, who sought access to NAPLAN and non-NAPLAN data held by the Australian Curriculum, Assessment and Reporting Authority (ACARA). The dispute centred on whether exemptions under the Freedom of Information Act 1982 (FOI Act) applied to the requested information, given that the data had already been publicly disclosed on the My School website. The case was heard in the Federal Court of Australia.

The central legal issues were whether the exemptions applied to the data that had already been publicly disclosed and whether the threshold requirement of disclosure "under" the FOI Act could be met. Specifically, the court had to determine if the public interest conditional exemptions related to Commonwealth-State relations and the proper and efficient conduct of an agency's operations were applicable. It was conceded that if the exemptions applied, access to the information would be contrary to the public interest.

The court found that the requested data constituted a document under the FOI Act, considering various factors, including the context, evidence, and how the information was stored. The court held that the public interest conditional exemptions did apply, and since it was accepted that access would be contrary to the public interest, the request for access to the documents was refused. Consequently, the decision by ACARA to deny access to the information was affirmed by the court.

Orders