Mark R Diamond v
[2014] AATA 707
•29 September 2014
[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, 355-65School 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 227
Re Connolly and Department of Finance (1994) 34 ALD 655
Re Diamond and Australian Curriculum, Assessment and Reporting Authority [2013] AICmr 57
Re James and Australian National University (1984) 2 AAR 327; 6 ALD 687
Re Maher and Attorney-General’s Department (1985) 7 ALD 731; 3 AAR 396
Re Pratt Consolidated Holdings Pty Ltd and Commissioner of Taxation [2011] AATA 907; (2011) 124 ALD 484
Re State of Queensland and Australian National Parks and Wildlife Service [1986] AATA 224; (1986) 13 ALD 158; 5 AAR 328
Re Thies and Department of Aviation (1986) 9 ALD 454
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another [1992] FCA 241; (1992) 36 FCR 111; 108 ALR 163; 16 AAR 28
Smith v Brown (1871) LR 6 QB 729
TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496
Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367; 42 FLR 331
Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317OTHER MATERIALS
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Data access protocols for data managed by ACARA 2012
Principles and protocols for reporting on schooling in Australia, June 2009
National Education Reform Agreement, 23 April 2013
REASONS FOR DECISION
Under the Freedom of Information Act 1982 (FOI Act), Dr Diamond made a request to the Australian Curriculum, Assessment and Reporting Authority (ACARA) for access to, in electronic form, a complete list of schools for which results are reported on the My School website it maintains. He also requested complete details of all items that may be publicly reported in relation to each school and for each of the reporting years 2008, 2009 and 2010. He gave further details of the documents he requested. ACARA refused his request. On review, the Freedom of Information Commissioner (FIC), affirmed ACARA’s decision except in so far as a list of schools was concerned. He did so after finding that the remaining documents requested by Dr Diamond were conditionally exempt under s 47B of the FOI Act. In considering the public interest test under s 11A(5), the FIC accepted that “… there is a real risk that the States will withdraw from the My School program, making the program untenable. …”[1] Dr Diamond applied for review of the FIC’s decision and we have affirmed the decision.
[1] [2013] AICmr 57 at [52]
BACKGROUND
At Attachment B to these reasons, we have set out our findings relating to ACARA, how it is established and its purpose. We have also set out our findings in relation to the collection of data in the establishment of the My School website in that Attachment. We draw on those findings throughout these reasons but, in this section of our reasons, we summarise the findings that set the background to the issue we must consider. We find:
(1)ACARA was established by the Australian Curriculum, Assessment and Reporting Authority Act 2008 (ACARA Act) following a resolution of the Council of Australian Governments (COAG).
(2)ACARA’s purpose is found in its functions set out in s 6 of the ACARA Act. They cover a range of matters directed to providing resources, support and guidance to policy makers, administrators, schools and the teaching profession while providing information to parents and school students and the public in general.
(3)For the purposes of this case, we note that the ACARA Act requires ACARA to:
(a)develop and administer a national school curriculum both as to content and as to achievement for subjects specified in the Charter agreed upon on 3 August 2012 by the Standing Council on School, Education and Early Childhood (Standing Council), previously known as the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) and then the Ministerial Council for Education, Early Childhood Development and Youth Affairs (MCEECDYA)[2];
[2] A note to the definition of “Ministerial Council” in r 1.4 of the School Assistance Regulations 2009 states: “The current Ministerial Council is the Standing Council on School Education and Early Childhood, which was established on 18 January 2012, and took over the schools education functions of the former Ministerial Council for Education, Early Childhood Development and Youth Affairs (MCEECDYA). MCEECDYA was established on 1 July 2009 and took over the schools education functions of the former Ministerial Council on Education, Employment, Training and Youth Affairs.”
(b)collect, manage and analyse student assessment data (NAPLAN data)[3] and other data relating to schools and comparative school performance; and
[3] National Assessment Program – Literacy and Numeracy: School Assistance Regulations 2009; r 1.4
(c)publish information relating to school education including information relating to comparative school performance of similar schools.
(i)similar schools are schools with statistically similar student populations in terms of socio-educational advantage. Similarity is determined by ACARA by reference to an Index of Community Socio-Educational Advantage (ICSEA)[4] it has developed to enable comparisons of NAPLAN test achievements by students in schools across Australia.
[4] ICSEA was created by ACARA to enable comparisons of NAPLAN test achievement by students in schools across Australia. It takes account of factors relating to students’ family backgrounds and factors affecting each school including geographical location and demographics of the student population to ascertain educational advantage or disadvantage. ICSEA does this by means of numerical representation on a scale.
(4)In carrying out its functions, ACARA is required to act in accordance with the directions of MCEETYA which is now known as the Standing Council.[5]
[5] See
(a)Among other matters, those directions require ACARA to report against nationally agreed reporting arrangements endorsed by COAG and MCEETYA;
(b)Those directions are directed to ensuring that:
(i)nothing is reported that permits the identification of individual students; and
(ii)data will not be published in a form that compares the performance of individual schools without contextual information.
(5)ACARA has gathered all of the NAPLAN data and other relevant data in an electronic database (My School database or database) whose data can, if accessed otherwise than through the My School website (URL address: be manipulated and altered at the direction of the user;
(6)My School enables:
(a)public access to the My School database subject to restrictions consistent with MCEETYA’s directions in that:
(i)members of the public can locate statistical and contextual information about schools in their community and compare them with a group of up to 60 schools serving students with statistically similar backgrounds in terms of educational advantage but not necessarily in terms of location;
(ii)ACARA has taken steps to minimise the risk of data being stripped from the database so that it can be used to populate another database whose data may be manipulated and altered in a way not possible by using the My School website; and
(iii)the My School website requires a user to accept Terms of Use which, among other matters, prohibit users from using the data to create lists of comparative school performance for direct or indirect commercial purposes.
DR DIAMOND’S FIRST REQUEST
Although it is not the subject of this matter, we will refer to Dr Diamond’s first request to ACARA for documents under the FOI Act and related to the My School database. In a letter dated 24 November 2010, he asked ACARA for access to documents relating to:
“‘My School’ information for 2009 for Kingston Primary School, Tasmania and Kingston High School, Tasmania.”[6]
[6] Reproduced at Exhibit J
ACARA responded to Dr Diamond’s request by enclosing information that was publicly available on the My School website in relation to 2009 for those schools. It advised him that he could obtain that information in future years by typing the names of the schools in the search field on the website. ACARA attached twenty four pages in the form of screen dumps from the My School website.
THE REQUEST
In a request dated 7 March 2010, Dr Diamond requested:
“the following in electronic form:
1.For each of the reporting years 2008, 2009, and 2010 – a complete list of the schools for which results are reported through ‘My School’.
2.For each of the reporting years 2008, 2009, and 2010, and in respect of each of the schools referred to in the preceding item, complete detail of all those items that may be publicly reported, including (as applicable) but not limited to, those details as specified in the attachment.”[7]
[7] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 7
He specified the information in the Attachment to his letter. This is set out in Attachment A to these reasons. In summary, Dr Diamond requested both NAPLAN and non-NAPLAN data held by ACARA and relating to each school in Australia. He went on to suggest at the foot of his request that:
“The most convenient electronic form, and the cheapest in terms of time involved to produce, would be a database extract, or copy of the relevant database tables with irrelevant fields eliminated.”[8]
[8] T documents; T3 at 7
On the following day, 8 March 2010, Dr Diamond modified his request in a letter in which he stated:
“1. For any given school (the target school), I do not seek a list of schools that are regarded as being statistically similar to the target school.
2.For any given school (the target school), I do not seek a list of schools that are regarded as being local to the target school.
3.I do not seek any information in graphical form.
4.If ACARA maintain the relevant information in numerical form (as opposed only to pre-created graphical form), then
(a)for each target school for which information on student gains in achievement in scores for reading, writing, numeracy, grammar or punctuation is kept,
(b)I request that information in electronic form in respect of each school year, each calendar year and each learning domain for which it is available.
5.I request a copy in electronic form of the school description or school comments (however described), for each of the years 2008, 2009, 2010.
With regard to the electronic form in which the requested information could be supplied, I request that it be supplied in an electronic tabular form (e.g., database tables, comma-separated ASCII fields, etc.) and not in a pseudo-print form such as PDF.”[9]
[9] T documents; T4 at 9
ACARA’S DECISION ON THE REQUEST
ACARA’s initial decision
On 7 April 2011, an authorised decision-maker set out her interpretation of Dr Diamond’s request:
“I interpret your request as a request for information in electronic form and for each
school on My School:
A.School comments found on the school profile page for each of the years 2008, 2009 and 2010; and
B.Student gains in numerical form (as opposed to graphical form) for reading, writing, numeracy, grammar and punctuation.”[10]
[10] T documents; T5 at 11
The authorised review officer advised Dr Diamond of the preliminary view that she had reached on his request and invited him to clarify the nature of his request and, if he wished, to discuss it with an officer from ACARA.
Dr Diamond responded on 11 April 2011 refuting the summary of his request formulated by the authorised decision-maker. He noted that his letter of 8 March 2010 had been intended to clarify his letter of 7 March 2010 and not to replace it. He reformulated his request by stating that:
“1. For each of the reporting years 2008, 2009, and 2010 --- a complete list of the names of the schools for which results are reported through ‘My School’, and
2.For each of the reporting years 2008, 2009 and 2010, and in respect of each of the schools referred to in the preceding item, and where relevant, in respect of each student Year within the reporting year within each school, details of …”[11]
information that he then grouped under the headings General Information, Staffing Information, Social Disadvantage Information, Enrolments, Outcomes, School Financial Information and Information Relating to Average Change. At [130] in Attachment A, we have set out that information as Dr Diamond grouped it. It was essentially the same information as he had set out in his letter of 7 March 2010.
[11] T documents; T6 at 17-18
On 15 April 2011, the authorised decision-maker advised Dr Diamond that she had:
“… identified electronic information stored in ACARA’s electronic database, capable of being produced as a written document, which is relevant to your request.
I have decided to wholly exempt this information from disclosure. …”[12]
[12] T documents; T7 at 20
She grouped four groups of information sought by Dr Diamond under the heading of “Data Exceptions”. When read with the description in his letter of 11 April 2011, they are:
“Outcomes
(r) the senior secondary outcomes including:
(i)-(iv)…
(v)the percentage of students who proceeded to university,
(vi)the percentage of students who are at TAFE or in vocational study,
(vii)the number of students in employment
…
Information related to average change (i.e., gains or decrements)
(ai)each of the following items of information in numerical form, provided that ACARA maintain the information in numerical form as opposed to keeping it only in pre-created graphical form: student gains in achievement in scores for reading, writing, numeracy, and grammar and punctuation.”
The authorised decision-maker’s decisions, for which she gave her reasons, were:
“… [E]verything except the Data Exceptions, is not a valid request under the FOI Act, as it is public information.
As an alternative, and in addition to my decision noted above, I also make the decision that all the data you have requested, with the exception of the Data Exceptions, in the form that you have requested it (electronic tabular form), is exempt under s 47B(a) and s 47E(a), (b) and (d) of the FOI Act. My reasons for this are set out … below.”[13]
[13] T documents; T7 at 23
ACARA’s decision on internal review
On internal review of the decision on 10 June 2011, ACARA’s Chief Executive Officer (CEO) came to the same decision. That was that the information stored in ACARA’s electronic database that was capable of being produced as a written document and relevant to Dr Diamond’s request was wholly exempt from disclosure. The CEO set out his reasons for reaching his decision.[14]
[14] T documents; T9 at 37-48
THE INFORMATION COMMISSIONER’S DECISION ON REVIEW
The Freedom of Information Commissioner’s decision
The FIC reviewed ACARA’s decision and, on 22 May 2013 decided to:
“… set aside ACARA’s decision of 10 June 2011 and decide, in substitution for that decision, that the documents sought are exempt except for the lists of schools for which results were reported on My School in each of 2008, 2009 and 2010.”[15]
[15] Re Diamond and Australian Curriculum Assessment and Reporting Authority [2013] AICmr 57
In reaching this decision, the FIC decided in relation to the claim for exemption under s 47B:
“With one exception (discussed below), I am satisfied that disclosure in this case would cause damage to relations between the Commonwealth and the States in the following ways – each is given as an example in the Guidelines: …
·adversely affecting the administration of a continuing Commonwealth-State program
·substantially impairing a Commonwealth-State program …
·adversely affecting the continued level of trust or cooperation in existing inter-office relationships …
·impairing or prejudicing the flow of information to and from the Commonwealth …
The States provide the Commonwealth with the data upon which My School relies. I consider that there is a real risk that the States will withdraw from the program, making the My School program untenable, if that data is released in the form sought by Dr Diamond.”[16]
[16] [2013] AICmr 57 at [35]-[36] (citations omitted)
This meant that the FIC found that, with one exception, the documents requested were conditionally exempt under s 47B of the FOI Act. In considering the public interest test under s 11A(5), the FIC accepted that “… there is a real risk that the States will withdraw from the My School program, making the program untenable. …”[17] He continued:
“There is clearly a great deal of public interest in the My School information being made available. It is regrettable that it cannot be made available in a more accessible form without threatening the viability of the program itself.
In weighing the public interest, I consider that the continued cooperation of the States in providing data so that My School can continue to be a useful public resource, albeit in a restricted way, outweighs the public interest in the information being provided in a more accessible form.
…
Giving Dr Diamond access to the documents the subject of this IC review (except for the lists of schools for which results were reported) would, on balance, be contrary to the public interest.”[18]
[17] [2013] AICmr 57 at [52]
[18] [2013] AICmr 57 at [54]-[56]
The exception to which the FIC referred related to the disclosure of schools for which results were published. Their disclosure would not, or could not reasonably be expected to, damage relations between the Commonwealth and a State, the FIC found. Therefore, the lists of schools for which results were reported on My School in each of 2008, 2009 and 2010 were not conditionally exempt under s 47B.
The FIC went on to consider s 47E of the FOI Act in relation to the disclosure of the schools for which results were published. He said in his reasons for decision:
“ACARA argues that the documents sought by Dr Diamond were exempt under ss 47E(b) and (d) of the FOI Act on the basis that disclosure would:
·prejudice the attainment of the objects of the NAPLAN tests (s 47E(b))
·have a substantial adverse effect on the proper and efficient conduct of ACARA’s operations (s 47E(d)).
I do not consider that disclosure of the lists of schools would have the effect claimed by ACARA.”[19]
[19] [2013] AICmr 57 at [45]-[46]
The FIC considered Dr Diamond’s request that the information he requested be presented electronically in a particular format:
“58. Dr Diamond’s request was for information in ‘electronic tabular form’; ‘a database extract, or copy of the relevant database tables with irrelevant fields eliminated’. Section 20(2) of the FOI provides that, subject to s 20(3) and s 22, ‘where the applicant has requested access in a particular form, access shall be given in that form’. (Section 20(3) does not apply in this case.)
59. ACARA should now provide Dr Diamond with a copy of its database, modified under s 22 by the deletion of the exempt material: that is, a subset of its database containing just the lists of schools for which results were reported. Written lists of those schools, generated from ACARA’s database, would not satisfy Dr Diamond’s request because s 17 does not apply..[26]”[20]
[20] [2013] AICmr 57 FN 26 reads “See [19]–[22] above. Of course, it is open to Dr Diamond to accept written lists of the schools but, if he does not accept them in that form, ACARA must provide them electronically.”
On 22 August 2013, ACARA implemented the FIC’s decision by giving Dr Diamond an electronic list of schools for which results were published on the My School website in 2008, 2009 and 2010.
THE ISSUES
After lodging an application for review of the FIC’s decision, Dr Diamond agreed with ACARA to limit the scope of the review in this Tribunal in the following ways:
“(a) the only document in issue is the ‘My School website database’ referred to in para B in Tribunal document T22 (page 209 of the Tribunal documents).
(b)in the event that the Tribunal is satisfied that the document is conditionally exempt, I concede that the public interest test in s 11A(5) of the Freedom of Information Act 1982 is met.
To remove any doubt, notwithstanding 2(b) above, in the event that the Tribunal is satisfied that the document is conditionally exempt, I would still ask the Tribunal to consider how s 22 (Access to edited copies with exempt or irrelevant matter deleted) might be applied so as to provide for maximum access to any non-exempt matter in the document.”[21]
[21] Letter dated 20 September 2013 written by Dr Diamond to ACARA and copied to the Tribunal.
ACARA claims that the document in issue – the My School website database – is conditionally exempt under s 47B(a) or, if not, under ss 47E(b) or (d) on the following bases:
(1)section 47B(a) because its disclosure would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State; or
(2)if it does not:
(a)section 47E(b) because its disclosure would, or could reasonably be expected to, prejudice the conduct of tests or examinations – namely NAPLAN testing; or
(b)section 47E(d) because its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of operations of an agency.
FORM IN WHICH INFORMATION ACCESSIBLE ON MY SCHOOL WEBSITE
It was agreed between the parties that Dr Diamond’s description of the way in which data is extracted from the My School database by means of the My School website is accurate. They also agreed that the three documents he prepared provide a visual representation of the process.[22] We have based our findings in this section on that material.
[22] Exhibits F, G and H
The My School database is maintained in an electronic form by another entity which has a contractual arrangement with ACARA. Without an appropriate application to process the data on that database, it is incomprehensible to the human reader. The data comprises a single table or collection of tables. When it is reproduced in a form that is comprehensible to a human reader, it may be presented in a number of different ways. One of those ways is as a “flat file”. We adopt Dr Diamond’s representation of how that might look in relation to data maintained on the My School database:[23]
[23] The data is representational only and we have not checked its accuracy.
A
B
C
D
E
F
G
H
1
School Name
Sector
Type
Location
Years
Enrolments
Boys
Girls
2
A B Patterson College
Non-government
Combined
Metropolitan
U.Prep-12
1361
666
695
3
Abbotsfield Primary School
Government
Primary
Metropolitan
Prep-6
87
39
48
4
Aberfoyle Park High School
Government
Secondary
Metropolitan
8-12
1112
535
577
…
10232 schools not shown
10236
Zig Zag Public School
Government
Primary
Provincial
K-6
45
19
26
10237
Zillmere State School
Government
Primary
Metropolitan
Prep-7
94
37
57
10238
A user gains access to the My School website through a web browser. The user is then asked to identify the school about which information is sought by filling in the name of the school on an electronic template. That electronic template resides on ACARA’s web server and provides the framework within which to present the electronic document to the user’s web browser for display. When the name of the school is inserted into the template, records are extracted from the My School database and merged with the electronic template. There then exists a complete web page but it remains in electronic form at this stage and resides on ACARA’s web server. It resides there only fleetingly for it is then transmitted by ACARA as a web page to the computer screen of the user who requested the information. Embedded in the web page is the electronic template document populated with the relevant data from the database together with other data that permits the user’s web browser to display the electronic data in a form that is readable by the user. Taking Kingston High School as an example, the record extracted from the database appears in the flat file format used to populate an electronic template. The two documents can be represented as:
A
B
C
D
E
F
G
H
I
J
1
ACARA School ID
School Name
Sector
Type
Location
Years
Enrolments
Boys
Girls
Teaching staff
…
numerous schools not shown
4810
Kingston High School
Government
Secondary
Metropolitan
7-10
607
324
283
51
…
numerous schools not shown
Kingston High School
School facts 2010
School Sector Government School type Secondary Year range 7-10 Total enrolments 607 Location Metropolitan Students 2010
Total enrolments 607 Boys 324 Girls 283
THE EVIDENCE
List of schools as appearing on My School website
At or about the same time that ACARA gave Dr Diamond the list of schools as decided by the FIC, it published that information on its website. The publication was authorised by Mr Robert Randall, who is ACARA’s Chief Executive Officer.[24] We will set out only the first and the last four schools appearing on that list to give a flavour of the list as it appears in readable form:[25]
[24] See further [152] below
[25] Exhibit C
2012 ACARA School list
ACARA School ID
School Name
Suburb
Post Code
State/Territory
School Type
48096
A B Paterson College
Arundel
4214
QLD
Combined
44370
Abbotsford Primary School
Abbotsford
3067
VIC
Primary
40987
Abbotsford Public School
Abbotsford
2046
NSW
Primary
43762
Abbotsleigh
Wahroonga
2076
NSW
Combined
…
40229
Zeehan Primary School
Zeehan
7469
TAS
Primary
44746
Zeerust Primary School
Zeerust
3634
VIC
Primary
43062
Zig Zag Public School
Lithgow
2790
NSW
Primary
46599
Zillmere State School
Zillmere
4034
QLD
Primary
We note that Exhibit D is a screen shot of a list of schools that has been downloaded from the My School website. It shows a list of schools for 2008, 2009 and 2010 and is in a form similar to that seen in Exhibit C.
Mr Randall agreed, as do we, that the list reveals more information than the FIC required ACARA to give Dr Diamond in response to his request. There was no need to do more than list the names of the schools. Mr Randall said in cross-examination by Dr Diamond, and we accept, that he had advised the relevant State and Territory authorities and other interested parties and advisory groups that ACARA would publish that information. Whether he consulted them, however, was not a matter that he could recall one way or the other. He did not consider that either failure to consult or the release of the additional information would damage ACARA’s relations with the States and Territories. Release had not impeded ACARA’s capacity to perform its functions.
In response to a question by Dr Diamond, Mr Randall said that he did not believe that the addition of information to the list identifying each school as metropolitan, regional or remote would lead to the consequence that any school would withdraw from, or boycott, NAPLAN. He believed that there would be no consequence of that type if the list were to show whether the school was a government or a non-government school.
In response to re-examination by Mr Davidson, Mr Randall said that there was a proposal to develop a list of schools on the My School website but ACARA would not proceed with that proposal without first escalating it to the appropriate level. It would have regard to any views it received regarding its proposal from the States and Territories as well as from the National Catholic Education Commission (NCEC) and the Independent Schools Council of Australia (ICSA). Mr Randall would then decide what he should do within the terms of his authority. He would decide whether the proposal was accepted or should be taken up to the Standing Council. Mr Randall emphasised that the exercise is a collaborative one undertaken in partnership with the States and Territories.
Dr Diamond drew Mr Randall’s attention to ACARA’s Terms of Use. We have summarised its terms at [204]-[206] below. It requires users of the My School website to agree that, unless they have ACARA’s written permission to do otherwise, they will not use the website or its content contrary to those terms.
Data available from The Australian newspaper’s Your School website
Mr Randall agreed with Dr Diamond that articles published in The Australian on 7-8 April 2012 and 1-2 June 2013[26] appear to be in breach of the Terms of Use. They appear at Exhibits H and I. Complementing its article, The Australian has a website called “Your School”. Exhibit K is a screen shot of the way certain information appearing on the Your School website. The information displayed in the screen shot begins with an explanation:
“The Australian presents information on almost 10,000 schools in every state and territory, providing snapshots of key characteristics and easy evaluation of school performance. Search for a school name, by area or postcode, or browse all schools with your own search parameters. You can choose your own list of schools to compare, which is automatically saved for your next visit.”
[26] Exhibits H and I
On the same screen shot, the user is directed to other links addressing the questions “What is NAPLAN data?”, “How do I interpret a school’s score?”, “Why is some data not available?” and “Are we missing a school? Let us know.” The user is given a choice of whether to search for schools or to browse all schools. The choice was made to browse all schools. There then appear to be choices that have to be made. The range of choices is not clear from Exhibit K. What is clear is that choices have been made to display all schools in all regions in New South Wales and to do so by reference to their Total Average Score. In relation to the last choice, the website states:
“The average scores are a guide only and not intended for ranking schools. Some schools are missing data for some Year levels or have very small enrolments, which affects their average score. Learn more.”
The user is also invited to compare schools by clicking the “Compare” button located next to the entry relating to each school. Up to five primary and five secondary schools can be added in order to compare their performance with the particular school to which an entry relates.
The screen shot in Exhibit K shows that 2,462 results were returned in response to the request. We will set out the first five to give a flavour of the results:
AVERAGE TOTAL
SCHOOL NAME
SECTOR
ICSEA
COMPARE
574.60
Sydney Grammar School, Edgecliff Preparatory School
Paddington, NSWNon-Gov
1272
+ COMPARE
571.00
Sydney Grammar School, St Ives Preparatory School
St Ives, NSWNon-Gov
1282
+ COMPARE
552.60
Broadwater Public School
Broadwater, NSWGov
1032
+ COMPARE
548.75
St Mary’s Cathedral College
Sydney, NSWNon-Gov
1105
+ COMPARE
546.50
Abbotsleigh
Wahroonga, NSWNon-Gov
1219
+ COMPARE
Mr Randall said that ACARA has written to The Australian regarding the matter as it found the aggregation of data problematic. It had suggested ways in which the information could be placed in a context based forum. The Australian has not agreed to cease future publication. It has not instituted legal proceedings against The Australian in relation to its breach. ACARA has not offered data to The Australian and, although he could not say, Mr Randall thought that it appeared that it had obtained its data from the My School website.
Mr Randall was not aware of any schools that had withdrawn from NAPLAN testing as a result of the publication of the articles in The Australian. Each year ACARA has continued to fulfil its obligations in relation to NAPLAN testing. Mr Randall is aware, though, that there has been a slight upward trend in schools and students, together with their parents, withdrawing from the NAPLAN testing process. The statistical evidence supports that trend.[27] It is also supported by anecdotal evidence including feedback from parents. The withdrawal rate is small but it is increasing. If schools and students take that action, Mr Randall said, the data obtained from NAPLAN is brought into question.
[27] Exhibit 4
Other material in the articles published by The Australian
In the feature on “Your School” published in The Australian on June 1-2 2013, there were various contributions. Among them was a contribution from the then Prime Minister, Ms Julia Gillard. She wrote about the funding offered by the Commonwealth to the States and Territories and also included a passage on NAPLAN:
“ Until a few years ago, we didn’t know about these schools’ performance. Parents relied on word of mouth on limited data such as Year 12 results. Today, thanks to NAPLAN, My School and international tests such as PISA, we know how every school in the nation is travelling.
As minister and Prime Minister, I’ve fought hard for this kind of data to be available, and this is why we can now have this sophisticated policy discussion based on fact, not on anecdote, conjecture or blind ideology. Those facts tell us two important things. First, our funding model is broken. So while there are some disadvantaged schools that do well in heroic circumstances, overwhelmingly there is a huge achievement gap between advantaged and disadvantaged school children. Also, past tinkering with funding formulas means schools that teach children with similar needs get different levels of funding.
…
That’s why under our National Plan for School improvement, schools will be properly funded under a new and fairer system based on the needs of every student in every classroom. This will support higher standards and better results.”[28]
[28] Exhibit I at 7
The same feature article from The Australian also included a contribution written by Mr Barry McGaw, who is ACARA’s Chair. Under the headline “A test to suit 21st century” appears the summary “The NAPLAN program will evolve to meet the needs of all stakeholders”.[29] Mr McGaw then outlined the 25 year history of the development and refinement of testing leading to NAPLAN. He went on to talk about changes that were planned so that NAPLAN enabled better measurement of achievement.
[29] Exhibit I at 6
Concerns about nature of data available from My School website
Dr Jennifer Donovan, who is the General Manager, Strategic Information and Reporting (General Manager), of the New South Wales Department of Education and Communities (NSW Department),[30] is a member of the National Assessment, Data, Analysis and Reporting Reference Group (NADAR). Part of the ongoing work of NADAR requires it to examine, discuss and suggest improvements to My School.
[30] See further at [40] below
Speaking in her role as General Manager, Dr Donovan said that her NSW Department supported the concept of My School. From the outset, however, it was concerned about the delivery and presentation of the data on the website. It was mindful of the risk of harm to schools and students if the data were used to generate tables ranking schools in particular geographical areas by using their aggregated NAPLAN scores. She referred to tables of that sort as “league tables”. There is also a risk of harm if schools or their students are labelled as “the worst” or as “underperforming”. Those risks were not treated lightly for labelling of that sort had occurred in the past. Dr Donovan referred to an article appearing on 8 January 1997 in the Daily Telegraph. It printed a picture of Mt Druitt High School’s Year 12 class under the headline “HSC: The Final Score The class we failed”. It later described them as “… the class that society and the education system failed” but only after describing them as “… students whose TER results were so low they are virtually useless for further education” and stating that the “School’s best HSC student scored 44.4 out of 100”.[31] That article led to an amendment to the Education Act 1990(NSW) in 1997. An examination of the history of the provision shows that s 18A was first inserted by the Education Reform Amendment Act 1997(NSW)[32] in the then Education Reform Act 1990 (NSW).[33] It has since been further amended and the legislation renamed to the Education Act 1990 (NSW). Following that amendment, s 18A(3) then read:
“School results must not be publicly revealed in a way that ranks or otherwise compares the results of particular schools, except as authorised by or under a national agreement.”[34]
[31] Exhibit 3; Annexure JAD-1
[32] Section 3, Schedule 3, Item 3
[33] Section 18A(3) then read: “Despite anything else in this section, the Minister is to report to Parliament detailed information about the results so as to allow meaningful and substantial analysis of the effectiveness of schooling in achieving the aims of this Act and the government. The information should allow analysis of the effectiveness of all categories of schools and of government education provision for all students, including categories of students identified as in need of special provision.”
[34] Education Reform Amendment Act 1997 (NSW); Schedule 1, Item 1
Dr Donovan said that publicity of the sort that had surrounded the Mt Druitt Year 12 Class of 1996 and fear that it would return under My School led all sectors in education to be most concerned that My School adopted proper safeguards to ensure that data would be presented fairly and with appropriate contextual information. An article appearing in The Sydney Morning Herald on 29 January 2010 referred to the publicity regarding Mt Druitt and concerns expressed by the President of the New South Wales Principals Council, the Principal of a High School and a Senior Lecturer from the University of Sydney lest My School exposed schools to unfair comparisons causing damage.[35]
[35] Exhibit 3; Annexure JAD-2
Dr Donovan also said of the presentation of the information on My School:
“… My School contextualises NAPLAN data it presents with reference to ICSEA, student population and other relevant factors. The landing page for each school includes a free text box which the principal of that school is responsible for populating. My School presents contextual data at each point during searches performed on it. It also allows users to track the progress of a school cohort by showing that cohort’s literacy and numeracy scores change, relative to students at other schools, over a given testing period.
Data presented in accordance with paragraph 17 above is a much more important and significant indicator of a school’s health than its position in any annual league table. The latter would be inappropriately simplistic.
My School’s data presentation and functionality are direct results of negotiations between the jurisdictions and the Commonwealth government. My School does not generate a spreadsheet of raw data on each school. Instead, and in comparison, My School has a restricted search and comparison functionality. This is deliberate. It is also consistent with the intentions of the jurisdictions supplying data for inclusion in My School.”[36]
[36] Exhibit 3 at [17]-[19]
Expectations of New South Wales Department of ACARA’s data management
Dr Donovan said that the NSW Department entrusts ACARA with data which, if released improperly would trigger concerns that simplistic league tables would be published and that those tables would harm schools and students as occurred with Mt Druitt High School. It expects ACARA to manage NAPLAN data in accordance with the Principles and Protocols for Reporting on Schooling in Australia dated June 2009. We have set out details of that document at [165]-[173] below. The NSW Department also expects ACARA to act consistently with its own document entitled “Data access protocols for data managed by ACARA” dated 2012. That document has been endorsed by the Standing Council and we have referred to its content at [177]-[189] below. All of those in the various school and education sectors recognise that My School is valuable to various interests including those undertaking research. Therefore, they support access but only if the principles and protocols in these two documents are followed. Dr Donovan added:
“… The NSW Department has a clear and strong expectation that ACARA will not release My School data outside of the process laid down in the Data Access Protocols.”[37]
Potential effect on New South Wales/Commonwealth relationship if My School database released and on collection of NAPLAN data
[37] Exhibit 3 at [24]
Dr Donovan said that, were data from the My School database ultimately used to create league tables, those responsible in New South Wales for providing data would see their supplying it as a trigger for those tables. They would regard them as an improper use of the information as would the NSW Department. Dr Donovan had no doubt that this, in turn, would adversely impact upon the New South Wales government’s relationship with ACARA. The trust presently placed in ACARA would be significantly eroded.
Data would continue to be provided to ACARA to some extent because the States and Territories have obligations to provide some data because their funding is tied to it under the National Education Reform Agreement dated 23 April 2013 (Education Reform
Agreement). Under cl 30.h of that Agreement, the States and Territories must:
“… provide the required financial and student data from the government systems to the relevant national education body and ensure that it is of the quality agreed by the relevant Standing Council.”
Under cl 55, they must:
“… commit to continue effort in existing reform areas:
a.national reporting of performance data
b.provide school-level information as agreed by the SCSEEC [Standing Council] for the My School website; …
c.…”[38]
[38] Exhibit 3; Annexure JAD-5
The requirements under the Education Reform Agreement are not legislative and the States and Territories could refuse to comply, Dr Donovan said. Furthermore, contrary to their current willingness to assist ACARA and the Commonwealth, they could refuse to provide more than the bare minimum of assistance. They could refuse to provide anything more than they are required to give under the Education Reform Agreement. Data would be provided on a piecemeal basis to ACARA. There would also be an erosion of the willingness to provide information relating to other projects the Commonwealth wishes to undertake at a national level. That work relates to matters such as exit interviews for students, teacher qualifications and improvements in the management of attendance data.
At the school level, Dr Donovan said that she is aware of teaching staff and principals who are concerned about the potential misuse of NAPLAN data. She also pointed to an article in The Sydney Morning Herald dated 5 May 2010 in which it was reported that a number of schools were implementing a teacher ban on NAPLAN tests in their schools. Among the concerns reported in the article were “… ‘strong professional and widespread philosophical objections’ to the way that NAPLAN test data was being used to create league tables. …”.[39] Others did not want the school curriculum to be narrowed to NAPLAN tests. The article also referred to those who did not oppose the NAPLAN tests saying that parents are smart enough to make up their own minds and that a lot more is involved in choosing a school than looking at league tables.
[39] Exhibit 3; Annexure JAD-6 at 1
Dr Donovan said that widespread boycotting of NAPLAN assessments would render NAPLAN data useless. Teachers used that data extensively to inform their planning, validate their judgments and identify particular issues with student learning. The fact that NAPLAN data is already available through the My School website does not alter her view because it is fundamentally important that it be presented carefully and in a way that provides a contextual understanding of the data and minimises the preparation of simplistic league tables. The My School website provides these safeguards.
Potential effect on Commonwealth relationship with other States and Territories if My School database released and on collection of NAPLAN data
Attached to Dr Donovan’s affidavit are letters from four State[40] and two Territory Departments of Education, the Commonwealth’s Department of Education, ISCA and NCEC. Each addresses the release, in electronic form, of data from My School. She has set out New South Wales’ position and we have summarised it above. We will set out passages from the correspondence:
[40] Queensland, South Australia, Tasmania and Western Australia,
(1)“In 2008 (2008-00292) and 2010 (2010-00219), the Department was forced to seek an order from the Western Australian Industrial Relations Commission (WAIRC) to lift bans on the administration of NAPLAN imposed by the State School Teachers’ Union of Western Australia (SSTUWA). In 2010, the SSTUWA ban was in response to an Australian Education Union decision to declare a national moratorium on the implementation of NAPLAN as part of the ‘Stop League Tables’ campaign. The primary concern of the unions was the ‘inappropriate use of NAPLAN testing data to compile misleading league tables which unfairly purport to represent school performance’. The WAIRC decision made specific reference to the need for the respondent’s grievances; in particular, third party usage of the NAPLAN testing data, to be further addressed.”[41]
[41] Department of Education, Western Australia dated 23 October 2013: Exhibit 3; Annexure JAD-7 at 1 (Letter from Sharyn O’Neill, Director-General, to Peter Matheson, Board Secretary, Office of the CEO, ACARA and dated 23 October 2013.)
(2)“The Department is also under the understanding that it has only granted ACARA permission to release data in relation to its students in accordance with the protocols that have been established. Release of data outside of these protocols is likely to compromise the Department’s willingness to provide the data.”[42]
[42] Department of Education, Western Australia: Exhibit 3: Annexure JAD-7 at 2 (Letter dated 23 October 2013 referred to in FN 39).
(3)“Great effort has been made by Tasmania to improve its data collection resulting in a comprehensive set of student data. This data is considered to be very sensitive and parents provide this data on the basis that it will be treated confidentially.
There is an increased awareness by the public over the sensitivity and value of data hence the need to ensure appropriate management protocols are in place to protect the confidentiality of this data.
Either a perceived or actual failure to maintain confidentiality of student related data would have a significant impact on the department’s data sets. This impact includes:
· a significant increase in the number of enrolments without complete student or parental data
· the accuracy of the data provided will be less reliable due to parents not providing correct information given their concerns around the use of that information.
This would lead to difficulties not only with NAPLAN test data but there would also be significant issues for the teachers and schools supporting their students. The department considers that a loss of public confidence in the collection and management of NAPLAN data would result in a significant number of students being withdrawn from testing and thereby impacting on the ability of teachers, schools and systems to receive nationally consistent data that is important to support student achievement.
In addition, a loss of data will impact significantly on the department’s strategic planning and its ability to resource schools appropriately.
Apart from the strategic and operational issues it is critical for parents to provide information about their child such as medical information. Failure to obtain this key information could introduce serious risks for individual students.”[43]
[43] Department of Education, Tasmania dated 15 October 2013: Exhibit 3; Annexure JAD-7 at 2-3 (Letter dated 15 October 2013 from Colin Petit, Secretary, to Mr Rob Randall, CEO, ACARA)
(4)“Tasmania, along with other jurisdictions, currently provides NAPLAN and other data sets to ACARA under well established and commonly agreed understandings about the intended use of these data. There are also agreed understandings about the imperative need to maintain the privacy and confidentiality of these data. Tasmania acknowledges that MySchool reporting does not include individual student data.
These agreements rely very heavily on the transfer of data between governments to inform policy development, system performance and resourcing. A decrease in the completeness and accuracy of these data will be a significant issue for all governments.
If governments consider that the data they provide to other governments will be released to external parties, it is not unreasonable to expect that governments will reconsider what data is provided. This potentially will reduce inter-governmental collaboration with subsequent impacts on informed policy development.”[44]
[44] Department of Education, Tasmania: Exhibit 3; Annexure JAD-7 at 3 (Letter referred to in FN 41 above).
(5)“The releasing of all My School data by ACARA in another form, such as that requested by Dr Diamond, could affect the Department of Education, Training and Employment’s operations by:
·impacting adversely on management of personnel;
·prejudicing the effectiveness of procedures for conducting NAPLAN tests; and/or
·biasing collections that result in data provided to ACARA for display on My School.
Queensland continues to support the agreed protocols and processes for releasing data held by ACARA for research and other purposes. The processes and agreements reached with all states and territories appropriately balance the public’s right to this information, the appropriate guidance regarding interpretation and the cost to states and territories of providing such information.”[45]
[45] Department of Education, Training and Employment, Queensland dated 21 October 2013; Exhibit 3; Annexure JAD-7 at 1 (Letter dated 21 October 2013 from Dr Jim Watterston, Director-General, to Mr Robert Randall, CEO, ACARA)
(6)“South Australia provides data to ACARA on the basis of ACARA’s adherence to the Principles and protocols for reporting on schooling in Australia agreed to by education ministers at the then Ministerial Council on Education, Employment, Training and Youth Affairs in June 2009.
In acknowledgement of the significant concerns of stakeholders regarding the My School website, jurisdictions agreed to the release of data based on these principles and protocols. The principles and protocols provide the basis for ensuring that public reporting of data is fair and accurate and that there are strategies in place to manage the risk that third parties may seek to produce simplistic league tables or rankings.
If the data requested were to be released, this would significantly undermine the relationship between South Australia, ACARA and the Australian Government in relation to the handling of sensitive data sets. In addition it would create tensions in the relationships between school sectors in South Australia and between the state office and public school sites.
In South Australia, the test administration authority for NAPLAN sits within the Department for Education and Child Development, with agreements in place with the Independent and Catholic education sectors. This arrangement is based on the good working relationships between sectors in South Australia. The agreements include obligations regarding disclosure of data that can be used to compare students, schools or sectors and the confidentiality and security of student and school enrolment data provided to the department. South Australia provides data from the non-government sector to ACARA based on the understanding that this data will be managed in accordance with the abovementioned principles and protocols.
Release of the data also has the potential to result in industrial disputes that could see South Australian public schools withdrawing from NAPLAN testing if the data is not being managed in accordance with the principles and protocols that require fair and accurate reporting. South Australia has significant concerns regarding the potential misrepresentation of school communities and possible identification of students at some smaller schools even with aggregate level data.
In addition, the release of data may jeopardise the progress of other work with ACARA such as progressing the national online assessment capability.”[46]
[46] Department of Education and Child Development dated 17 October 2013: Exhibit 3; Annexure JAD-7 at 1-2 (Letter dated 17 October 2013 from Tony Harrison, Chief Executive, to Mr Rob Randall, CEO, ACARA)
(7)“Of most concern to our department is ensuring the privacy of individuals is maintained and that data as supplied is used appropriately as was originally intended. It is therefore important that the agreed protocols are maintained in the interests of schools, students and the community, in accordance with the ‘Principles and Protocols for reporting on Schooling in Australia’.
…
The small sample sizes of some data in remote locations of the Northern Territory risks individuals and communities being readily identified. In these communities, student engagement, a precursor to NAPLAN success, requires a high degree of community support. There is a strong reliance on partnerships between communities and the department to ensure improvements made, have community support. Any identification could impact on the community making it difficult to gain the confidence and trust for any further improvements.”[47]
[47] Department of Education, Northern Territory dated 25 October 2013 : Exhibit 3; Annexure JAD-7 at 1-2 (Letter dated 25 October 2013 from Catherine Weber, Deputy Chief Executive Organisational Services, to Mr Robert Randall, CEO, ACARA)
(8)“The Directorate does not support release of this information in any format other than the format in which it was originally released, as doing so may jeopardise the integrity and contextualisation of the data. The Directorate currently supplies data to ACARA on the understanding it is done with the protection of the ACARA Data Access Protocols. Releasing My School data in electronic form under a Freedom of Information (FOI) request would remove this protection. The Directorate is concerned that this could facilitate the production of school league tables and potentially identify, or lead to the identification of, individual students.
The Directorate acknowledges the importance of the My School website as a resource for Australian families seeking statistical and contextual information about their local schools, and also to consolidate education data from schools across Australia. The Directorate supports the determination, made by the Commonwealth Freedom of Information Commissioner (22 May 2013), that release of data in the form sought by Dr Diamond may result in states withdrawing from the My School program, making the program untenable.
The Directorate has no major concern with the release of non-NAPLAN data published on My School under FOI on the understanding that it is the aggregated data as appears on the website. The ACT does not generally release information in response to an FOI request in any form other than hard copy or PDF.”[48]
(9)“State and Territory education authorities and non-government systems and schools provide data to ACARA for publishing on My School based on a shared understanding of the purpose of providing the data and the way in which it is reported. There is a strong commitment by all education ministers, both federal and state, to oppose the publication of simplistic league tables. The Department considers that should the information requested be released there could be a breach of the protocols and potentially result in the construction of simplistic league tables.
Creating simplistic league tables from the release of the data could also cause damage to Commonwealth-state relations and there is a real risk that states and territories may withdraw from providing data to ACARA for the purposes of My School. This may result in states, territories, schools and parents being less willing to participate in future NAPLAN testing which forms a substantial part of the data contained in the My School website.”[49]
(10)“The Independent Schools Council of Australia has entered into a Standing Memoranda of Understanding with ACARA with the understanding that the Data Access Protocols, in supplementing the Principles and Protocols on Reporting on Schooling in Australia, are in place to ensure and safeguard that any third party data release aligns to the legal requirements and clearly defined processes to protect schools, students and their families from potential misuse of these data.”[50]
(11)“The NCEC is of the understanding that the Australian Curriculum, Assessment and Reporting Authority (ACARA) is bound by the rules and regulations as outlined in the Principles and Protocols on Reporting on Schooling in Australia/Data Access. This framework precludes ACARA from releasing Catholic schools’ NAPLAN and other associated data to unauthorised agencies. In so doing ACARA is abiding by an established protocol which provides clear guidance in the management of Catholic school data.
The NCEC is of the firm belief that it is important for these rules to continue to operate. Failure to comply with these protocols would very likely adversely affect the capacity and willingness of parents at Catholic schools to support Catholic schools to cooperate with ACARA, into the future. Cooperation from parents and Catholic schools is essential for the orderly and effective administration of NAPLAN testing.
The release of this data under Freedom of Information legislation has the potential to seriously undermine the confidence of the Catholic sector in the protocols which surround this process.
Given the ongoing media attention which continues to surround the NAPLAN testing regime, I believe this action has potential to seriously erode the confidence of the entire Catholic education community in relation to NAPLAN.”[51]
[48] Department of Education and Training, Australian Capital Territory dated 14 October 2013: Exhibit 3; Annexure JAD-7 at 1-2 (Letter dated 14 October 2013 of Diane Joseph, Director-General, to Mr Rob Randall, CEO, ACARA)
[49] Department of Education, Commonwealth dated 15 October 2013; Exhibit 3; Annexure JAD-7 at 1 (Letter dated 15 October 2013 from Tony Cook, Associate Secretary, to Mr Robert Randall, CEO, ACARA)
[50] ISCA dated 15 October 2013; Exhibit 3; Annexure JAD-7 at 2 (Letter dated 15 October 2013 from Bill Daniels, Executive Director, to Mr Robert Randall, CEO, ACARAI
[51] NCEC dated 2 October 2013; Exhibit 3; Annexure JAD-7 at 1-2 (Letter dated 2 October 2013 of Ross Fox, Executive Director, to Mr Robert Randall, CEO, ACARA)
Queensland’s publication of information
On a website with the URL the Queensland Studies Authority (QSA) has published NAPLAN reports for the years 2008 to 2013 showing Queensland student achievements in Years 3, 5, 7 and 9 on a school-by-school basis. Access to those can be gained by following the links provided in QSA’s website. Those annual reports take a tabular form and are called NAPLAN [relevant year] Outcomes.[52] Each school is listed in alphabetical order together with its locality. Information is given about each school by reference to each of Years 3, 5, 7 and 9. That information includes the enrolments for the year and the average score each school achieved in the NAPLAN assessments for each of those years in reading, writing, spelling, grammar and punctuation and numeracy. Under each score is a percentage figure representing the percentage of the school’s students in that particular Year and on that particular assessment achieved a result at or above the National Minimum Standard (NMS).
[52] Exhibits M and R
It is apparent from the website that, if a user wishes to download the data for the NAPLAN 2013 Outcomes electronically, it is possible to do so in either PDF or CSV form. It was agreed between the parties and we accept that, unlike the PDF form, the CSV form permits the user to copy the file and open it on his or her own computer using different programs to reorganise the data by reference to the user’s chosen parameters without regard to those of QSA. The way in which the data is presented is determined by the software program with which it is opened. If permitted by the software with which it is opened on the user’s own computer, the data may also be manipulated. Similar data for the years 2008 to 2012 is available only in PDF. That data is not manipulable or alterable although, Dr Donovan said, the data could be copied onto a spreadsheet without downloading the data. Once copied, that data would then be alterable and manipulable depending on the software used.
Dr Donovan described the information appearing in QSA’s NAPLAN 2013 Outcomes as information at the granular level. It is what would be described as a simplistic league table. It provides information without reference to any contextual information.
CONSIDERATION
What is a “document”?
A. The submissions
After setting out diagrammatic representations of the way in which data is stored on the My School database, Dr Diamond pointed to the correspondence, in substance, between the web pages published through the My School website and all of the nominal “rows” of the My School database. He also pointed to the substantive correspondence between the notional “columns” of the My School database and the information appearing on the My School web page. He depicted that in diagrammatic form that looked something like the following table where Dr Diamond referred to the shaded row and shaded column as illustrative of his submission:
A
B
C
D
E
F
G
H
1
School Name
Sector
Type
Location
Years
Enrolments
Boys
Girls
2
A B Patterson College
Non-government
Combined
Metropolitan
U.Prep-12
1361
666
695
3
Abbotsfield Primary School
Government
Primary
Metropolitan
Prep-6
87
39
48
4
Aberfoyle Park High School
Government
Secondary
Metropolitan
8-12
1112
535
577
…
10232 schools not shown
10236
Zig Zag Public School
Government
Primary
Provincial
K-6
45
19
26
10237
Zillmere State School
Government
Primary
Metropolitan
Prep-7
94
37
57
10238
Dr Diamond went on to submit that both the notional tabular form of the data held in the database and that appearing in the webpage form correspond to the documents that he has requested. The data held in the database and that in the webpage form are, Dr Diamond continued, but a single document with different manifestations. He drew a comparison between the data held in the two forms with a book in print form and in electronic form on an e-reader. The book in one form is essentially the same document as the book in the other form. Each row of data, representing data relating to a particular school, is a record of information and so a “document” as that word is defined in s 4(1) of the FOI Act. That is also true for each column of data, Dr Diamond submitted.
Mr Davidson refuted Dr Diamond’s submission saying that it is inconsistent with the meaning of “document” in the FOI Act. He submitted that it is apparent from the definition of the word “document” that a document is the physical embodiment of the information (i.e. the piece of paper, the book, the electronic file in the digital device and so on) rather than the information itself. There may be multiple documents with the same content but they remain distinct documents.
B.Consideration
B.1What is a “document”?
In Attachment B, we have outlined the framework of the provisions governing access to documents under the FOI Act. Although the objects of the FOI Act are framed in terms of giving the Australian community “access to information”, Parliament has framed only one of the two ways in which it will achieve those objects in terms of information. The other is framed in terms of documents. That framed in terms of information is found in the obligation imposed on agencies to publish information. That obligation appears in s 3(1)(a). That framed in terms of documents is found in s 3(1)(b) and refers to provision being made for “… a right of access to documents.”[53]
[53] FOI Act; s 3(1)
Section 3(1) neither imposes obligations nor creates rights. The right to access is created in s 11. That provision clearly frames the right in terms of a right of access to a “document”. It is not an unqualified right. Section 11 expressly states one qualification. That excludes from the right of access those documents that are exempt documents. Section 11 does not exempt information but documents. Certainly, identification of a document as an exempt document requires an examination of the information in that document. An official document of a Minister, for example, requires an examination of the information it contains in order to determine if it contains some matter that does not relate to the affairs of an agency or of a Department of State.[54] Documents exempt by virtue of s 7 also require an examination of the information in the document whether it be to examine the agency from which it originated or from which it was received or to determine whether the information is of the sorts specified in that provision. The same is true of those documents that are exempt, or conditionally exempt, by virtue of Part IV of the FOI Act. The exemption is expressed in terms of a document but the content of that document must be examined whether to determine the character of the document[55] or whether to determine that disclosure under the FOI Act of the information it contains would have the consequence described in one or other of the exemption provisions.
[54] Paragraph (c) of definition of “exempt document”: FOI Act; s 4(1)
[55] Section 34(1)(b) would, for example, require an examination of the information in the document in so far as it is necessary to determine that the document “… is an official record of the Cabinet” and s 34(5) would require an examination of that information in order to determine that the document was not that by which a Cabinet decision was officially published. That latter examination would be necessary because a document officially publishing a Cabinet decision is not an exempt document.
The “document” to which reference is made is defined in inclusive terms in s 4(1). We have set it out in Attachment B below but will repeat it here:
“document includes:
(a)any of, or any part of any of, the following things:
(i)any paper or other material on which there is writing;
(ii)a map, plan, drawing or photograph;
(iii)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
(iv)any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;
(v)any article on which information has been stored or recorded, either mechanically or electronically;
(vi)any other record of information; or
(b)any copy, reproduction or duplicate of such a thing; or
(c)any part of such a copy, reproduction or duplicate;
but does not include:
(d)material maintained for reference purposes that is otherwise publicly available; or
(e)Cabinet notebooks.”
As the definition is written in inclusive terms, we have had regard first to the ordinary meaning of the word “document”. They are:
“… noun 1 any piece of writing of an official nature, eg a certificate. 2 computing a file of text produced and read by a computer, especially a word processor. …”[56]
[56] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
The definition of the word found in the FOI Act is drafted in much broader terms than that found in the dictionary. It extends beyond a piece of writing to encompass things that would not generally be thought of as a document in the community. We refer, for example to paper on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them. Given the time at which this part of the definition was drafted, a tape used to send messages by a telex machine would be a document within the meaning of the definition as would a notebook filled with symbols such as those made using Pitman’s Shorthand.[57] A map or photograph would generally be referred to as such in ordinary language but they also are documents for the purposes of the FOI Act[58] as are films or videos.[59] A computer disk on which information is stored electronically would be a document.[60]
[57] Paragraph (iii): FOI Act; s 4(1)
[58] Paragraph (ii): FOI Act; s 4(1)
[59] Paragraph (iv): FOI Act; s 4(1)
[60] Paragraph (v): FOI Act; s 4(1)
The dictionary definition refers specifically to a file of text produced and read by a computer. Although reference is made in paragraph (v) of the definition to electronic storage, the reference is to the article on which the information has been stored electronically. It is not a reference to the file of text produced and read by a computer. That file of text and the like is brought within the scope of the word “document” by paragraph (vi) of the definition of “document” in the FOI Act i.e. “a record of information”.
Among the ordinary meanings of the word “record”, when used as a noun, is the following:
“… 1 a formal written report or statement of facts, events or information. 2 (often records) information, facts, etc, collected usually over a fairly long period of time. … 8 computing in database systems: a subdivision of a file that can be treated as a single unit of stored information, consisting of a collection of related data or fields (see FIELD noun 16), each of which contains a particular item of information, eg a statistic, a piece of text, a name, address, etc …”.[61]
[61] Chambers
The breadth of these meanings suggests that Parliament wanted the word “document” to encompass any means by which information may be stored regardless of whether those means were known at the time the legislation was drafted or were not. All will depend on the evidence.
B.2Recognition that the document a person requests may contain information that is in addition to that sought by the person
While the right of access is expressed in terms of a right to certain documents and the way in which a person may exercise that right is expressed in s 15 in terms of a request for access to a document, the objects of the FOI Act recognise that, ultimately, it is all about access to information. The right has been expressed in terms of a document because, apart from obligations imposed under Part II of the FOI Act, Parliament intended that the right to information would extend only to that which was already held in documentary form by agencies and Ministers. That is clear from the structure of the FOI Act that we have outlined in Attachment B.
Parliament has also recognised that documents containing information that a person ultimately seeks may contain information that is unrelated to that person’s request. We refer to the obligation imposed on an agency or Minister by s 22 if that should be the case. An agency or Minister must prepare and give access to an edited copy of a document if the circumstances set out in s 22(1) apply.[62] We have set out those circumstances at [144]-[147] in Attachment B below. They arise if giving access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access. An agency or Minister must assess the document to determine if it is possible to prepare an edited copy from which that irrelevant material has been deleted and whether it is reasonably practicable to do so. An assessment must also be made of whether the person making the request would decline access to the edited copy. That assessment can be done by examining the request or consulting with the person. If the person would not decline the edited copy and the other circumstances have been met, the agency or Minister is obliged to give access to the edited copy.
[62] FOI Act; s 22(2)
Section 22 makes similar provision for a document that is an exempt document. The exemption provisions are framed in terms of consequences of disclosure of the document under the FOI Act. They are not focused on disclosure of particular passages of the document but on disclosure of a document that contains those particular passages. If the consequences fall within those described in one or other of the exemption provisions, the whole document is exempt regardless of whether disclosure of the remaining information in the document would not. Section 22 is obliged to make an edited copy and to give access to that edited copy if the circumstances set out in s 22(1) apply.
It is clear from the obligation imposed by s 22 and from the structure of the FOI Act generally that what amounts to a “document” is not determined by the way in which a person seeking access describes the document requested. The document a person requests may not exist. That does not mean that the request is refused for documents will be examined to ascertain whether the information that the person seeks is to be found in another document or part of a document. Section 22 provides for the situation in which only part of a document contains information relevant to the request. At no time, however, does it or the FOI Act generally permit an agency or Minister to treat information per se as a document or to treat a segment of a document as a document in its own right.
B.3Identification of the document in which information is found is determined by reference to its own characteristics
A person seeking access to a document will usually identify that document by reference to the information he or she wants it to contain. It will be a rare case in which a person can identify a particular document by an agency’s reference number because, perhaps, that reference has been given in another document provided to the person. The fact that a person requests information does not alter the fact that the request a person makes under s 15 of the FOI Act is a request for “access to the document”. It is not a request for access to information just as the right to access conferred by s 11 is not a right of access to information but a right of access to a document.
In practical terms, this means that the agency or Minister must search for the information. Given the breadth of the definition of a “document”, they are not limited by the format or media in which the information may be found. When they find the information, it may well be found amongst other information. When the information is found in paper form, it may be found in a file containing other sheets of paper all of which, some of which or only one of which contain the information that the person has requested. A decision will then be made as to what sheets of paper comprise the document in which the information is found. To say that the document is the particular sheet of paper on which the information is written is to apply the definition of “document” in a way that may meet the meaning of “any piece of writing of an official nature” but does not acknowledge the way in which the word is used in practice.
A letter, for example, may comprise a single page. If that is the case, it is a letter and also a document. It may comprise two or more pages. Each of those pages is a “piece of writing of an official nature” but to say that each page is a document is to suggest that a single letter is made up of other documents. That cannot be the way in which Parliament intended the word “document” to be understood. That is not to say that a fragment of a letter cannot be a document if the remainder of the letter cannot be located. It is a document but acknowledged to be an incomplete document. The paper file cover in which an agency or Minister keeps a letter is a document but that file is used to store a number of other letters. Taken as a whole, the paper file cover and the letters do not comprise a document because each is a distinct and complete piece of writing. Each may refer to another letter but they stand alone.
Similar reasoning can be applied to a document comprising various parts. A book, for example, may comprise a number of Chapters and, perhaps, an index, a Preface, publishing details and so on. To take a Chapter from the book, when the whole is available, and to describe it as a document is to recognise it as a “piece of writing” but to ignore its place in the whole and to ignore the fact that it is not intended to be read without its context i.e. the book. The document in that instance is the book. It may be that only a single Chapter is located by the agency or Minister. That single Chapter will then be regarded as a document because the whole is not available. It will be a fragment of a document but a document no less for the purposes of the FOI Act.
A similar outcome is reached if the information that a person seeks in a request is found in paper form as an attachment to, for example, a report. It may be a single attachment or one of a number. Either way, the document will comprise the report and all of the attachments for they are intended to be read together and as a whole. The document will not simply be the particular attachment in which the information sought by the person making the request is to be found. Again, if only the attachment could be located and the remainder of the document could not, the attachment would still be a document for the purposes of the FOI Act even though it might also be characterised as a fragment of a larger document.
We have been speaking of paper records but the principles apply equally to other media in which information may be held. An assessment has to be made of the particular medium concerned in order to identify the document that meets the person’s request. All will depend on the evidence. What is clear, though, is that identification of a document is determined by a number of factors including its content and its interrelationship with other information as well as by its method of storage. It is not determined by reference to the way in which a person frames a request for access to a document under the FOI Act.
B.4 What is the document in this case?
If we had regard only to the ordinary meanings of the word “record”,[63] we might think it arguable that the data in each row and in each column could be regarded as a document. It may be that the information relating to each school consists of a collection of related data or fields. Whether it does, would depend on evidence that we do not have. We do not need to ask the parties for that evidence because the way in which information is stored does not determine the characterisation of the document that has been requested. What determines the characterisation is the document itself.
[63] See [62] above
NAPLAN
NAPLAN comprises a suite of assessments directed to reading, writing, numeracy and language. Those assessments are conducted for students in Years 3, 5, 7 and 9 in May of each year. On the basis of Dr Donovan’s evidence, we find that data generated from the students’ assessment results undergo certain psychometric procedures that equate the assessments to a scale to ensure that the assessments reflect a consistent level of difficulty from year to year. Students’ results can be tracked over time. The assessments measure the same skills against the same standard over different calendar years.
The NAPLAN data that is included has been calculated by averaging the aggregate results of students in a particular year as well as by school in order to generate mean scores.
My School Database
A. COAG’s vision
At its meeting on 29 November 2008, COAG agreed that:
“…greater transparency and accountability for the performance of our schools is essential to ensure that every Australian child receives the highest quality education and opportunity to achieve through participation in employment and society.
All jurisdictions agreed to a new performance reporting framework. COAG agreed that high-quality accountability and reporting is important for students, parents, carers and the community. It is also important for the tracking of the COAG targets.
The reporting agreed by all governments includes:
∙streamlined and consistent reports on national progress, including an annual report on the outcomes of schooling in Australia;
∙national reporting on performance of individual schools to inform patients and carers and for evaluation by governments of school performance; and
∙provision by schools of plain language student reports to parents and carers and an annual report made publicly available to their school community on the school’s achievements and other contextual information.
COAG agreed to a set of performance indicators to indicate progress towards achieving the agreed outcomes, with particular reporting on outcomes for Indigenous students and students from low socio-economic status communities.
…
COAG agreed that the new Australian Curriculum, Assessment and Reporting Authority will be supplied with the information necessary to enable it to publish relevant, nationally-comparable information on all schools to support accountability, school evaluation, collaborative policy development and resource allocation. The Authority will provide the public with information on each school in Australia that includes data on each school’s performance, including national testing results and school attainment rates, the indicators relevant to the needs of the student population and the school’s attainment rates, the indicators relevant to the needs of the student population and the school’s capacity including the numbers and qualifications of its teaching staff and its resources. The publication of this information will allow comparison of like schools (that is, schools with similar student population across the nation) and comparison of a school with other schools in their own local community.”[148]
[148] Exhibit 2; Annexure RWR-3 at 20-21
B. MCEETYA’s directions
MCEETYA, as the Standing Council was then known, agreed at its meeting on 12 June 2009 to a document entitled “Principles and Protocols for Reporting on Schooling in Australia” and dated June 2009. It is divided into five sections. The first sets out principles for reporting on schooling in Australia, the second on measurement and reporting on Australian school education, the third on responsible use of data measuring the performance of Australian schools, the fourth on protocols for reporting on Australian schools and the fifth on protocols for third party access to National Assessment Program data. Those principles and protocols are “… intended to guide and inform the use and publication of data generated in the process of measuring the performance of schooling in Australia.”[149]
[149] Exhibit 2; Annexure RWR-4 at 3
B.1Measurement and reporting on Australian school education
MCEETYA noted at its meeting that COAG and the MCEETYA Education Ministers had agreed that there would be a new measurement and reporting framework. The Intergovernmental Agreement on Federal Financial Relations and the National Education Agreement include targets for the outcomes of schooling and a process by which performance in meeting those targets could be measured. A national report on schooling is published each year covering a range of information covering the National Declaration on Educational Goals for Young Australians and the MCEETYA Measurement Framework for National Key Performance Measures. The latter take account of all MCEETYA decisions related to measuring performance against the National Goals including literacy, numeracy, scientific literacy, civics and citizenship education, information and communication technologies literacy, vocational education and training (VET) in schools and student participation and attainment. Ministers had agreed on the creation of a national data collection maintained by ACARA as well as upon a range of indicators that measure capacity, context and performance that will be published on each school.
B.2Principles for reporting on schooling in Australia
Eight principles underpin the reporting framework. Principles 5, 6 and 8 are concerned with information required by schools and their students, parents and families and school systems and governments. The first four are of general application:
“Principle 1: Reporting should be in the broad public interest.
Principle 2: Reporting on the outcomes of schooling should use data that is reliable and contextualised.
Principle 3: Reporting should be sufficiently comprehensive to enable proper interpretation and understanding of the information.
Principle 4: Reporting should involve balancing the community’s right to know with the need to avoid the misinterpretation or misuse of the information.”[150]
[150] Exhibit 2; Annexure RWR-4 at 4
The seventh principle is related to community use:
“… The community should have access to information that enables them to understand the performance of schools and the context in which they perform and to evaluate the decisions taken by governments. This ensures schools are accountable for the results they achieve with the public funding they receive and governments are accountable for the decisions they take.
The provision of school information to the community should be done in such a way as to enhance community engagement and understanding of the educational enterprise.
The community should have access to:
∙Information about the goals, values and educational approach of schools, and their resources, staffing, facilities, programs and extra-curricular activities that enables parents and families to draw meaningful comparisons about the education environment offered by schools
∙Information about individual schools’ enrolment profile, taking care not to use data on student characteristics in a way that may stigmatise schools or undermine social inclusion
∙Reporting on the performance of all schools with data that allows them to view a school’s performance overall and in improving student outcomes, including relation to other schools with similar characteristics, that allows them to develop an understanding of school performance and the performance of Australia’s school systems.”[151]
[151] Exhibit 2; Annexure RWR-4 at 6
B.3Responsible use of data measuring performance of Australian schools
MCEETYA was aware that, under Australia’s new school reporting framework, a greater range of data on individual schools will be publicly released. With the release of that information:
“… Ministers are committed to reporting which is fair and accurate, and that:
·information approved for publication on schools contains accurate and verified data, contextual information and a range of indicators to provide a more reliable and complete view of performance
·protects the privacy of individual students
·governments will not publish simplistic league tables or rankings, and will put in place strategies to manage the risk that third parties may seek to produce such tables or rankings.”[152]
[152] Exhibit 2; Annexure RWR-4 at 8
MCEETYA agreed on a number of “… strategies to promote fair and balanced interpretation and representation of the data.”[153] We will refer to only three of them. Beginning with the second, it requires that:
“ACARA will implement policies and procedures on data handling and storage to ensure the highest possible data security is maintained. These policies and procedures will specify the conditions under which the full data sets on school performance will be accessible to third parties.”[154]
[153] Exhibit 2; Annexure RWR-4 at 8
[154] Exhibit 2; Annexure RWR-4 at 8
While MCEETYA conferred responsibility on ACARA to, among other matters, “… publish information relating to school education, including information relating to comparative school performance”, ACARA was also required to ensure that:
“The national school level performance reporting website will include information explaining to users how to properly interpret the information, and a statement about the responsible use of data.
Through the school profile page, schools will have the opportunity to provide additional information on their background and context, and links to pages on their own school, system or education authority website that provides detailed information about the broader range of achievements and challenges faced by the school.”[155]
[155] Exhibit 2; Annexure RWR-4 at 8
That takes us back to the first strategy developed by MCEETYA. It is that there will be “Protocols that support and underpin meaningful and comparable reporting across Australia will be implemented. …”.[156] These are set out in the fourth section of MCEETYA’s Principles and Protocols for Reporting on Schooling in Australia. There are 13 protocols. Among them are:
“·Reporting will be against the nationally agreed reporting arrangements endorsed by COAG and MCEETYA.
·No reporting that permits the identification of individual students will be reported publicly.
·Data will not be published in a form that compares the performance of individual schools without contextual information.
·…
·Any methodology developed for like school comparison should be made transparent with appropriate explanation and caveats prominently displayed.
·Published data should be reported against common standards, collected on a nationally comparable basis with common, standardised processes for calculating and reporting known forms of error wherever possible. Error margins, caveats and explanatory notes should be published with data where appropriate to ensure accurate interpretation.
…”[157]
[156] Exhibit 2; Annexure RWR-4 at 8
[157] Exhibit 2; Annexure RWR-4 at 9
The fifth section sets out protocols for third party access to National Assessment Program data. They are:
“Data included in the National Assessment Program will be gathered and maintained nationally by ACARA on behalf of Ministers.
Ministers have delegated to ACARA the role of implementing access rights to this data. All third-party requests for data arising from the National Assessment Program are subject to protocols and processes developed by ACARA and approved by Ministers.
ACARA will consider applications to access National Assessment Program data sets out for research purposes that have institutional ethics clearance. In general, the data refers to data from the MCEETYA National Assessment Program in literacy and numeracy and for the same assessments in science literacy, civics and citizenship, and information and communication technology literacy that have not been released in the public domain or other national assessments agreed by Ministers.
Authorised users of the data will be required to maintain the confidentiality of the data. No data will be provided that identifies, or could lead to the identification of, individual students.”[158]
[158] Exhibit 2; Annexure RWR-4 at 10
C. My School Database
C.1 Overview
The My School Database contains all of the data to which access can by gained through the My School database. It contains all of the information that ACARA has gathered according to the directions of MCEETYA. For the most part, the data in the database is provided by the States and Territories through the relevant department or agency. That data comprises the NAPLAN data together with non NAPLAN data such as school profile statements provided by the schools themselves, non-government school representative bodies or by State and Territory education departments. The Commonwealth Department of Education also provides data included on the database.
Were a person to have access to it otherwise than through the My School database, it would be possible to manipulate the data so that it is presented in forms other than those in which it is available through the My School website. So, for example, it would be possible to generate comparative tables of schools based solely on raw NAPLAN scores for any combination of schools in Australia. It was agreed between the parties at the hearing that it would also be possible to alter the data.
C.2 Arrangements with State, Territory and private sector bodies regarding data
ACARA is dependent upon State, Territory and peak national Catholic and Independent School sector bodies for the collection of much of the data in its My School database. MCEECDYA[159] agreed to ACARA’s giving certain persons access to data in the My School database even though it was not publicly available through the My School database or otherwise. It also set out the policies and procedures that ACARA is required to follow in giving that access. They are set out in a document entitled “Principles and protocols for reporting on schooling in Australia”. We have referred to a number of the protocols set out in that document at [165]-[173] above. Regard must also be had to the limitations imposed by s 40 of the ACARA Act on the collection, use and disclosure of personal information.[160]
[159] MCEEDYA was the name by which MCEETYA was then known and before it became the Standing Council.
[160] (1) Personal information must not be collected by the Australian Curriculum, Assessment and Reporting Authority unless the collection is necessary for, and directly related to, any of the following purposes:
In a further document entitled “Data access protocols for data managed by ACARA” and dated 2012, ACARA has set out the key principles it will apply in granting access to its data. The document is intended to supplement the “Principles and protocols for reporting on schooling in Australia”. In relation to the State and Territory bodies and:
“2. In support of outcomes of the National Education Agreement, ACARA will enable improved access to nationally consistent data and information and, in accordance with its Charter, will facilitate information sharing arrangements between Australian government bodies in relation to the collection, management and analysis of school data.
3.Education Ministers, through liaison with ACARA and each jurisdictional Education Authority, have privileged access to data managed by ACARA.”[161]
[161] Exhibit 2; Annexure RWR-8 at 2
ACARA categories the data it collects and manages in carrying out its statutory functions by reference to five criteria:
“a) Source data: data that are not intended for publication, such as NAP item performance data and data that will undergo future transformation in order to generate information for publication.
b)Intermediate data: data related to the generation of statistics or indices to be published, for example, ICSEA calculations.
c)Data for validation: school level data to be validated by individual schools, jurisdictional Education Authorities, ISCA, NCEC and other non-government representative bodies as part of Quality Assurance prior to publication.
d)Data for publication: validated school level data and NAP data.
e)Published data: data in the public domain.”[162]
[162] Exhibit 2; Annexure RWR-8 at 2
C.2.1 Source and Intermediate Data
Source and intermediate data is the subject of clauses 19-22 of the Data Access Protocols for Data Managed by ACARA. Although appearing at the end, regard must first be had to cl 22. It relates to source information provided by schools to ACARA in response to a request made outside any legislative requirement or formal agreement.[163] ACARA will not release that source data and any associated intermediate data without first making the school aware that it would do so.
[163] Records and data supplied by schools as part of the NAPLAN data collection process is not the subject of cl 22 for they are required to submit it to ACARA.
That data is made available to ACARA’s committees, advisory and working groups as well as to any national Ministerial Council requiring pre-published data for specific purposes. Those purposes might include testing and analysis of data.[164]
[164] Exhibit 2; Annexure RWR-8 at [19]
Commonwealth, State and Territory government agencies with a responsibility for schools, education policy, resource allocation, reporting against COAG targets and or the provision of statistical services may also apply for access to source and intermediate data. Access will be available no later than two months after finalisation of the derived data.[165]
[165] Exhibit 2; Annexure RWR-8 at [20]
Provided they meet eligibility requirements, which we set out in the following paragraph, other parties may apply for access to source and intermediate data six months after the publication of the derived data. On receiving an application, a committee formed by ACARA will decide whether it is appropriate to give access and, if so, how the data should be treated and whether there should be any conditions attached to the access. In coming to its decision, the committee will consider advice provided by relevant jurisdiction Education Authorities, ISCA and NCEC.[166]
[166] Exhibit 2; Annexure RWR-8 at [31]-[33]
Requests for source and intermediate data are considered by ACARA on a case by case basis from the following categories of applicant:
“· Authorised employees of an Australian Commonwealth agency;
· Authorised employees of an Australian State/Territory agency;
· Academics at an Australian university or TAFE with institutional ethics clearance;
· Researchers attached to an Australian university or TAFE with institutional ethics clearance;
· Students at Masters or PhD level who are enrolled at an Australian university with institutional ethics clearance (agreement to also be signed by their supervisor within the university);
· Authorised employees of other research and policy institutions which have been approved by the ACARA Committee as appropriate recipients of national school data based on:
° Internal controls/ethics process within the institution;
° Reputation as a research or policy institution;
°Track record in publishing research of value to the Australian community or otherwise strengthening school outcomes.”[167]
[167] Exhibit 2; Annexure RWR-8 at [34]
C.2.2 Data for validation and validated school level data and NAP data
Data in this category is made available to ACARA’s committees, advisory and working groups as well as to any national Ministerial Council requiring pre-published data for specific purposes. Those purposes might include testing and analysis of data. It is also available to nominated Authorised Users of Jurisdiction Education Authorities, non-government school authorities and schools for validation as part of the quality assurance process.[168]
[168] Exhibit 2; Annexure RWR-8 at [23]-[24]
Fully validated pre-published national school level data will be released to nominated Authorised Users of Jurisdiction Education Authorities, ISCA and NCEC for the purposes of system analysis within their respective jurisdictions as well as for the purposes of briefing stakeholders.[169] Again for the purposes of analysis and briefing stakeholders, pre-published NAP data will be released to nominated Authorised Users of jurisdiction Education Authorities.[170] Through release to the appropriate bodies, Ministers will also gain access to both fully validated national school level data and NAP data.[171]
[169] Exhibit 2; Annexure RWR-8 at [25]
[170] Exhibit 2; Annexure RWR-8 at [26]
[171] Exhibit 2; Annexure RWR-8 at [27]
C.2.3Access to published data
Clauses 28-30 of the document, Data access protocols for data managed by ACARA, apply in the situation in which data is available to the public whether by means of the My School website, the NAPLAN Summary and National Report or another of ACARA’s publications but a person may wish to have access to the data in another format suitable for analysis. In that case, government agencies, ISCA and NCES may apply to ACARA for access following the publication of the data. Other persons may apply six months after the publication. Their applications will be considered by the relevant committee of ACARA. ACARA will consider each application on a case by case basis. It will do that in accordance with the protocols and whether the intended outcome of the request will be beneficial to students, schools and the Australian community.[172]
[172] Exhibit 2; Annexure RWR-8 at [35]
C.2.5 Formal agreements
Except in those situations in which ACARA provides data for the purposes of validation, it requires those granted access to enter an agreement with it. In the case of Ministers, that agreement takes the form of a Standing Memorandum of Understanding (MOU) between ACARA and the relevant Education Authority on behalf of each Minister. There are also Standing MOU between ACARA and the ISCA and NCEC. Where access is granted to specific ACARA or government working or advisory groups or to government agencies, a MOU is entered into with the relevant body in relation to each request for access. To that end, it either has, or is in the process of, negotiating a Memorandum of Understanding (MOU) with each of fourteen bodies. All have signed an MOU with ACARA. A similar approach is taken to all others to whom ACARA gives access but, rather than a MOU, ACARA enters an agreement with each.[173]
[173] Exhibit 2; Annexure RWR-8 at [13]-[17]
Whether it be an agreement or an MOU, obligations are imposed on those given access to the data regarding its storage and the purposes for which it may be used. In addition, those given access must give an undertaking that they will not publish rankings of schools.[174]
[174] Exhibit 2; Annexure RWR-8 at [17] and see also Annexure RWR-7 for the MOU
Although there are variations amongst them, we accept that the MOU annexed to Mr Randall’s statement is indicative of the content of each of them.
D.My School website
D.1Gives restricted access to database
On the basis of the evidence of Mr Randall, we find that ACARA met the obligations imposed on it by COAG by developing and maintaining the My School website. It is a resource which ACARA continues to develop according to meet the requirements of the Standing Council.
The My School website allows a member of the public to search the profiles of approximately 10,000 Australian schools held on a database. That database contains all of the information presented on the My School website, which is:
“… designed to allow a user to quickly locate statistical and contextual information about schools in their community and compare them with a group of up to 60 schools serving students with statistically similar backgrounds. These schools can be located across Australia, however their students have similar levels of educational advantage.
Average student achievement is displayed graphically for 2008, 2009, 2010, 2011, 2012 and 2013. The graph depicts the school average with clearly marked margins of error. This display provides information about a single domain (testing area) and year level at a time. The school average for each domain and year level can be compared with the average scores of schools serving students from statistically similar backgrounds and the Australian average.”[175]
[175] Exhibit 2 at [15]-[16]
On the basis of Dr Donovan’s evidence, we find that the first version of the My School website was launched in January 2010 to enable parents to monitor and evaluate data at the school level rather than at the level of the individual child. At that time, it allowed comparison of a particular school in literacy and numeracy testing with both the national average and statistically similar schools. In March 2011, a second version, My School 2.0, was launched. It allowed for increased transparency regarding school funding. In addition, it improved a user’s ability to track the performance of a school over time. A third version, My School 3.0, was launched in February 2012 and a fourth, My School 4.0, in March 2013.
The first page accessed for each school presents a range of contextual information. That includes some remarks about the school authored by the school itself, information about the level of socio-educational advantage of students at the school, statistical information about the size and composition of the student population and information about financial and teaching resources. A school is not given a total NAPLAN score, aggregated across domains, which can be compared with other schools in a simplistic way. Comparison in a simplistic way would entail comparison by reference to test performance alone and pay no regard to other contextual factors such as the location of the school and uncertainties associated with performance indicators. To avoid that, the NAPLAN data is disaggregated and presented per year level and per domain (i.e. per numeracy, writing, language conventions, reading).
Comparisons are limited to a comparison of a selected school against either all schools on the basis of the national average or with schools identified as “similar schools”. Similar schools are defined as schools with statistically similar student populations in terms of socio-educational advantage. ACARA created an Index of Community Socio-Educational Advantage (ICSEA) to enable comparisons of NAPLAN test achievements by students in schools across Australia. It provides a scale that numerically represents the magnitude of the influence, be it an advantage or disadvantage, that students’ family backgrounds influence their educational outcomes at school.
The information necessary to make up an ICSEA value is provided directly by families and includes information such as parental occupations and education. If that information is not available, ACARA uses information about average family characteristics in the relevant area from the Australian Bureau of Statistics. The ICSEA variables also include information as to whether a school is located in a metropolitan, regional or remote area as well as the proportion of Indigenous student enrolments. ACARA provided a school web-portal to enable independent school principals and government and Catholic system jurisdictional authorities to see 2012 values. They were given an opportunity to request a review and to provide new supporting data.[176]
[176] Exhibit 2; Annexure RWR-5
A value is given to the average level of educational advantage of each school. On the School Profile page of the My School website, a table is set out against the ICSEA value. That table shows the distribution of students in a school across four quarters from the bottom quarter of relative disadvantage to the top quarter of relative advantage.
Schools with similar ICSEA values are schools whose students’ NAPLAN results are influenced by their similar levels of educational advantage or disadvantage. A school’s ICSEA value is used to select a group of up to 60 schools serving students from statistically similar backgrounds i.e. similar levels of educational advantage. The schools may, or may not, be located near to each other in a geographical sense.
An average NAPLAN result is also calculated for those statistically similar backgrounds. A particular school’s NAPLAN results can be compared against the average on the My School website.
D.2 Features to minimise data mining
On the basis of the evidence of Mr Randall, we find that the design of the My School website to prevent the creation of simplistic league tables based on the data in the database. It is difficult for a user of the website to “strip out” the data in the database and create a separate repository of that data in a form that can be manipulated. The website minimises the extent to which data can be stripped out by a data mining computer program by requiring the user to input a CAPTCHA screen at regular intervals. A CAPTCHA screen requires the user to input a random string of letters and numbers that are not machine readable. Finally, a user is limited in the number of hits that he will be given in each search.
D.3 Publication of simplistic league tables
These steps have not been entirely satisfactory in limiting data stripping. Some media outlets, for example, have obtained data from the My School website and have presented it, either alone or with data obtained from other sources, on their own websites. They have included simplistic league tables. The Australian newspaper is one such media outlet.
At a meeting in April 2011, the Standing Council:
“23.1 Requested that ACARA as a matter of urgency provide Ministers by the end of April 2011 with advice on the effectiveness of the protection measures against the construction of league tables contained in My School 2.0.
23.2Asked that ACARA outline for Ministers by the end of April 2011 what action it intends to take in relation to breaches of the My School website’s terms and conditions.”[177]
[177] Exhibit 2 at [24]
Among its resolutions at the meeting in the following year, the Standing Council “… affirmed its opposition to league tables as counterproductive and harmful to the educational purpose of schooling.”[178] Together with the Chair of ACARA, Mr Randall met with the Editors of The Australian, The Sydney Morning Herald and The Courier Mail. The focus of some of their discussions was upon how each of them might improve their databases to overcome ACARA’s criticisms. The editors were interested in matters such as ways in which they might represent margins of error and might better connect contextual information with performances on NAPLAN.
[178] Exhibit 2 at [25]
Where ACARA has become aware that commercial non-media operators are selling simplistic league tables, it has written to those operators requiring them to cease and desist from doing so. In doing so, it has pointed out the Terms of Use on the My School website. Mr Randall is not aware that simplistic league tables continue to be offered for sale but he recently became aware that they were being made available by an operator. ACARA wrote to that operator which has advised that it was not using My School data to rank schools.
D.4 The My School Terms of use
The Terms of Use on the My School website begin with the words:
“All use of the My School website (this Site) is subject to these Terms of use (Terms) as updated from time to time. By using the Site, you agree to be bound by these Terms and you acknowledge that your agreement to these Terms constitutes a legally binding agreement between you and the Australian Curriculum, Assessment and Reporting Authority (ACARA). If you do not agree to be bound by any of these Terms, you are not authorised to use the Site and must refrain from accessing it.”[179]
[179] Exhibit E at [1.1]
Clause 4 of the Terms of Use requires a user to:
“4.1 … acknowledge that the Content on this Site about the performance of a school in National Assessment Program – Literacy and Numeracy (NAPLAN) tests is only one aspect of the information that should be taken into consideration when looking at a school’s profile.
4.2… acknowledge that you should also take into account a school’s statements, the curriculum on offer and extra-curricular activities, facilities and programs in forming a view about a school. Most schools have links from their My School profile page to their website so you can obtain a better idea of the school community.”[180]
[180] Exhibit E
A user of the My School website is not permitted to use the My School website or content from the site in a manner that is outside the scope of the Terms of Use unless that user has ACARA’s written permission to do so.[181] Clause 7.1 sets out specific ways in which a user may not use the website or content without first obtaining that written permission. Among those ways is to “create lists of comparative school performance from Content on this Site directly or indirectly for commercial purposes”.[182]
[181] Exhibit E at [6.4]
[182] Exhibit E at [7.1.v]
I certify that the two hundred and seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie and Member S Taglieri,
Signed: ……[sgd]..................................................
Leah Berardi Associate
Dates of Hearing 11 and 12 August 2014
Date of Decision 29 September 2014
Self-represented Applicant Dr Mark R Diamond
Solicitor for the Respondent Mr Justin Davidson
Australian Government Solicitor
(a) conducting research relating to the national school curriculum;
(b) assisting government to formulate policies in relation to education matters;
(c) formulating national reports consisting of aggregated data on school performance.
(2) The use of personal information collected by the Australian Curriculum, Assessment and Reporting Authority in accordance with subsection (1) or lawfully disclosed to the Australian Curriculum, Assessment and Reporting Authority is taken to be authorised by this Act for the purposes of Australian Privacy Principle 6 if the use is necessary for, and directly related to, any of the purposes mentioned in that subsection.
(3) The disclosure of personal information by the Australian Curriculum, Assessment and Reporting Authority is taken to be authorised by this Act for the purposes of Australian Privacy Principle 6 if:
(a) the disclosure is made to a person or body that is prescribed by the regulations; and
(b) the disclosure is necessary for, and directly related to, the purposes mentioned in subsection (1).
Note: Australian Privacy Principle 6 applies to further disclosures of the personal information.”
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