McKean v Attorney-General and Justice

[2015] NSWCATAD 176

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	McKean v Attorney-General & Justice [2015] NSWCATAD 176
Hearing dates:	30 June 2015
Decision date:	24 August 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Kinross, Senior Member
Decision:	The decision that access is refused is affirmed
Catchwords:	ADMINISTRATIVE REVIEW - access to information- whether overriding public interest against disclosure - whether government and private citizen information provided in confidence - whether conduct, effectiveness, or integrity of admissions board examination prejudiced by disclosure of marking guides, examination scripts and results.
Legislation Cited:	Government Information (Public Access) Act 2009 Civil and Administrative Tribunal Act 2013 Legal Profession Act 2004
Cases Cited:	McKean v University of Melbourne [2007] VCAT 1310 Re James and Ors and Australian National University (1984) 6 ALD 687 Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180; 64 ALR 97 JY v Commissioner for NSW Police [2008] NSWADT 306 Redfern and University of Canberra (1995) 38 ALD 457 Mannix v Department of Education and Communities (NSW) [2014] NSWCATAD 35 Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 A-G (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 Attorney-General v Jonathon Cape Ltd; Attorney-General v Times Newspapers Ltd [1976] QB 752
Texts Cited:	Heydon, JD, Leeming MJ and Turner PG. Meagher, Gummow, Lehane. Equity. Doctrine and Remedies. 5th Ed. 2015
Category:	Principal judgment
Parties:	Zane McKean (Applicant) Legal Profession Admission Board (Respondent)
Representation:	Solicitors: Z McKean (Applicant in person) Crown Solicitors Office (Respondent)
File Number(s):	1410640, 1410716, 1410502, 1510124,

REASONS FOR DECISION

Background

1. The applicant applied to the Legal Profession Admission Board (respondent) under the Government Information (Public Access) Act 2009 for access to information related to examinations he had failed. The respondent disclosed in full and partially disclosed a range of documents. The remaining documents in dispute between the parties are examination scripts of a small number of students who either just passed or just failed Legal Ethics and Insolvency examinations, marking guides prepared by examiners in a number of subjects and records of students’ examination results: s80 (d) of GIPA Act. Document particulars are set out in the respondent’s written Outline of Submissions at the hearing under the headings Category 1, Category 2 and Category 3.

2. At the hearing the applicant withdrew his application for administrative review numbered 1410716 and accordingly it was dismissed pursuant to s 55 (1)(a) of the Civil and Administrative Tribunal Act 2013.

Evidence

3. Written and oral submissions, the affidavits of Mr Banks, Ms Mumberson, Mr Seago, Ms Kotlaroff and Ms Collard, the oral evidence of Mr Banks and Mr Seago and the documents in dispute were considered.

Relevant law

4. A person who makes an access application for government information has a legally enforceable right to access unless there is an overriding public interest against disclosure of the information: s 9(1) GIPA Act.

5. Section 13 GIPA Act provides:

There is an overriding public interest against disclosure of government information for the purposes of the Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

6. The burden of justifying an overriding public interest against the disclosure of information lies with the agency: s 105(1) GIPA Act.

Public interest considerations favouring disclosure

7. The respondent contended that the public interest considerations in favour of disclosure were s12(1), s12(2)(a) and s12(2(b). The applicant contended public interests in the transparency of assessment practices, in revealing incompetent of negligent marking practices (see for eg [23]) and in the ‘Law Profession’. Consideration is given to each of public interest considerations contended and unless specified, applies to all the documents in dispute.

General public interest in favour of disclosure – s12(1)

8. There is a general public interest in favour of the disclosure of government information: s 12(1) GIPA Act.

9. There is a question as to the extent the applicant’s claim concerning the transparency of the assessment process coalesces with the general public interest in favour of disclosure. The applicant relied on two cases, decided under different statutory regimes, to establish such a public interest. He submits at [190]-[192] that the case of McKean v University of Melbourne [2007] VCAT 1310 shows there is a public interest in the transparency of the assessment process. (App subs 1410502 6 Feb 2015) After carefully considering this case, I consider it to be of little assistance to the applicant in this respect or in any other respect. McKean was decided under a statutory regime with significantly different features to GIPA Act. The case also dealt with different public interest considerations, different documents or where documents are similar such as marking guides, they concern a different subject for a different profession.

10. The applicant also referred to various highlighted paragraphs from Re James and Ors and Australian National University (1984) 6 ALD 687. [190] Having carefully considered the case, I consider it of little assistance in this respect or in any other respect. This is because the information considered in Re James, the record sheet containing what the supervisor said about the student’s History 4A thesis, is of a different nature to the information under consideration.

11. Public interest considerations claimed must be pertinent to the documents at hand and evaluated in the context of the relevant statutory provisions.

12. The applicant quoted academic views about good pedagogy requiring the publishing of marking guides. No weight can be accorded to these views in the absence of expert evidence with respect to the specific subjects and courses run by the respondent.

13. I am not satisfied that the applicant has made out a transparency public interest that is different to the general public interest expressed by s12(1) GIPA Act.

14. The general public interest consideration in favour of disclosure of government information should be afforded significant weight.

Promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance- s12(2)(a)

15. The respondent submitted that the public interest considerations in s12(2)(a) and (b) applied to the marking guides and examination scripts. (1410502, subs filed 19 Dec 2014 [61]) The weight to be accorded to these public interest considerations needs to be assessed in the absence of any further detailed argument from either party.

16. The effectiveness of the respondent’s courses in producing candidates eligible for admission to the legal profession and the effectiveness of its examination processes in identifying suitable candidates is an issue of public importance in a community governed by the rule of law. While the disclosure of the general types of document sought may be informative about an individual’s performance (an irrelevant private interest), they also have the potential to inform debate on the effectiveness of the pedagogical approach and teacher quality. However I am not satisfied that the disclosure of the specific documents sought - student’s results in a limited number of subjects, marking guides or a very small sample of student examination scripts of students who have just failed and just passed - could reasonably be expected to contribute to positive and informed debate on these issues of public importance.

17. The material before the Tribunal raises questions about the extent to which examiners may be complying with the 6 December 2005 Examinations Committee’s resolution “That examiners be required, at the time of setting examination papers, to produce a brief, not-for-publication marking guide for the use of Revising Examiners.” [my emphasis] (“The Examination Committee’s resolution”) The evidence shows the requirement arose because of the respondent’s concern about wide discrepancies between the examiner’s and revising examiner’s marks.

18. At [55] of the respondent’s submissions it is said that the succession marking guide does not exist because the examiner and revising examiner ‘got together and discussed the marking’. At [63] of the respondent’s submissions it is said that there is no Practice and Procedure marking guide because there were no students who received a mark of 40-49%. These facts suggest that compliance with the respondent’s requirement to assure objectivity and consistency may not be routine.

19. Because of these facts, I am satisfied that the disclosure of the marking guides (and not the scripts or results) could reasonably be expected to enhance Government accountability. Public scrutiny will enhance examiner accountability to the respondent, and the respondent’s accountability to the government and the public for the performance of its role.

20. I accord a medium weight to this public interest consideration in relation to the marking guides.

Inform the public about the operations of agencies and in particular, their policies and practices for dealing with the public- s 12(2)(b)

21. The respondent’s evidence shows that it introduced marking guides in response to divergent marks between examiners and revising examiners. The applicant has provided copies of his examination script for Insolvency which shows that the examiner’s marks and the revising examiners’ marks, are identical, in circumstances where there was a marking guide (File 1510102 Item 2). (App subs 1510502, Appendix ZM-4)

22. I am satisfied that generally, the disclosure of marking guides together with examination scripts could reasonably be expected to show how processes the respondent has put in place to ensure marking objectivity and consistency are implemented and are working. I am therefore satisfied that the disclosure of the marking guides and the examination scripts could reasonably be expected to inform the public about the respondent’s practices in dealing with law students’ examination answers. However the disclosure of the specific information sought - small discrete number of marking guides and examination scripts will do little to inform the public about the respondent’s course and assessment practices.

23. With respect to the examination results, it is self evident that their disclosure could reasonably be expected to inform the public about the fact of marking, the method of recording and with analysis, the statistical spread of marks in those subjects. The respondent has submitted that there is abundant public testimony of this information and with respect to the marking process in general. This argument goes to weight rather than whether the public interest consideration applies.

24. I attribute a low weight to this public interest consideration.

Reveal…negligent… conduct s 12(2)(e)

25. The applicant submitted that there is a ‘public interest in the law profession’ in that students who fail when they should not have failed could have detrimental outcomes to students, the legal profession and the wider community (Apps sub [188] –[189]) I am not persuaded by this argument.

26. It is apparent that the respondent’s processes are quality assurance processes designed to maintain professional standards which protect the public interest in a quality legal profession. The Board has a discretion to raise or lower the bar from time to time depending on a variety of factors including its view of the quality of practitioners currently practising and demand and supply. Such decisions may result in students capable of passing in one year failing in another. It is also the case that individual students may not pass from time to time for a range of other reasons. The private interest in whether a student passes a subject does not in my view coincide with the public interest in the maintenance of the quality of the legal profession, particularly in circumstances where a student may re-sit the examination or undertake study elsewhere.

27. The applicant submitted that the reason for the respondent’s refusal to disclose was (to hide) ‘incompetent’ or ‘negligent’ marking. In my view the competency of marking is coextensive with public interest considerations in s12(2)(a) and (b) already considered. No further weighting needs to be accorded to those public interests to take account of this aspect. ‘Negligent conduct’ is contemplated by the public interest consideration example given in s12(2)(e) of GIPA Act.

28. Is the applicant’s expectation that disclosure of the marking guides, examination scripts and exam results could reveal or substantiate that the respondent has engaged in negligent marking reasonably based? (Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180; 64 ALR 97 (per Bowen CJ and Beaumont J)

29. The applicant’s expectation at [193] – [200] that disclosure could be expected to reveal negligent marking is based on the applicant’s concern that he was given a score of ‘0’ on one question in Legal Ethics and failure scores on three other questions. I do not consider the fact of low or ‘0’ scores to be a reasonable basis for the expectation that negligent conduct could be revealed. Another basis put forward by the applicant was the assertion that the examiner failed to explain his results. I do not consider a mere assertion about a communication process between two parties in circumstances where the parties have different views to be a reasonable basis for the expectation.

30. The applicant contends that there was a higher fail rate in one of the exam sittings he failed than in previous years; an unusual but possible statistical deviation according to the respondent’s evidence. This fact of itself may not form a reasonable basis for the expectation. The respondent submitted and it was the respondent’s evidence that marking guides were not prepared for some exams, contrary to the Examination Committee’s resolution. [55], [63] Although I am of the view that disclosure of the documents in dispute is unlikely to reveal negligent conduct, these separate facts combined provide a reasonable basis for the applicant’s expectation. I have considered the respondent’s submission in reply [21] that there is no basis for the applicant’s contention and reject that submission.

31. I accord a medium weight to this public interest consideration.

Private interests co-extensive with public interests

32. The respondent submitted that no weight should be given to the public interest consideration of transparency, with reference to the ‘negligent conduct’ claim raised by the applicant on the basis that “the applicant’s interest in disclosure was merely a private interest”, not a public interest. (Resp Sub in Reply [52]-[56]) In its submissions at [23] the respondent helpfully referred to the line of relevant authorities summarized in JY v Commissioner for NSW Police [2008] NSWADT 306.

33. The applicant has acknowledged his private interest in making the application which in my view is more than the benefit that might accrue to him personally from gaining insight into why he received the grades he did. His private interest extends to looking for reasons extraneous to himself to explain his failure.

34. In this matter I consider that the applicant’s interest in looking for reasons extraneous to himself coincides with the benefits that arise from public scrutiny, the applicant being a member of the public. Those benefits have been decided as enhancing government accountability, informing the public about practices dealing with examination marking and revealing negligent conduct.

Public interest considerations against disclosure

Marking guides- s14 Table 1(f) & (h)

35. The respondent submits that disclosure of the marking guides could reasonably be expected to prejudice the respondent’s functions (s14 Table 1(f) and/or its ability to conduct examinations (s14 Table 1(h)) by undermining:

1. The integrity of the examination process;

2. The respondent’s ability to rely on the results;

3. The balance between consistency and flexibility to ensure fairness;

4. Other specific detriments.

36. The applicant disputed each of the detriments claimed and gave detailed submissions in relation to all arguments raised by the respondent. In his own words, a summary of his key arguments against the respondent’s claims are:

1. Disclosure will not undermine the finality of the marking process;

2. New questions are not, ever, the same as old questions

3. There is not a limited pool/number of questions and information about past exams is not of any use in future exams. [14]-[41]

37. I have considered each of the arguments raised but do not specifically address every point made by either party.

38. The respondent referred to Redfern and University of Canberra (1995) 38 ALD 457. (App sub [102]) In which the AAT found that the disclosure of examination scripts could reasonably be expected to prejudice the effectiveness of the conduct of examinations on the basis that:

If other students’ examination papers are released for the purpose of enabling students, such as the applicant, to conduct their own review of the relative academic merits of their performance, the University’s formal assessment and review processes would be subjected to informal collateral disagreement. This would undermine the finality of the assessment and review process. [my emphasis]

39. The applicant argued that this reasoning did not apply in this case because the respondent’s review/appeal processes are prescribed and final. Having carefully considered the case, it is apparent to me that the University of Canberra’s review processes were also defined and similarly ‘final’ to the respondents. It follows that the applicant’s argument is not a comprehensive answer to the respondent’s arguments with respect to the detriment claimed arising from a lack of finality.

40. The applicant also argued that the examination process was already subject to collateral disagreement through other mechanisms - that students can share publicly available information or assist each other through their studies through a range of means. The examples given by the applicant concern information and processes over which the respondent has no control and on which students have an equal playing field. The respondent’s submission in relation to finality concerns information over which the respondent exercises control and the disclosure of which the respondent maintains will lead to an unequal playing field and lead to unfairness in its examination process. At oral hearing Mr Banks expressed the view that disclosure could lead to correspondence with the respondent, GIPA applications, students challenging results and discussions amongst the student body creating uncertainty. I accept the affidavit and oral testimony. I find the reasoning in Redfern in relation to the examination scripts to be persuasive with respect to all the information in dispute, not just the examination scripts, as considered in Redfern.

41. The applicant argued at [25]-[29] that because subsequent examination papers are never the same, and because there are a limited number of concepts to be tested, questions may be similar but never the same, “an answer to a past exam question ‘could not constitute a satisfactory answer’ in a future examination. Based on this logic, the applicant essentially submits that disclosure of the examination scripts and marking guides could not reasonably be expected to prejudice the effectiveness of an agency’s function or the conduct of an examination.

39. I am not persuaded that this line of argument is a complete rebuttal to the effect of the respondent’s evidence, taken as a whole. The marking guides do not provide a specific answer to a ‘sufficiently original’ question. My view of the effect of the respondent’s evidence is that the marking guides provide the keys to answers so that students armed with the keys could possibly answer a question irrespective of how similar it may appear or how endless the supply of ‘original’ questions there may be. (see for example, Banks affidavit, Annexure B, [5.b]) There are a limited number of keys. Access to sequential marking guides will give a complete set of keys.

40. The applicant submits at [14] that students to whom a marking guide was disclosed would not gain an unfair advantage over other students because ‘any information about the past exams is not of any use for future exams’. Because of the effect of the whole of the respondent’s submissions and evidence, this argument by the applicant must fail.

41. The respondent submitted that this case was analogous to Mannix v Department of Education and Communities (NSW) [2014] NSWCATAD 35 in which the evidence was that it was necessary to keep past examination questions confidential because those papers formed part of a contingency pool of questions that could be used if a test paper were to be leaked. I have read and carefully considered this case. The applicant is not seeking access to examination papers.

42. Additionally, the features of the tests considered in Mannix on which the decision is based are entirely different to the examinations administered by the respondent. Importantly they were kept confidential, unlike the respondent’s examination papers. Additionally, there was significant testing for the validity of those tests, which were for school based learning, not for the level of problem solving based on extensive reading of texts and cases as contemplated in law exams. Significant costs had been expended in establishing the reliability of the tests considered in Mannix. No such claims are made here.

43. I do not accept that the case is analogous or that it assists the respondent’s arguments.

44. The respondent’s reference to Mannix simply may be a claim to the type of detriment claimed in Mannix. I am not satisfied that such a detriment could reasonably be expected to occur. The evidence is that respondent publishes the past three semester’s examination papers – they are therefore not confidential. Where the examination papers are published to the web, it is very difficult to expunge that record so the idea that limiting publication to more recent examinations so that old questions might be used if necessary, is not one that convinces me that this particular detriment claimed by the respondent is an effect that could reasonably be expected by the disclosure of the information in dispute- marking guides, examination scripts and student results.

45. The respondent submitted that disclosure of the marking guides would change the very nature of the marking guide. (Resp Sub 19 Dec 2014, [17] The examiners expressed different opinions as to the effect, whether more vague or more prescriptive, reflecting the fact that the marking guides would be prepared with a different audience in mind and for a different purpose. The submission of the respondent was that in either case consistency in marking, and flexibility may be affected, along with other matters.

46. The applicant’s submitted that the respondent’s evidence and submissions on this detriment should not be accepted because, amongst other things, the respondent’s Memorandum for Examiners requires that the marking guide set out answers that might reasonably be expected from an intelligent reading of the prescribed text-books or a fair knowledge of practice.

47. The applicant raises a fair question as to how the respondent’s own requirement can continue to be met by examiners going ‘more vague’ or ‘more prescriptive’, however I consider that examiner’s could do both. I am persuaded by the respondent’s submission that the evaluative judgment required in the marking process from a person with recognized expert knowledge and skill cannot be reproduced by a reading of the marking guide by students and the effect of the examiners’ evidence that they may either rely more heavily on their knowledge and skill (‘go vague’) or provide more prescriptive marking guides that affect the ability to apply evaluative judgment. I accept that the detriment claimed could reasonably be expected.

48. I accept the respondent’s evidence that the arrangement of open book exams combined with access to past examination questions, but no access to the marking guides, permits the Board to test the student’s reading and understanding of the case law, ability to extract relevant principles and rules and apply them to differing sets of facts in a reasoned way.

49. In my view the detriments contributing most significantly to the weight to be accorded to the public interest considerations identified by the respondent are: the advantage an individual student would gain by accessing the marking guides under GIPA Act; the reliability of results due to the risk of misuse such access would expose the board to through plagiarism, the unfairness that could be expected to arise from the establishment of a market and the creation of an uneven playing field; the limitation of the board’s ability to assess the student’s comprehension and problem solving abilities. The respondent submits that the effect could be expected to lower the quality of practitioners entering the legal profession. ([14] Resp sub dated 19 December 2014) I am satisfied by the respondent’s evidence of these detrimental effects which I also consider to be self-evident.

50. The respondent makes a number of other claims concerning detriment related to more prescriptive/vague marking guides, the processing of more anticipated GIPA applications and the handling of more correspondence concerning marks and the marking process would be more labour intensive and therefore more costly to the respondent. It argued that processes that are made less efficient necessarily divert resources from other areas and through this diversion, the effectiveness of a function of the respondent is affected. This would impinge on the examination process’s effectiveness by diverting resources away from core functions. (Banks affidavit, attachment B [2e]; Resp sub 19 Dec 2014, [17]). I am not satisfied by the applicant’s arguments in this respect including that the finality of the respondent’s marking process precludes the expected effect. I accept the respondent’s submissions that the expected effect has a reasonable basis and could reasonably be expected to prejudice the respondent’s effective exercise of its function.

51. I am satisfied the respondent has established a reasonable basis for its expectation that disclosure of the marking guides could be expected to prejudice the effectiveness exercise of a function and/or the conduct, effectiveness and integrity of its examination process. In my view the two public interest considerations cover the same ground and are not cumulative in effect.

52. I attribute a very high weighting to this public interest consideration/s against disclosure because of the number of different types and the nature of detriment that could reasonably be expected to arise and the extent of the prejudice.

Marking guides – disclose information provided in confidence

56. The respondent submits that the examiners provided the marking guides to it in confidence. (Resp subs 19 Dec 2014 [47]-[49]). Its evidence of this was an examination committee resolution that the marking guides were not for publication and were for use by the Revising Examiner (Resp Sub [47]), emails from examiners saying that the marking guides were produced for a limited purpose, not for ‘general disclosure to students, media and the public at large’ and Mr Seago’s affidavit that the respondent treated the marking guides confidentially on the occasion they were in receipt of one. These are all relevant factors which point to the information being provided in-confidence.

57. The applicant submitted that the marking guides lack the necessary quality of secrecy or confidentiality once the examination was concluded and that the content of marking guides is information which is already in the public domain, in the form of text books, cases etc. [135]-[156] The respondent submitted these submissions were more relevant to a claim of breach of confidence. (Resp sub in reply [29].

Approach to decision-making

58. The words in Table 1(g) relied upon by the respondent as to whether information was provided to it ‘in confidence’, are words with a legal meaning and must be construed in that light and in the context of the GIPA Act. The respondent has submitted that the Tribunal should follow the decision in Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19. I am not persuaded by this submission.

59. Camilleri considers the public interest considerations contained in Table 1(d) and 1(e), the policy objectives of which are entirely different - to protect a deliberative process of government and to ensure the (ongoing) supply of confidential information needed by government to perform a government function. There are two distinct elements attached to the latter - the intrinsic nature of the information supplied to government is confidential and it is information that facilitates exercise of an agency function. Neither of these elements need to be established here.

60. The public interest consideration against disclosure contained in s14 Table 1(g) reflects the equitable doctrine expressed in Lord Ashburton v Pape [1913] 2 Ch 469 at 475, approved by Mason J in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at [50] and followed by the NSW Court of Appeal in A-G (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86. The doctrine restrains ‘the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not be divulged.’ [my emphasis]

61. Heydon, JD, Leeming MJ and Turner PG in Meagher, Gummow, Lehane. Equity. Doctrine and Remedies. 5th Ed at [42-080] define “In confidence” to mean “an express or implied understanding that a communication is for a restricted purpose”. The meaning the authoritative authors attribute to “in confidence” by and large reflects the relevant authorities.

Was there an express or implied understanding that a communication is for a limited purpose?

62. I am satisfied that the Examination Committee’s resolution alone provides sufficient evidence that there was an express prima facie understanding between the respondent and the examiners that the marking guides were provided to the respondent for a restricted purpose. Whatever the actual reason or purpose behind the examiners giving the marking guides to the respondent, it was limited by the common understanding that the marking guides were not for publication.

63. There being an express understanding, there is no need for me to consider the ‘whole of the context’ or ‘all the circumstances’ of the provision of information to determine an implied understanding.

64. The context in which the public interest consideration appears i.e. legislation concerning information held by government, the objectives of the legislation to open up government information, the express intention of the Parliament contained in s3(2) that the Act is to be interpreted and applied so as to further the object of the Act, and other provisions lead me to conclude that when considering government information (as distinct from private information) held by government, I should and am bound to follow the approach taken in Commonwealth v John Fairfax & Sons Ltd when considering the phrase ‘information provided to an agency in confidence’ to the extent it considered ‘in-confidence supply’ and was consistently followed in the three separate judgments given by the NSW Court of Appeal in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1987] 10 NSWLR 86.

65. In Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, Mason J in rejecting a submission that an ex-parte interlocutory injunction against publication should be continued on the basis of the substantive issue of breach of confidence, stated that

The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.

It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

66. In A-G (UK) v Heinemann McHugh JA reasoned

But Government acts, or at all events are constitutionally required to act, in the public interest. Information is held, received and imparted by governments, their departments and agencies to further the public interest. Public and not private interest, therefore, must be the criterion by which Equity determines whether it will protect information which a government or governmental body claims is confidential.

67. It follows that to receive the protection of the equitable principle claimed, the respondent must have received the marking guides from the examiners for a public interest purpose and the provision ‘in confidence’ must be to further the public interest. In the GIPA context, it is the public interest that must be the criterion by which it is determined whether or not the information provided in confidence ought to be disclosed. Failure to apply a public interest criterion would permit government agencies to easily thwart the objective of the GIPA Act by merely claiming and/or recording that information was provided in confidence.

Was the common understanding between the parties founded in the public interest?

68. I infer from the respondent’s evidence that the substantive bases for the examination committee’s resolution were the public interest considerations contained in Table 1(g) and (h) claimed by the respondent and as accepted by the Tribunal.

69. Because the obligation of confidence is fixed by the public interest considerations against disclosure already found, I ascribe little to no weight to this public interest consideration; it is founded upon and largely co-extensive with other public interest considerations against disclosure.

70. It follows from this approach that I agree with the respondent’s submission that it is unnecessary for it to show that an effect of disclosure of the marking guides could found an action for breach of confidence. It also follows that the applicant’s submissions which reflect the factors a court would take into account in determining a claim of breach of confidence, are not relevant. It also follows that I do not accept the applicant’s argument that the marking guides are not confidential because they are comprised by information already in the public domain; it is not necessary to establish the intrinsic nature of the information purported to be provided in confidence.

71. Whether the public interest is in favour of disclosure of the marking guides or against it requires a public interest balancing test: s13. In this case the balancing exercise is between the public interests in transparency generally, government accountability, informing the public about agency practices and revealing negligent conduct on the one hand, against the prejudicial effects disclosure could reasonably be expected to have on the conduct, effectiveness or integrity of the examination process and to the extent it is not co-extensive, the effective exercise of the respondent’s functions. The detriment that could reasonably be expected from disclosure is so significant that I find that balance lies against disclosure.

72. The applicant submitted that as examiners were a part of the agency, they were unable to impart information to it. I accept the respondent’s submissions on this point that the respondent is a corporation constituted by the Legal Profession Act 2004 that is to consist of 11 members. The examiners do not compose the Board.

Examination scripts- s14 Table 1(f) & (h)

73. The respondent submits that the disclosure of examination scripts would prejudice its functions and its ability to conduct examinations. It submits that the detriment that could reasonably be expected to arise are the undermining the finality of the examination marking process, plagiarism with reference to Redfern and undermining the integrity and fairness of the examinations. The applicant relies on his arguments with respect to these points.

74. For the reasons given in relation to the marking guides in relation to the finality of the examination marking process, plagiarism and fairness, I find that the respondent has established a reasonable basis for its expectation that disclosure of the examination scripts could be expected to prejudice the effectiveness of a function of the respondent or the effectiveness of its examination process and that the scope of each consideration is co-extensive.

75. I attribute a very high weighting to this public interest consideration against disclosure.

Examination scripts – provided in confidence- s14 Table 1 (g)

76. The respondent submitted and provided uncontroverted oral and written evidence to the effect that examinations are conducted under strict guidelines and security procedures set out in the Course Handbook and the Supervisors document. Examination scripts are stored, handled, used and disposed of under strict protocols. These are all relevant factors.

77. The applicant submitted amongst other matters that once the examinations had been marked, the need for confidentiality is past. For reasons given earlier, this argument must fail.

Was there an express or implied understanding that a communication is for a limited purpose?

78. I am satisfied by the guidelines and security procedures set out in the Course Handbook that there was an express understanding between the respondent and students that completed examination booklets are provided to the respondent for a limited purpose – the ascertainment of a mark towards subject and course completion and possible graduation. If students have not read the Handbook, I am satisfied that the requisite common understanding can be implied by the usual business practices of the respondent and by the way in which the examinations are conducted.

Was the common understanding between the parties founded in the public interest?

79. The context for the provision of the examination scripts and the character of the documents differ to that of marking guides. The examination scripts comprise information imparted to the respondent for the purpose of marking and deciding whether or not the student had met the course requirements.

80. The confider, the student, is a private citizen imparting information to a government entity. I infer from the respondent’s submissions and evidence that the common understanding between the parties is founded upon elements of the public interest decided above in relation to the effectiveness, conduct, and integrity of the examination process. Additionally the respondent expressed concern about the disclosure of examination scripts which did not pass or which were marginal in their grades. The respondent was concerned that other student’s may be misled into thinking that these answers were sufficient for a pass grade in the course. I am satisfied this detriment could also reasonably be expected to arise.

79. Equity will always protect against detriment to private interests through the disclosure of information provided in confidence. In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at [189], McHugh JA said

Once it is established that a person without authorisation is proposing to publish confidential information imparted to him in confidence during a private or business relationship, little more need be proved for Equity to restrain the publication.

And at further at [191]

Private citizens are entitled to protect or further their own interests, no matter how selfish they are in doing so. Consequently, the publication of confidential information which is detrimental to the private interest of a citizen is a legitimate concern of a court of Equity.

82. The student’s relationship with the respondent in this respect could be characterised as a private relationship. The information sought by the applicant concerns a private interest of a citizen. That being the case, it can be decided that the public interest consideration contained in Table 1(g) applies, in this case, in respect of private not public interests.

83. Two aspects of students’ private interests concern their privacy interests and reputational interests. Coincidentally, the protection of these private interests is recognised by GIPA to be in the public interest.

84. The respondent does not have authorisation to disclose any of the examination scripts. While the respondent sought to ascertain the students’ objections to disclosure, this process does not amount to an authorisation to disclose information provided in confidence, as suggested by the applicant.

85. For these reasons I find that disclosure of the examination scripts could reasonably be expected to disclose information provided to the respondent in confidence.

86. The high proportion of students objecting to disclosure assists in determining the weight accorded to this public interest consideration. Additionally, the relevant examinations are a part of a quality assurance process for the legal profession whose professional standards and reputational interests have at their core the maintenance of confidences. Students of the profession ought to be able to trust confidences they place in the respondent.

87. I accord a very high weighting to this public interest consideration against disclosure.

Examination scripts – reveal an individual’s personal information- s14 Table 3(a)

88. The respondent submits at [52] – [56] that the examination scripts contain the student’s identification number, seat number, session, venue, and marks awarded to the student by the examiner. The applicant submits he does not seek access to such personal information, except the marks.

89. While the information not sought by the applicant can be redacted, the respondent also submitted, with reference to Redfern at [30] that:

It is a notorious fact, not requiring specific proof, that the handwriting of each person is different and can assist in identifying the author of any handwritten passages.

90. I agree with the characterisation of handwriting contained in Redfern, and on that basis, the respondent’s argument that the identity of the person is apparent from the handwriting itself. As an individual’s identity is apparent from the handwriting, it is unnecessary for me to consider the applicant’s submissions as to whether or not the identity of the students is reasonably ascertainable.

91. I am satisfied that the disclosure of the examination scripts will have the effect of revealing an individual’s personal information. On the basis that a student’s identity is apparent from their handwriting, I am satisfied that the redacting of the information from the front of the examination paper as proposed by the applicant will not remove all of the personal information. I am also satisfied that the solution proposed by the applicant that he be granted access for the purposes of typing out the content of the examinations scripts is not a complete answer to the revealing of an individual’s personal information as it would be revealed to him in that process.

92. I accord a high weighting to this public interest consideration in light of the majority of the student’s objecting to disclosure and the sensitivity of the information.

Examination scripts – prejudice a student’s professional interests – Table 4(d)

93. The respondent submits that disclosing the fact a student has failed an examination could reasonably be expected to affect his or her reputation or ability to gain employment in the future. The respondent has made this submission in light of the student’s s54 consultation responses.

94. The applicant argues that employers typically ask law graduates for their academic marks in recruitment processes, so it was difficult to see how disclosure would present a detriment to professional interests. Employment prospects comprise only one element of what could be considered to be professional interests. The applicant also argues that if a law graduate has a reputation that is inconsistent with his or her academic performance, then it is a false reputation which is not a ‘legitimate professional interest.’ I am not persuaded by either argument because they ignore a range of possibilities such as the student later resitting the exam and achieving a far better result and that a poor result in one exam does not necessarily reflect the student’s overall result or capabilities.

95. The applicant argues that disclosure of the examination scripts without the students’ names makes it a remote possibility that the students’ identities will be matched to the results. I agree that the possibility is low but in an era of digital innovation, the possibility is a real one. Both this and the applicant’s submission that employers look to the academic record of a law graduate as a part of recruitment processes, show that the respondent’s expectation of the detriment occurring is reasonable.

96. I accord a low weighting to this public interest consideration.

97. In weighing all the public interest considerations in favour of disclosure and those against disclosure, I am satisfied that the considerations against disclosure override those in favour of disclosure. It might be of assistance to the parties to comment that I am satisfied that the public interest consideration concerning the disclosure of information provided in confidence, in and of itself sufficiently overrides the public interest considerations in favour of disclosure of the examination scripts.

Examination result - reveal personal information- Table 3(a)

98. The information in dispute includes spreadsheets with results obtained by other students with respect to assignment and examination marks in a range of subjects for a number of terms.

99. The respondent has submitted that the disclosure of students’ examination results would reveal an individual’s personal information on the basis that even if the names were redacted from the results sheets, because of the small number of students involved, and the other published information, it may be possible to ‘piece together’ the identities of the student’s results. The respondent relies upon its arguments in relation to the marking guides to claim that disclosure of examination results could reasonably be expected to prejudice the effective exercise of the agency’s functions and to prejudice its examination process.

100. The applicant has submitted that he is not seeking identifying information which can be redacted, effectively anonymising the information. The applicant relies on his earlier arguments with respect to the other public interest considerations.

101. I am persuaded by the respondent’s argument that it may be possible for information to be pieced together providing a reasonable basis for the expectation that the disclosure of anonymised information may still reveal the personal information of students.

102. I accord a high weight to this consideration.

103. Because of the different nature of the information contained in the examination results, I do not accept that many of the same arguments raised in relation to the marking guides and examination scripts, apply to the examination results. I do however accept the respondent’s submission that disclosure of the information could reasonably be expected to have the effect of undermining the finality of the examination process because the information may be used for further argumentation. ([47]-[49] Resp sub 1410640) I also accept that there may be detriment to the respondent’s administrative tasks as a result of that. I accord a high weight to this consideration.

104. In balancing the public interest considerations in favour of disclosure identified earlier against the public interest considerations against disclosure, I am satisfied that there is an overriding public interest against disclosure of the examination results.

Order

For the reasons set out above, I make the following orders:

1. Application number 1410716 is dismissed pursuant to s 55 (1)(a) of the Civil and Administrative Tribunal Act 2013.

2. The decision to refuse access to examination results and draft examiner’s comments/marking guide in application number 1410640 is affirmed.

3. The decision to refuse access to marking guides and examination scripts in application numbers 1510502 and 1510124 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 August 2015