University of Melbourne v McKean
[2008] VSC 325
•28 August 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8093 of 2007
| UNIVERSITY OF MELBOURNE | Appellant |
| v | |
| ZANE MCKEAN | Respondent |
No. 9087 of 2007
| UNIVERSITY OF MELBOURNE | Appellant |
| v | |
| ZANE MCKEAN | Respondent |
---
JUDGE: | Kyrou J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2008 | |
DATE OF JUDGMENT: | 28 August 2008 | |
CASE MAY BE CITED AS: | University of Melbourne v McKean | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 325 | |
---
Appeal from Victorian Civil and Administrative Tribunal – freedom of information.
Freedom of Information Act 1982 (Vic), s 34(4)(c) – examination papers, examiner’s report or similar document – marking guide – whether uses for which the document was prepared have been completed – s 5(1), definition of “document” – whether parts of document constitute separate documents.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Hanks QC and Ms M Richards | FOI Solutions |
| For the Respondent | Mr J Whelen | Russell Kennedy |
HIS HONOUR:
Introduction and summary
This is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) from orders made on 31 July 2007 by the Victorian Civil and Administrative Tribunal (“Tribunal”) in connection with two applications for review by Mr Zane McKean of two decisions of the University of Melbourne (“University”) to refuse access to documents under the Freedom of Information Act 1982 (Vic) (“FOI Act”).
By two separate requests under the FOI Act, Mr McKean sought access to various documents. The first request included the examination marking guide for the subject “Investments” and the second request included Mr McKean’s examination paper and the examination marking guide for the subject “Intermediate Personal Finance”. The University refused access, relying on the exemptions in s 30(1), which deals with “internal working documents”, and s 34(4)(c), which deals with examination papers and similar documents whose use has been completed. Mr McKean made a separate application for review to the Tribunal in respect of each of the University’s decisions. The Tribunal ordered that the documents be released to Mr McKean.
The University lodged a separate appeal to this Court in respect of each of the applications for review that were before the Tribunal. As the appeals raised similar issues, they were heard together. The exemption claimed under s 30(1) of the FOI Act was not the subject of the appeals to this Court. The issue that I have to determine is whether the Tribunal erred in law in deciding that the documents were not exempt under s 34(4)(c) of the FOI Act.
For the reasons set out in this judgment, I have concluded that the Tribunal did not err in law and that the appeals should be dismissed.
Facts and procedural history
On 7 August 2006, pursuant to the FOI Act, Mr McKean sought access to various documents in relation to the subject “Investments” that he had studied at the University in the first semester of 2006. On 22 December 2006, also pursuant to the FOI Act, he sought access to various documents in relation to the subject “Intermediate Personal Finance” that he had studied at the University in the second semester of 2006. Relevantly, the University refused access to the marking guide for the subject “Investments”, and to the marking guide and Mr McKean’s completed examination paper for the subject “Intermediate Personal Finance”. The marking guides set out correct answers to the examination questions for each paper to assist examiners in each subject.
Mr McKean sought review of each of the University’s decisions by the Tribunal in two separate applications. The University claimed that the two marking guides were exempt under both ss 30(1) and 34(4)(c) and that the examination paper was exempt under s 34(4)(c) of the FOI Act. The Tribunal heard the two applications together and ultimately delivered a single set of reasons dealing with both applications for review. The three documents in dispute were produced to the Tribunal and were inspected by it.
Before the Tribunal, the main evidence was given by Professor Paul Kofman, the head of the Department of Finance, through which the two subjects were offered by the University. In its reasons, the Tribunal summarised Professor Kofman’s evidence as follows:[1]
[1]McKean v University of Melbourne [2007] VCAT 1310, [9] (“Tribunal’s reasons”).
· for the two subjects in question, there was a relatively narrow syllabus;
· the same syllabus must be covered on each occasion the subjects are offered;
· the subject matter of the examination is largely quantitative, rather than qualitative;
· there is a limited amount of information that can be examined, so questions are “recycled” from year to year from a limited bank of questions. It is impractical to set fresh questions each year;
· disclosure of marking guides from a particular semester would enable students in a future semester to “learn by heart” answers to common questions without necessarily gaining the technical knowledge, giving them a false sense of their real level of knowledge;
· disclosure of marking guides would give a false sense that the material in the guides comprised “model answers” rather than being guides to what might be a correct answer;
· disclosure of the marking guides or examination paper would impact on the methods and procedures used by the University for the conduct of future examinations in these two subjects.
In his witness statement filed with the Tribunal, Professor Kofman stated that the nature of the examination in each of the two subjects is such that “there is a very limited bank of possible examination questions and the marking guide developed for use is reused extensively to set examinations in the future in relation to [the] subject”.[2] He said that the examinations are stored electronically on computer and that printed copies of these master copies are kept securely in filing cabinets when not in use.[3] The students’ individual examination papers (containing their answers) “are collected after examination has been concluded and are stored in locked cabinets according to University policy pending destruction in accordance with the Public Records Act”.[4] Attached to Professor Kofman’s witness statement was a Department of Finance “Examinations Policy and Procedures” document which describes a system of supervised inspection of examination papers. Within six months of results being released, a student can inspect his or her examination paper under supervision and discuss the results but cannot take a copy.
[2]Paragraph 9.
[3]Paragraph 11.
[4]Paragraph 11.
In oral evidence before the Tribunal, Professor Kofman said that a marking guide “in its very essence is used for that particular exam” and that while the marking guide “might well be used for future exams … it will not be the same piece of paper”.[5] Examinations are not replicated from year to year. However, some examination questions will appear on later exams and the marking guide for that question will also correlate with the earlier one. He said that while the exact marking guide – that is, the document in its entirety – is used only once, parts of it may be reused in the future in testing students’ knowledge of certain core components of the subject.[6] In relation to the examination paper, he said that its sole purpose was for the student to write answers on it and for it to be assessed.[7] The answers are not reused but the questions form part of a limited bank of questions.[8] The bank of questions is larger than the questions that appear on a particular examination. From year to year, the examination is not an identical examination paper; “there’s always the possibility to change a few numbers, but that does not change the core of the question”.[9]
[5]Transcript of Proceedings, McKean v University of Melbourne (Victorian Civil and Administrative Tribunal, Dwyer DP, 18 July 2007) 16.
[6]Transcript of Proceedings, McKean v University of Melbourne (Victorian Civil and Administrative Tribunal, Dwyer DP, 18 July 2007) 16-17.
[7]Transcript of Proceedings, McKean v University of Melbourne (Victorian Civil and Administrative Tribunal, Dwyer DP, 18 July 2007) 17.
[8]Transcript of Proceedings, McKean v University of Melbourne (Victorian Civil and Administrative Tribunal, Dwyer DP, 18 July 2007) 18.
[9]Transcript of Proceedings, McKean v University of Melbourne (Victorian Civil and Administrative Tribunal, Dwyer DP, 18 July 2007) 20.
The Tribunal concluded that the marking guides are not exempt under s 30(1) of the FOI Act. As that conclusion is not the subject of appeal to this Court, I do not consider it further.
The critical parts of the Tribunal’s reasoning in relation to the exemption under s 34(4)(c) of the FOI Act are as follows:
22… It was common ground … that the marking guides were a “similar document” for the purpose of [s 34(4)(c)]. The dispute under this provision therefore related solely to whether the use or uses for which the documents were prepared had been completed.
…
28For the University to discharge the onus of making out an exemption under s 34(4)(c), it would need to satisfy me that there was a further use of these documents and, moreover, that this was also a use “for which the document was prepared”. Mr Batskos [the University’s solicitor] simply argued that this further use was as part of a limited bank of questions and other material used from year to year within a narrow syllabus.
29On the wording of s 34(4)(c), I am not satisfied that this is the case. I agree with the applicant that, although drawn in part from a precedent bank, each of these three specific documents was “prepared” solely for use in the particular examination in the particular subject in the particular semester to which it related. The documents on their face confirm this. Although the documents may arguably serve another function within the Department, in forming part of a precedent bank of questions, that is not in my view a use “for which the document was prepared” in relation to either the examination paper or the marking guides. Each of the three documents had a particular use for which they were prepared. I am also satisfied that this use was “completed” at the end of the examination assessment period when the results were published. The University provided me with no argument or authority to suggest that I should give the words “prepared” and “completed” in s 34(4)(c) anything other than their ordinary meaning.
Based on this reasoning, the Tribunal concluded that none of the three documents are exempt under s 34(4)(c) of the FOI Act. The Tribunal said that it was accordingly unnecessary for it to consider whether the “public interest override” in s 50(4) of the FOI Act applied in relation to any of the documents. The Tribunal ordered that all three of the documents be released to Mr McKean.[10]
[10]This was subject to one exception. The copy of the marking guide for the subject “Investments” that was provided to the Tribunal contained a number of internal memoranda which set out procedures in relation to the security of examination information during the assessment process. The Tribunal held that those memoranda were exempt under s 30(1): paragraph 20 of the Tribunal’s reasons.
The University has appealed from those orders in two separate notices of appeal. The appeal in relation to the marking guide for the subject “Investments” is the subject of proceeding number 8093 of 2007. That in relation to the marking guide and examination paper for the subject “Intermediate Personal Finance” is the subject of proceeding number 9087 of 2007. It was common ground before me that the two notices of appeal raised relevantly identical issues, and in making submissions, the parties did not draw any relevant distinction between the marking guide for the subject “Investments” and the marking guide and examination paper for the subject “Intermediate Personal Finance”.
In essence, the notices of appeal raised three related issues: first, whether the Tribunal erred in failing to consider the effect of the definition of “document” in s 5(1) of the FOI Act on the application of the exemption in s 34(4)(c) in this case (namely, that each part of the documents in issue was itself a document because each was a copy, reproduction or duplicate or a part of a copy, reproduction or duplicate of other documents); second, whether the Tribunal erred in failing to have regard to what were said to be the discrete uses for which parts of each document in issue were prepared; and third, whether the Tribunal erred in failing to deal with what was said to be the submission seriously advanced before it that each document in issue consisted of discrete parts and each part was exempt from disclosure under s 34(4)(c).
The three documents in issue were produced to the Court and I inspected them.
Relevant provisions of the FOI Act
Section 34(4)(c) provides:
A document is an exempt document if … it is an examination paper, a paper submitted by a student in the course of an examination, an examiner’s report or similar document and the use or uses for which the document was prepared have not been completed.
As it was common ground before the Tribunal that the examination paper and each marking guide were “an examination paper” and “similar document” respectively for the purposes of s 34(4)(c), the critical issue for determination was whether “the use or uses for which [each] document was prepared have not been completed”.
Section 5(1) of the FOI Act defines “document” as follows:
document includes, in addition to a document in writing –
…
(d)any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
…
(f) anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them; and
(g)any copy, reproduction or duplicate of any thing referred to in paragraphs (a) to (f); and
(h)any part of a copy, reproduction or duplicate referred to in paragraph (g) …
Paragraphs (g) and (h) of the definition of “document” were inserted in the FOI Act in 2006 by s 19(1) of the Terrorism (Community Protection) (Further Amendment) Act 2006 (Vic). The additional paragraphs are similar to paragraphs (b) and (c) of the definition of “document” in s 4(1) of the Freedom of Information Act 1982 (Cth) (“Commonwealth FOI Act”). That definition commences “document includes … any of, or any part of any of, the following things”.
Parties’ submissions
Mr Hanks QC, who appeared before me with Ms Richards for the University, submitted that the Tribunal erred in law because it failed to consider a question it was bound to consider in determining whether the exemption under s 34(4)(c) of the FOI Act applied, namely whether the uses for which parts of the documents were prepared have not been completed. He submitted that while the Tribunal considered whether the uses for which the documents in their entirety were prepared had been completed, it failed to advert to the fact that “document” for the purposes of the FOI Act (as defined in s 5(1) of that Act) includes a part of a document – that is, that each part can itself be a “document”. He submitted that the Tribunal thereby failed to consider whether the uses for which parts of the documents had been prepared, had been completed, and that had the Tribunal asked itself that question, the undisputed evidence of Professor Kofman would have required a negative answer and a finding that the documents were exempt under s 34(4)(c) of the FOI Act. In Mr Hanks’ submission, this followed because it is clear from that evidence that the discrete parts of the examination paper and marking guides were intended to be available for use again, by forming part of the bank of questions and guides to answers for future examinations.
Mr Hanks submitted that the legal error of the Tribunal which resulted can be formulated in a number of different ways. He submitted that it can be put simply as a failure to ask and address the question that was directly raised by the review of the University’s decisions, as a failure to discharge its review jurisdiction, or as a failure to take into account relevant considerations. He further submitted that such a failure, however it is characterised, is an error of law of a kind that justifies allowing the appeals.[11]
[11]Craig v South Australia (1995) 184 CLR 163, 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 339-40 [41], 351 [82]; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, [47].
Mr Hanks also submitted, as a related point, that the purpose for which a document (such as the examination paper or either of the marking guides) is prepared cannot be construed in isolation from any discrete purpose for which parts of the document were prepared. He further submitted that the Tribunal’s attention was drawn to the definition of “document” in the FOI Act and to its significance in this matter, and that the Tribunal’s failure to consider the submissions made to it about that definition and whether the “parts” of the disputed documents were themselves “documents”, in circumstances where the submissions were seriously advanced and worthy of serious consideration, was an independent error of law in accordance with Dennis Willcox Pty Ltd v Federal Commissioner of Taxation[12] and cases that have applied Dennis Willcox.[13] I will refer to this as “the Dennis Willcox principle”. Mr Hanks relied on the following submissions made by the University’s solicitor, who appeared for the University before the Tribunal, as they are recorded in the transcript of the Tribunal hearing:[14]
Sir, we would submit that the reference in [s 34(4)(c)] and use of the word document, so where it says, “Or similar document”, and use and uses for which the document was prepared, the word document is actually defined in the Act. And as recently as June of last year [2006] it was clarified with the addition of paragraphs [(g) and (h)] which makes it clear that a document now also includes any copy, reproduction or duplicate of a vast number of things that are documents which obviously these are, but also any part of a copy, reproduction or duplicate. So any part of a document is still a document and should be interpreted as such, so the exemption can still apply to parts of a document.
[12](1988) 79 ALR 267, 276-7 (“Dennis Willcox”).
[13]Kalwy v Secretary, Department of Social Security (No 2) (1993) 32 ALD 451, 460-1; XYZ v State Trustees Ltd [2006] VSC 444, [42]; Victoria v Subramanian [2008] VSC 9, [14]. Compare Secretary, Department of Employment and Workplace Relations v Barrington (2006) 43 AAR 68; [2006] FCA 527, [28]-[32].
[14]Transcript of Proceedings, McKean v University of Melbourne (Victorian Civil and Administrative Tribunal, Dwyer DP, 18 July 2007) 24-5.
Mr Hanks conceded that if he did not succeed on the construction point, relating to what he submitted was the Tribunal’s failure to deal with the definition of “document” in the FOI Act and to have regard to the discrete uses for which parts of each document were prepared, then it would be difficult to see how he could succeed on the Dennis Willcox principle.
Mr Whelen, who appeared before me for Mr McKean, submitted that the Tribunal had properly considered the evidence before it and had made a finding of fact that the uses for which the documents were prepared had been completed. In relation to the Dennis Willcox principle, Mr Whelen submitted that the University’s submission based on the definition of “document” was not seriously advanced before the Tribunal as it was not part of the University’s written statement of legal contentions and was not put in oral submissions other than in response to a series of questions initiated by the Tribunal. Mr Whelen did not concede that the Tribunal failed to consider this matter. He submitted that the issue was not material in light of the absence of evidence supporting the University’s contention.[15] He submitted that, even if the Tribunal failed to consider the matter, such a failure did not give rise to a miscarriage of justice amounting to a vitiating error. He also drew attention to the fact that, unlike the definition of “document” in the Commonwealth FOI Act, the reference to parts of documents in s 5(1) of the FOI Act is confined to the copies, reproductions and duplicates referred to in paragraph (g) of the definition.
[15]Mr Whelen relied on Ross v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 718, 722; [1994] FCA 1409, [31]-[33] and Borg v Minister for Immigration and Multicultural Affairs [1999] FCA 588, [28].
Decision
The definition of “document” in the FOI Act is an inclusive definition. It makes it clear that where the same information appears in different forms, such as a “document in writing”, a “disc”, a “tape” or a “device” such as a computer server, each form of the information is a separate document. A copy of a document can be a separate document from the original. Where a request seeks access to all documents containing particular information (such as a request for “all documents referring to the chairman’s remuneration for this year”), all forms in which that information appears fall within the request. However, where the request seeks access to a particular document (such as a request for “the chairman’s group certificate for this year”), only that document falls within the request notwithstanding that the same information may appear in other documents.
The fact that when the definition of “document” in s 5(1) was amended in 2006, the reference to part of a document was confined to the new paragraph (h) rather than also being included in the opening words of the definition as in the definition in the Commonwealth FOI Act, creates a doubt as to whether a part of a document can constitute a separate document for all purposes under the FOI Act. By virtue of s 25, which enables deletion of exempt or irrelevant material, this may not cause a problem in practice in a large number of cases. Thus, a request for access to a particular part of a document (such as a specific page of a multi-page document) would be valid, as the pages that are not within the request can be treated as irrelevant under s 25 and therefore the applicant can receive only the page sought (assuming it is not exempt). Likewise, where parts of a document are exempt and parts are not, s 25 enables the granting of access to those parts that are not exempt where the requirements of the section are satisfied.
In the present case, in response to Mr McKean’s requests for access, the University relevantly identified three specific documents as falling within his requests. Those documents did not include the bank of examination questions that are stored electronically and in master copies. The subject matter of the applications for review before the Tribunal in relation to s 34(4)(c) was whether the uses for which the three documents were prepared had been completed. The issue was not whether the uses for which the information in the three documents, as it appears in other documents held by the University, was prepared or generated had been completed.
A fair reading of Professor Kofman’s written statement and oral evidence indicates that the crux of his evidence was:
(a)the three specific documents that are the subject of Mr McKean’s requests are used only once for the particular examination, and the documents as a whole are not used again;
(b)the examination questions and correct answers to those questions that appear in the three specific documents are drawn from a larger number of questions and answers in the bank of questions kept by the Department in electronic form and in the form of master copies;
(c)in future years, examination papers for the relevant subject may contain substantially similar questions, with corresponding similar answers in the marking guide for the examination paper, drawn from the Department’s bank of questions and answers; and
(d)parts of the examination paper and marking guides in issue in the proceeding may be reused in the future, not in the sense that words and figures will be copied or adapted from those documents themselves, but in the sense that the relevant words and figures will be copied or adapted from the Department’s bank of questions and answers.
Paragraph 29 of the Tribunal’s reasons for decision needs to be read in light of Professor Kofman’s evidence as set out above. The Tribunal’s finding that the three specific documents were prepared solely for use in the relevant particular examination and that the particular use has been completed was open to it. The Tribunal’s statement that “the documents may arguably serve another function within the Department, in forming part of a precedent bank of questions” is simply a repetition of the Tribunal’s earlier statement that the information in the three documents is drawn from the precedent bank. Although the Tribunal’s terminology is slightly confusing, the context indicates that the Tribunal concluded that while the information in the precedent bank may be reused, the uses for which the three documents were prepared were completed at the end of the examination assessment period when the results were published. Read in this way, the Tribunal’s conclusion was open to it based on Professor Kofman’s evidence. The Tribunal therefore correctly decided that the documents were not exempt under s 34(4)(c). It asked itself the correct legal question and, on the facts that it found, answered that question correctly.
The above analysis is supported by comparing the exemption in s 34(4)(c) with the other exemptions in s 34, which are based not on uses of the document but on the nature of the information in the document, or the consequences of disclosure of that information. For example, s 34(1)(b) provides that a document is exempt if its disclosure under the FOI Act would disclose information acquired by an agency from a commercial undertaking and the information relates to “matters of a business, commercial or financial nature and the disclosure of the information would be likely to expose the undertaking unreasonably to disadvantage”. Mr Hanks’ submissions would have had greater force if s 34(4)(c) were worded along the lines of s 34(1)(b), namely in terms of whether, for example, disclosure of the examination paper would disclose information about potential future examination questions and that disclosure would expose the University to disadvantage. However, that is not what s 34(4)(c) provides. It depends for its operation on whether the uses of the document that is the subject of the request for access have been completed, not whether disclosure of the information in the document would disclose particular information that would cause disadvantage to the University. A similar comparison can be made between s 34(4)(c) and s 34(4)(a) and (b).
Mr Hanks submitted that although Professor Kofman conceded in cross-examination that the uses of the documents, taken as a whole, had been completed, he consistently stated in his evidence that the uses for which parts of the documents had been prepared had not been completed. However, it is clear from Professor Kofman’s evidence that what the Professor meant was that the questions and answers in the documents, as they appear in the Department’s bank of questions and answers, were available for reuse, not that any parts of the examination paper and marking guides in issue would be reused. This is made clear, as Mr Whelen submitted, by the fact that, in his evidence, Professor Kofman neither identified any particular part of the three documents in issue that would be reused nor indicated how each particular “part” within a document would be identified. This failure inevitably resulted in Mr Hanks submitting that all parts (that is, the whole of each of the documents) were available to be reused. However, this submission is logically inconsistent with Professor Kofman’s evidence that the uses for which the documents, taken as a whole, were prepared had been completed.
Given that Professor Kofman’s evidence was that the uses for which the documents, taken as a whole, had been prepared were completed, and that he did not identify any particular parts of the documents whose use had not been completed, the Tribunal correctly found that the University had failed to discharge its onus of proof in establishing the exemption in s 34(4)(c).[16]
[16]See s 55(2) of the FOI Act.
As for Mr Hanks’ submission that the Tribunal failed to advert to the fact that the definition of “document” includes part of a document, it is far from clear how paragraph (h) of the definition of “document” applies in this case. Professor Kofman’s evidence was that examination papers from year to year are not identical and that the bank of questions contains a larger number of questions than appear in any particular examination paper. Logically, the same would apply to the answers set out in any particular marking guide. It follows that the three documents in issue are not complete or exact copies, reproductions or duplicates of any other document. Even if it is accepted that the marking guides and the examination paper were copies, reproductions or duplicates of other documents in the University’s bank of questions and therefore fell within paragraph (g) of the definition, and that paragraph (h) of the definition is applicable, it is implicit in paragraphs 28 and 29 of the Tribunal’s reasons (particularly the two references to “bank of questions”) that it was not satisfied that the uses for which the documents, whether considered as a whole or in their constituent parts, had been prepared, had not been completed. The Tribunal was entitled to conclude that the University failed to establish that any part of the three documents in issue was prepared for uses that have not been completed.
In relation to the Dennis Willcox principle, in light of the above conclusions and Mr Hanks’ concession referred to in paragraph 23 of this judgment, it is not necessary for me to consider questions such as whether the relevant submission was seriously advanced before the Tribunal and worthy of serious consideration. Nor do I need to consider the suggestion in Secretary, Department of Employment and Workplace Relations v Barrington[17] that Dennis Willcox may no longer be good law in light of Minister for Immigration and Multicultural Affairs v Yusuf.[18]
[17](2006) 43 AAR 68; [2006] FCA 527, [28]-[32].
[18](2001) 206 CLR 323.
It follows that each of Mr Hanks’ different formulations of the legal errors that he submitted were made by the Tribunal fails.
Proposed order
The appeals will be dismissed.
I will hear the parties on the precise form of the orders and on the question of costs.
---
0
6
0