FOI INTERNAL REVIEW DECISION
3 June 2016
F16/27-28
Mr Josh Jones
Right to Know website: www.righttoknow.org.au
Dear Mr Jones
Your FOI internal review request – internal email between Steve Croft and Peter
Matheson dated Monday 8 February 2016
I refer to your to your posting on the Right to Know website (
Website) on 8 April 2016 to the
Australian Curriculum, Assessment and Reporting Authority (
ACARA), which ACARA
received on 9 April 2016, seeking access to documents under the
Freedom of Information Act
1982 (Commonwealth) (
FOI Act) and our subsequent correspondence.
1.
Your initial internal review request
I confirm that your initial request for internal review, posted on the Website on 8 April 2016,
was as follows:
“Dear Australian Curriculum, Assessment and Reporting Authority,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Australian Curriculum, Assessment and
Reporting Authority's handling of my FOI request 'ACARA killed a website?'.
There's two things. There's nothing about how old were the documents you looked for
so maybe there's lots of times you sent emails or letters to say someone has to take
something off of a website from before January 2016 and you should have sent it to me.
Did you really only ever ask someone to take something off this year? Maybe but I don't
think so.
Also you said there's stuff you cut out because it could let people source data from the
My School web site. About what you cut out I don't think there's good reasons because
anyone can see how to get stuff from My School. It's not like it's this awesome locked
iPhone. You can get myschool stuff by every page or maybe get it totally at once.
For totally at once maybe there's an SQL exploit. It's not new. There's hundreds of SQL
exploits on the web. So if it's not about a zero-day exploit (why don't you fix it!), why
would you blank out the idea in what you sent me. Anyhow that's hacking.
Or else you can do it one page at a time. There's alot of ways you can do it like using
webscraping service or else Google "webscraping service" and choose. You don't care
how there going to do it. So, if you're not advertising WeScrapeMyschool.com.au ;) why
should you chop something about webscraping out in what you sent me. Also you can
use your own catpcha bypass or hire one. Obvious. Google captcha defeat and do
whatever, so why cut out Captcha Bypass in what you sent me. Or you just look at the
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pages and save whatever. It's kinda slow but like really really obvious so why chop that
out. If two people share it its half the time. Crowdsource 200 people and its less.
Is there anything else? I don't think so so why should you delete it.
A full history of my FOI request and all correspondence is available on the Internet at
this address: https://www.righttoknow.org.au/request/a...
Yours faithfully,
Josh Jones”
2.
Practical refusal reason
By way of summary, I confirm that:
a. On 6 May 2016, I made a decision that a practical refusal reason existed in relation to
your internal review request, as the work involved in processing your request would have
substantially and unreasonably diverted the resources of ACARA from its other
operations: s.24AA(1)(a)(i) of the FOI Act. My decision was posted on the Website on 6
May 2016.
b. Subsequently, there have been a number of posts on the Website between yourself and
a member of my staff to narrow the scope of your request. I understand that a revised
request has now been agreed (heading [3]). A summary of the posts since your internal
review request is noted under heading [4].
I am satisfied that a practical refusal reason no longer exists in relation to your revised
request.
3.
Your revised request
Your revised request is for the internal ACARA email from Steve Croft to Peter Matheson
dated 8 February 2016 and sent at 12.23pm and with the subject line “Re: Breach of legal
rights – Australian Curriculum, Assessment and Reporting Authority – F11/353-25”.
4. Correspondence relating to your internal review request
I note that all of the correspondence between yourself and an ACARA staff member in
relation to your request for internal review has been uploaded to the Website. For the sake
of completeness, I summarise the relevant correspondence in the table below.
Date of
To/From
Summary of content
posting
8 April 2016
Your posting on the Website
Your internal review request
6 May 2016
My letter to you, posted on the Advising that a practical refusal reason
Website
existed in relation to your internal
review request
8 May 2016
Your posting on the Website
Re-stating your internal review request
10 May 2016
Peter Matheson’s posting on the Seeking to clarify scope
Website
14 May 2016
Your posting on the Website
Confirming scope
23 May 2016
Peter Matheson’s posting on the Advising on timing of internal review
Website
decision
25 May 2016
Your posting on the Website
Confirming timing
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5. Timing of my decision
In my practical refusal letter of 6 May 2016, I foreshadowed that the 30 day time limit to
provide you with my internal review decision will have expired by the time my staff have
clarified with you the scope of your request.
The 30 day deadline expired on Monday 9 May 2016. The document in scope was clarified
on Saturday 14 May 2016.
I note that Peter Matheson advised you on Monday 23 May 2016 that I would be providing
you with my internal review decision by close of business on Friday 3 June 2016. On
Wednesday 25 May 2016 you agreed with the timing of release of my decision.
6. My decision
I have identified one (1) document relevant to your amended internal review request, being
the internal ACARA email from Steve Croft to Peter Matheson dated 8 February 2016 and
sent at 12.23pm and with the subject line “Re: Breach of legal rights – Australian Curriculum,
Assessment and Reporting Authority – F11/353-25” (
Email).
I decide to release the Email in part, and enclose a copy of the redacted Email. My reasons
for decision in relation to the redactions (
Email Redactions) are at
Attachment 1 and
document details are at
Attachment 2.
I note that the Email is contained within a chain of email documents. These other documents
are outside the scope of your amended internal review request. I have redacted these other
documents on the grounds of relevance, in accordance with your agreement regarding
scope. These redactions are detailed in
Attachment 2.
7. Decision On Charges
The
Freedom of Information (Fees and Charges) Regulations (
Regulations) prescribes the
charges that can be levied in respect of a request for access to a document or the provision
of access to a document. These charges are set out in the Regulations and are for search
and retrieval of documents, decision making and provision of access (for example, copying
and postage).
Sub-regulation 3(1) of the Regulations provides an agency with a discretion as to whether it
will impose any charge. In relation to this request, I have decided
not to impose a charge.
8. Review by Information Commissioner
You have the option of seeking a merits review by the Information Commissioner. For more
information, please refer t
o FOI Fact Sheet 12, authorised by the Office of the Australian
Information Commissioner.
9. Complaints to the Commonwealth Ombudsman
If you are not satisfied with the way a Commonwealth agency has processed your Freedom
of Information request, you can complain to the
Commonwealth Ombudsman. The
Ombudsman cannot review the merits of FOI decisions.
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Attachment 1 - Summary of reasons for my decision
In summary, the reasons for my decision are:
a.
s.47B(a) of the FOI Act – I find that the Email Redactions are conditionally exempt
under s.47B(a) of the FOI Act (Commonwealth/State relations). I find that:
The Email Redactions contain information on how to override measures
implemented on the
My School website (
My School) to protect the published
data. These measures are designed to make it more difficult for members of the
public to scrape data from
My School for the purpose of creating simplistic
school league tables.
The Education Council has said ‘No” to the publication of simplistic school
league tables on at least six (6) occasions (
heading 6.4), due to the harms that
can be caused to schooling communities, teachers, parents and students, and
the concerns raised by principals’ associations and teacher unions, amongst
other stakeholders.
Release of the Email Redactions would run contrary to the directions of the
Education Council to ACARA to take measures to prevent the publication of
simplistic school league tables.
As part of its functions, ACARA is required to act in accordance with the
directions of the Education Council under s.7(1) of the
Australian Curriculum,
Assessment and Reporting Authority Act 2008 (Cth) (
ACARA Act).
Disclosing the Email Redactions would cause ACARA to breach s.7(1) of the
ACARA Act.
I find that release of the Email Redactions under FOI would:
adversely affect the continued level of trust or co-operation in inter-jurisdictional
relationships; and
adversely affect the administration of multiple continuing Commonwealth–State
projects being managed by ACARA.
b.
s.47E(d) of the FOI Act – The Email Redactions are also conditionally exempt under
s.47E(d) of the FOI Act (substantial adverse effect on the proper and efficient conduct
of ACARA’s operations). I find that release of the Email Redactions by ACARA, in
contravention of the Education Council’s directions, would cause ACARA to breach
s.7(1) of the ACARA Act. I find that this would, or could reasonably be expected to,
lead to a loss of confidence in ACARA by nine (9) Education Ministers and nine (9)
chief executives of education departments and result in ACARA being significantly
impeded in carrying out its statutory functions.
c.
Public interest – There is some public interest in knowing about the Email
Redactions. However I note that release of the Email Redactions would be contrary to
the directions of the Education Council. I also note ACARA’s obligation under s.7(1) of
the ACARA Act to comply with the directions of the Education Council. In weighing the
public interest, I consider that the continued cooperation and collaboration of the
Commonwealth, States and Territories to further strategic policy and implement policy
in relation to school education outweighs the public interest in disclosing the Email
Redactions.
d.
Irrelevant material – I find that the document relevant to your internal review request
is part of an email chain containing irrelevant material.
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The agreed scope comprises only the email from Steve Croft to Peter Matheson dated
8 February 2016 and sent at 12.23pm. I note your posting of 14 May 2016 on the
Website in this regard, agreeing scope. I have redacted the other emails that are part
of this email chain, on the grounds of relevance. I have noted the redactions in
Attachment 2 and in the released set of documents.
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Attachment 1 - Reasons for my decision
1.
Material taken into account
In making my decision, I have had regard to the following:
the terms of your amended request;
the documents to which you sought access;
relevant provisions of the FOI Act;
advice from ACARA staff with responsibility for matters relating to the documents to
which you sought access;
the
Commissioner’s Guidelines, version 1.2, March 2013, Part 6 (
Commissioner’s
Guidelines).
2.
My Decision
I have identified one (1) document relevant to your amended internal review request, being
the internal ACARA email from Steve Croft to Peter Matheson dated 8 February 2016 and
sent at 12.23pm and with the subject line “Re: Breach of legal rights – Australian Curriculum,
Assessment and Reporting Authority – F11/353-25” (
Email).
I decide to release the Email in part, and enclose a copy of the redacted Email. My reasons
for decision in relation to the redactions (
Email Redactions) are below and document
details are at
Attachment 2.
I note that the Email is contained within a chain of email documents. These other documents
are outside the scope of your amended internal review request. I have redacted these other
documents on the grounds of relevance, in accordance with your agreement regarding
scope. These redactions are detailed in
Attachment 2.
3.
Diamond Decision
I refer to the decision of the Administrative Appeals Tribunal (
AAT) in the matter of
Mark R
Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and
Reporting Authority [2014] AATA 707 at (
Diamond Decision). In my view, the Email
Redactions concern the same issue as in the Diamond Decision (simplistic league tables).
In this case it is
not about the
My School database (covered in the Diamond Decision).
Instead, it is about the Email Redactions that contain information on how to override the
measures implemented on
My School to protect the published data.
I find that the fundamental issues concerning the capacity for simplistic league tables to
undermine the work that ACARA and school authorities are trying to achieve, which were
canvassed in the Diamond Decision, arise also in this matter.
In the Diamond Decision, the AAT affirmed the decision of the Freedom of Information
Commissioner to refuse to grant access to the document sought by Dr Diamond in his
request (the
My School database), except for the list of schools. The Diamond Decision runs
to 88 pages. It is a unanimous decision of Deputy President S.A. Forgie and Ms S. Taglieri,
Member. It answers the submissions put by Dr Diamond in that case.
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In my view, the Diamond Decision provides clear and cogent reasoning. It is an authoritative
decision from the highest merits review body in the Commonwealth system. In making my
decision I have had careful regard to the Diamond Decision.
4.
ACARA’s position regarding school league tables
The issue of the publication of simplistic school league tables is important to us and our
stakeholders, for good reason. Many of those reasons were canvassed in the Diamond
Decision.
In summary, the former Standing Council on School Education and Early Childhood, now the
Education Council, has expressed its opposition to simplistic school league tables on at least
six (6) different occasions [
heading 6.4]. In addition, the Education Council has also directed
ACARA on three (3) occasions to report to it on the work that ACARA is doing to prevent the
publication of school league tables [
heading 6.6].
Under s.7(1) of the
Australian Curriculum, Assessment and Reporting Authority Act 2008
(Cth) (
ACARA Act), ACARA is required to:
“perform its functions and exercise its powers in accordance with any directions given
to it by the Ministerial Council in writing”.
ACARA’s position, put simply, is that we have no option but to put into place strategies to
minimise the risk that third parties produce school league tables, and also to do what is
necessary to prevent the publication of school league tables, in order to comply with
previous directions of the former Standing Council (now Education Council).
5.
Contextual factors surrounding the Email Redactions
In January 2016 ACARA discovered that a number of public websites had published data
sourced from
My School. One of the websites w
as Figshare. On 20 January 2016 ACARA emailed the Figshare representative advising that publication
of this dataset breached ACARA’s legal rights (established by the terms of use) and
requested that this dataset be removed from the Figshare website.
Figshare did remove this dataset. It then referred the matter to an independent third party for
review and decision. To assist ACARA in preparing its response to Figshare, ACARA
undertook further analysis of the dataset which had been published. The Email Redactions
are part of that analysis, and support ACARA’s position that the data had been taken from
My School.
On 5 April 2016 the Figshare representative emailed ACARA advising that it will not be re-
publishing this dataset.
On 8 April 2016, three (3) days later, ACARA received your request for internal review.
6.
Contextual factors – directions provided by Education Council
6.1 Who is ACARA
ACARA was established under the ACARA Act. ACARA’s functions under section 6 of the
ACARA Act include, relevantly (and in summarised form):
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develop and administer a national school curriculum;
develop and administer national assessments; and
collect, manage and analyse student assessment data and other data relating to
schools and comparative school performance.
The work of ACARA relies on collaboration with a wide range of stakeholders including
Commonwealth, State and Territory governments.
6.2 What is a simplistic league table
I advise that a simplistic school league table, in the context of national tests, is a table in
hard copy or online format which ranks or sorts schools simply on the basis of performance
in tests, without taking into account a range of other contextual factors, such as family
background, school location (metropolitan, remote, etc.), and other factors including
statistical uncertainty associated with performance indicators.
6.3 What is the Education Council
The Education Council (formerly the Standing Council on School Education and Early
Childhood) was launched on 1 July 2014 and is one of eight (8) Councils established under
arrangements set by the Council of Australian Governments (
COAG). The Education
Council provides a forum through which strategic policy on early childhood development,
school and university education can be coordinated at the national level, and through which,
information can be shared and resources used collaboratively towards the achievement of
agreed objectives and priorities. For more information, see the
Education Council website. For the purposes of this decision, a reference to the Education Council also includes a
reference to the former Standing Council on School Education and Early Childhood and the
former Ministerial Council for Education, Early Childhood Development and Youth Affairs.
6.4 Education Council says No to simplistic league tables
I advise that the Education Council has said no to simplistic league tables on at least six (6)
separate occasions (see table below).
Item
Date
Document and T
Comments
No.
doc No.
1. December
Melbourne
Page 17:
2008
Declaration
“
In providing information on
(http://scseec.edu.au
schooling, governments will ensure
/site/DefaultSite/files
that school-based information is
ystem/documents/R
published responsibly, so that any
eports%20and%20p
public comparisons of schools will
ublications/Publicati
be fair, contain accurate and verified
ons/National%20goa
data, contextual information and a
ls%20for%20schooli
range of indicators. Governments
ng/National_Declara
will not themselves devise simplistic
tion_on_the_Educati
league tables or rankings and
onal_Goals_for_You
privacy wil be protected”.
ng_Australians.pdf)
2. June 2009
Principles and
Education Council document.
protocols for
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Item
Date
Document and T
Comments
No.
doc No.
reporting on
“governments wil not publish simplistic
schooling in
league tables or rankings, and will put in
Australia,
place strategies to manage the risk that
third parties may seek to produce such
(http://scseec.edu.au
tables or rankings”.
/site/DefaultSite/files
ystem/documents/R
eports%20and%20p
ublications/Publicati
ons/Measuring%20a
nd%20reporting%20
student%20performa
nce/Principles%20a
nd%20protocols%20
for%20reporting%20
on%20schooling%2
0in%20Australia.pdf)
3. 15 April
11th MCEECDYA
Ministers reaffirmed:
2011
Meeting, Melbourne,
15 April 2011
“
their opposition to simplistic league
tables as counterproductive and harmful
to the educational purpose of schooling”.
4. 8 July 2011
Twelfth MCEECDYA At page 2:
meeting
communique
“
Ministers reiterated their strong
opposition to the publication of league
(www.scseec.edu.au
tables arising from My School data and
/site/DefaultSite/files
discussed with ACARA further actions
ystem/documents/C
that could be taken against breaches of
ommuniques%20an
the My School terms and conditions of
d%20Media%20Rel
use”.
eases/Previous%20
Council%20info%20
statements/MCEEC
DYA%20meeting%2
0info%20statements
/C12_Communique.
pdf)
5. Feb 2012
ACARA’s data
Endorsed out of session by the
access protocols
Education Council in Feb 2012, Para
36:
(www.acara.edu.au/
verve/_resources/D1
“
Users must act in accordance with the
2_1573__ACARA_D
written agreement which limits use of the
ata_Access_Protoco
data to the purpose stated by the
ls_2012.pdf)
applicant, prohibits attempts to identify
information (e.g., names of schools) that
has been de-identified to a necessary
level to prevent identification of an
individual student and the publication of
rankings of schools (simplistic league
tables)”.
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Item
Date
Document and T
Comments
No.
doc No.
6. 20 April
SCSEEC Meeting
At the Education Council meeting on
2012
20th April 2012
Friday 20 April 2012, the Education
(not in communique) Council:
“Affirms its opposition to the publication of
simplistic league tables as
counterproductive and harmful to the
educational purpose of schooling”.
6.5 2011 My School release
In March 2011, the following occurred:
March 2011
ACARA published 2010 school data including aggregated school level
NAPLAN results on
My School (version 2.0)
(www.myschool.edu.au/)
March 2011
Media published tables of school comparisons (simplistic league tables)
based on 2010 NAPLAN data published on
My School
6.6 April 2011 direction provided by the Education Council to ACARA
As an example of the Education Council’s further directions to ACARA, on 15 April 2011 the
Education Council met in Melbourne. This meeting followed the media publication of league
tables in March 2011. At the 15 April 2011 Education Council meeting, the Education
Council:
“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; and
Asked 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”.
I have taken this quote from my affidavit dated 4 November 2013, at para 24, which was
used as evidence in the Diamond Decision.
7.
s.47B(a) – Commonwealth/State relations
7.1 s.47B(a) of the FOI Act
s.47B(a) of the FOI Act states “a document is conditionally exempt if disclosure of the
document under this Act would, or could reasonably be expected to, cause damage to
relations between the Commonwealth and a State”.
The Commissioner’s Guidelines Part 6 at paragraph [6.38] states:
“A decision maker may consider that disclosure would, or could reasonably be expected to
damage the
working relations of the Commonwealth and one or more States (s 47B(a)) (my
emphasis). ‘Working relations’ encompass all interactions of the Commonwealth and the
States1 from formal Commonwealth-State consultation processes such as the Council of
Australian Governments through to any working arrangements between agencies undertaken
as part of their day to day functions”.
1 See
Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607.
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7.2 Diamond Decision
In the Diamond Decision, the AAT found, relevantly, that:
a.
“…
there is no requirement that disclosure would, or could reasonably be expected to
cause damage to relations between the Commonwealth and all of the States; one
State is sufficient”: para 106.
b.
The Commonwealth, NSW and South Australia have identical positions. “
Although
differently expressed, it is clear from all three that there has been an expectation, as
well as a firm arrangement, that data supplied to the Commonwealth by means of
ACARA would be received, stored and managed by ACARA according to agreed
principles and protocols. The arrangements that South Australia has reached with its
schools and stakeholders is dependent upon ACARA’s continuing to act in accordance
with those principles and protocols. Release of the data would, in South Australia’s
view, have the potential to result in industrial disputes that could see schools
withdrawing from the NAPLAN testing regime”: para 108.
7.3 Email Redactions
I find that the Email Redactions are conditionally exempt under s.47B(a) of the FOI Act. I find
that:
a. The Email Redactions contain information on how to override the measures implemented
on
My School to protect the published data. These measures are designed to make it
more difficult for members of the public to scrape data from
My School for the purpose of
creating simplistic school league tables.
b. The Education Council has said ‘No” to the publication of simplistic school league tables
on at least six (6) occasions (
heading 6.4), due to the harms that can be caused to
schooling communities, teachers, parents and students, and the significant concerns
expressed by principals’ associations and unions, amongst other stakeholders.
c. In addition, the Education Council has directed ACARA to provide information on
“what
action it intends to take in relation to breaches of the My School website’s terms and
conditions” (heading 6.6).
d. Release of the Email Redactions would run contrary to the directions of the Education
Council.
e. As part of its functions, ACARA is required to act in accordance with the directions of the
Education Council under s.7(1) of the
Australian Curriculum, Assessment and Reporting
Authority Act 2008 (Cth) (
ACARA Act).
f. Releasing the Email Redactions under FOI would cause ACARA to breach s.7(1) of the
ACARA Act.
g. In these circumstances, adopting the reasoning and findings in the Diamond Decision, it
is reasonable to expect that such a breach of s.7(1) of the ACARA Act by ACARA would
cause Commonwealth-State relations within the context of the Education Council to
suffer as a consequence. This could in turn be expected to undermine the willingness of
the Education Council and its members to work cooperatively with the Commonwealth
(through ACARA or otherwise) on national education initiatives.
I find that release of the Email Redactions under FOI would fundamentally:
a. adversely affect the continued level of trust or co-operation in inter-jurisdictional
relationships; and
b. adversely affect the administration of multiple continuing Commonwealth–State projects
being managed by ACARA.
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I am satisfied that this amounts to damage to Commonwealth-State relations.
8.
s.47E(d) of the FOI Act - substantial adverse effect on the proper and efficient
conduct of ACARA’s operations
8.1 s.47E(d) of the FOI Act
s.47E(d) of the FOI Act states:
“A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
….
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency”.
The Commissioner’s Guidelines Part 6 at paragraph [6.110] notes that the AAT has upheld
the exemption where it was established that disclosure of the document could prejudice the
agency’s ability to perform its statutory functions2.
8.2 Diamond Decision
In the Diamond Decision, the AAT concluded that s.47E(d) of the FOI Act applied to
conditionally exempt the
My School database, except for the list of schools. In applying this
conditional exemption the Tribunal looked at ACARA’s functions under section 6 of the
ACARA Act. The AAT explores this conditional exemption at paras [112 – 120] of the
Diamond Decision. I rely on this reasoning and it is not necessary for me to cover the same
ground.
8.3 Applying Diamond Decision
Relevantly for this matter, ACARA’s statutory functions include
“publish information relating
to school education, including information relating to comparative school performance”:
s.6(e) of the ACARA Act.
The Education Council is not an advisory body but rather a governing body that ACARA is
statutorily obliged to follow: s.7(1) of the ACARA Act.
I find that release of the Email Redactions by ACARA, in contravention of the Education
Council’s directions, would cause ACARA to breach s.7(1) of the ACARA Act. I find that this
would, or could reasonably be expected to:
a. cause a loss of confidence in ACARA by nine (9) Education Ministers and nine (9) chief
executives of education departments;
b. jeopardise existing trust and goodwill in ACARA;
c. cause unrest among the nine (9) Education Ministers, the nine (9) departmental chief
executives, the Secretariat to the Education Council and the Federal Minister’s office;
d. cause a likely loss of future work, funding and/or other vital support; and
e. significantly impede ACARA in carrying out its statutory functions, including
“publish
information relating to school education, including information relating to comparative
school performance”: s.6(e) of the ACARA Act.
2
Re Telstra Australia Limited and Australian Competition and Consumer Commission [2000] AATA 71.
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I also note the findings of the Tribunal members in the Diamond Decision that
“Release of
the data would, in South Australia’s view, have the potential to result in industrial disputes
that could see schools withdrawing from the NAPLAN testing regime”: para 108. It is
important that schools do
not withdraw from the NAPLAN tests. It is critical that ACARA
continues to report on the performance of students over time, noting that a key benefit of
NAPLAN is to maintain the reporting of long-term trends.
It is my judgment that release of the Email Redactions under FOI would, or could reasonably
be expected to, prejudice ACARA’s ability to perform its statutory functions. I am satisfied
that this amounts to having a “substantial adverse effect on the proper and efficient conduct
of the operations” of ACARA.
9.
Public interest
It is my decision that the Email Redactions are conditionally exempt under both of s.47B(a)
and s.47E(d) of the FOI Act. S.11A(5) of the FOI Act provides that if a document is
conditionally exempt, it must be disclosed ‘unless (in the circumstances) access to the
document at that time would, on balance, be contrary to the public interest’.
I have taken into account the following factors in making my decision:
In favour of disclosure:
Of the four (4) factors favouring disclosure set out in s.11B(3) of the FOI Act, one is clearly
not relevant (allow a person to access his or her own personal information). The other three
(3) factors are considered below:
a.
promoting the objects of the FOI Act (including all the matters set out in sections 3 and
3A) – There is some public interest in knowing about the Email Redactions;
b.
informing debate on a matter of public importance – In my view, this is covered by the
point above; and
c.
promoting effective oversight of public expenditure – the Email Redactions do
not contain any information in relation to ACARA’s expenditure. I place no weight against
this item.
Against disclosure:
The FOI Act does not specify any factors against disclosure. However the Guidelines include
a non-exhaustive list of such factors3. Of those factors listed in the Guidelines, the relevant
factors for this decision are that disclosure:
“(h) could reasonably be expected to prejudice an agency’s ability to obtain confidential
information”.
I find that release of the Email Redactions would be:
a.
contrary to the directions of the Education Council; and
b.
contrary to ACARA’s obligation under s.7(1) of the ACARA Act to comply with the
directions of the Education Council.
3 Guidelines [6.29].
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I find that if ACARA discloses the Email Redactions under FOI, the Education Council would
be less likely to share papers and other documents in relation to its decisions, all of which
are confidential, and which would be of benefit to ACARA.
The work of ACARA relies on collaboration with a wide range of stakeholders including
Commonwealth, State and Territory governments. I consider that the continued cooperation
and collaboration of the Commonwealth, States and Territories to further strategic policy and
implement policy in relation to school education outweighs the public interest in disclosing
the Email Redactions.
“
(k) could reasonably be expected to harm the interests of an individual or group of
individuals”
The publication of league tables creates a strong risk of harm to schools and students. This
has been expressed many times before, including, and not limited to, many of ACARA’s FOI
decisions uploaded to the Website.
I refer to the affidavit of Dr Jennifer Anne Donovan, General Manager, Strategic Information
and Reporting, within the New South Wales Department of Education and Communities,
affirmed on 4 November 2013, who was a witness before the AAT in the Diamond Decision
(
Dr Donovan’s Affidavit). At paragraph 10 of Dr Donovan’s affidavit, Dr Donovan states:
“10.
The NSW Department supported the concept of My School. However, from the
outset it was concerned about the delivery and presentation of data published by
My School. We were mindful of the risk of harm to schools and students if My
School generated tables ranking schools in particular geographical areas using
their aggregated NAPLAN scores (league tables), or if it labelled schools or
student groups as ‘the worst’ or ‘underperforming’. These concerns were largely
informed by the experience of the 1996 Year 12 cohort of Mount Druitt High
School, which the Daily Telegraph label ed as the “Class We Failed” in an article
published on 8 January 1997”.
It is clear that league tables are undesirable from a public policy perspective. Releasing the
Email Redactions under FOI risks encouraging their creation, or diluting the effectiveness of
the counter-measures ACARA has taken and might take in the future.
My finding
For all these reasons, I find that the factors against disclosure outweigh the factors in favour
of disclosure. I decide to
not release the Email Redactions under FOI.
10. Irrelevant material
Section 22(1)(a)(ii) of the FOI Act allows an agency to delete irrelevant material from a
document which is only partially relevant to an applicant’s FOI request. I find that the
document relevant to your internal review request is part of an email chain containing
irrelevant material.
The agreed scope comprises only the email from Steve Croft to Peter Matheson dated 8
February 2016 and sent at 12.23pm. I note your posting of 14 May 2016 on the Website in
this regard, agreeing scope. I have redacted the other emails that are part of this email
chain. I have noted the redactions in
Attachment 2 and in the released set of documents.
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Attachment 2
No.
Pgs
Date
Author
Addressee
Title of document
Decision
Exemption
Grounds for
section(s)
deleting
1.
2
8 February
Steve Croft
Peter Matheson
The internal ACARA
Release in
s.47B(a) and Damage relations
2016
email from Steve Croft
part
between the
to Peter Matheson
Commonwealth and
dated 8 February 2016
(document
a State; and
and sent at 12.23pm
marked to
and with the subject
indicate
s.47E(d)
Substantial adverse
line “Re: Breach of
exemption
effect on the proper
legal rights –
claim)
and efficient
Australian Curriculum,
conduct of the
Assessment and
operations of an
Reporting Authority –
agency.
F11/353-25”.
2.
6
5-8
Various
Various
Chain of email
Outside
s. 22(1)(a)(ii)
Outside scope and
February
correspondence titled
scope and
irrelevant to request,
2016
“Re: FW: Breach of
irrelevant to
as agreed by
legal rights –
request, as
Applicant
Australian Curriculum,
agreed by
Assessment and
Applicant
Reporting Authority –
F11/353-25”,
(document
excluding document
marked to
No. 1 noted above
indicate
exemption
claim)
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