Request for correspondence relating to terms of use of My School
Dear FOI Officer,
Background
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In 2010 and 2011 I applied to ACARA for access to certain documents, including NAPLAN data, published on the My School (http://www.myschool.edu.au) website. The request was refused. ACARA was successful in defending its decision both at my appeal to the Australian Information Commissioner, [2013] AICmr 57 (http://www.austlii.edu.au/au/cases/cth/A...) and my appeal to the Administrative Appeals Tribunal, [2014] AATA 707 (http://www.austlii.edu.au/au/cases/cth/A...).
In its decision the Tribunal noted at paragraphs 32 and 35 that Mr Randall (CEO of ACARA) had agreed under cross-examination that the Australian newspaper has published information that appears to be in breach of the My School website terms of use. In addition, it became evident that ACARA has written to the Australian regarding the matter.
Request
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I request access to copies of the letters, emails or other correspondence from ACARA to the Australian newspaper regarding apparent breaches of the terms of use of the My School website by the Australian (including, for instance, any cease-and-desist demands) and copies of the replies from the Australian newspaper to ACARA.
Please deal with this request in accordance with your
Administrative Access scheme if practicable, otherwise as an
application under the Freedom of Information Act.
Yours faithfully,
Mark R. Diamond
Dear Mr Matheson,
Many thanks for your email. Please pass on my thanks to Mr Randall for the decision and for the documents you sent me.
Yours faithfully,
Mark R. Diamond
Mark R. Diamond left an annotation ()
The documents are interesting primarily for what they do not contain, rather than what they do ... by which I most definitely do not mean to imply that something has been hidden in the process of answering my FOI request!
The letter dated 17 May 2012 from Professor Barry McGaw, Chair of the ACARA Board, to Mr Clive Mathieson, Editor of the newspaper "The Australian", makes specific reference to the possible breach by The Australian of the terms of use of the My School website (see, http://www.myschool.edu.au/ContactUs/Ter... ).
The next letter from Professor McGaw to Mr Mathieson, undated but clearly later than 5 June 2012, refers to the useful meeting between staff of ACARA and staff of The Australian but makes no reference to the terms of use of the My School website. In addition, it is clear that The Australian has continued to publish and use material downloaded by the My School website, a fact also acknowledged at paragraph 35 of Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707 (http://www.austlii.edu.au/au/cases/cth/A...).
There seems little doubt that that The Australian did breach the terms of use, although I acknowledge that there might be a long-bow argument that the use by The Australian of MySchool data on its own website (see, for example, http://www.theaustralian.com.au/national...) was non-commercial. So what was the result of the meeting, aside from a détente? Most likely, the interaction between the ACARA representatives and The Australian, which presumably involved the in-house counsel that Mr Mathieson mentions in his email of 24 May 2013, persuaded the ACARA representatives that either (a) attempting to enforce the Terms of Use against The Australian would be expensive in terms of time or money, or (b) the terms were unenforceable against The Australian, perhaps because of the implications of the following cases:
Lange v Australian Broadcasting Corporation [1997] HCA 25 (http://www.austlii.edu.au/au/cases/cth/H...)
Theophanous v Herald & Weekly Times [1994] HCA 46 (http://www.austlii.edu.au/au/cases/cth/H...).
Yet small distributors of My School material do appear to have been persuaded to stop operations, as suggested by paragraph 204 of Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority [2014] AATA 707 (http://www.austlii.edu.au/au/cases/cth/A...).