Impact of new FOI legislation on obtaining raw marks? (1 Viewer)

ajdlinux

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Hi everyone,

Has anyone looked at whether the Government Information (Public Access) Act 2009 will have any impact on whether we can get raw marks through FOI?

I haven't had a chance to read the legislation myself yet, but I'm hoping that it'll be a bit more of a 'Right to Information', like they've renamed it up in Queensland, which could have some different provisions regarding public interest disclosure and so on. Also the new Office of the Information Commissioner sounds like a good idea.

I note that the DET and AVCC have certain explicit exemptions from some provisions of the Act when it comes to tertiary entrance ranking and assessment, but I haven't seen anything about BOS/OBOS. Could some of the more lawyerly types here have a look and see if we've got a chance at applying for raw marks in 2010?
 

youngminii

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You should probably wait for Lazarus to answer but in my opinion:

When you're requesting raw marks, you have to request through the Board of Studies. They (usually) reject it because the FOI Act doesn't apply if you're going to give someone the raw marks (ie. this site) which can be used to estimate the band cutoffs.
Anyway, it's going through the Board of Studies. I'm pretty sure that if you took it further and faced the tribunal (or something along those lines, I forget), you could eventually win and get your raw marks back.. It'd just cost a lot of money.
So even if a new Act did impact the FOI, the Board of Studies would probably continue to reject appeals until someone (or some people) took it further.
 

ajdlinux

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I don't see anywhere in the FOI Act which prejudices an application explicitly on the grounds of the possibility of it being published; indeed, that's one of the very reasons for having an FOI Act. I guess though that they'd claim the release would prejudice the operations of the agency since they know that inevitably you'd publish them.

I am reading the new legislation now, and it's very good. From what I can see, there are only two grounds on which OBOS could deny access, those being 'reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency' and 'prejudice the effective exercise by an agency of the agency’s functions'. The Act explicitly states an exhaustive list of 'considerations against disclosure', and they are the only way an access application can be denied. It also makes it very clear that in the absence of one of those considerations, there is a right to access the information, and that right is enforceable, like the present legislation.

My intention is to file an application for all my raw marks the day the new legislation comes into force, applying for all the fee waivers I can get (it's personal information, and I'm on Centrelink benefits), and I'll happily take them to the Information Commissioner and the ADT if necessary. I'm not exactly sure how it works under the present legislation, but the new laws put the burden of proof on the agency involved to persuade the Tribunal that they shouldn't order a release. I'm not legally-trained, but it seems this legislation might make it somewhat more difficult for OBOS to withhold our raw marks for much longer.
 

ajdlinux

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Actually, it gets even better; it's in fact a crime for them to refuse an access application if they know it contravenes the new Act. If their legal advice is that they have to release it, and they don't, then hopefully the threat of an $11,000 fine on every manager and employee involved will change their mind...
 

youngminii

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From what I can see, there are only two grounds on which OBOS could deny access, those being 'reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency'
I believe this was interpreted by Lazarus as the thing I said above. I mean I'd be happy if I was wrong :haha:

Also, that's a HUGE fine.. 100 penalty units per employee?
 

ajdlinux

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I gathered that they used a similar argument last time, but I'm hoping that the Commissioner will set down some guidelines that will exclude that, or at least provide a highly efficient avenue to appeal the decision and actually have it overturned. The only precedent I can find online about raw marks at appeal was an ADT case which didn't even discuss merits, but rather the appellant's refusal to pay $30 per person involved. I'm sure there's some ADT or SCNSW precedent, even perhaps an unpublished one, which would be good for us. Hopefully the Commissioner will tell OBOS that effective functioning of an agency isn't much of an argument for withholding raw marks.

And yes, 100 penalty units per officer who makes the decision, person who directs that officer in the making of that decision, or person who exercises undue influence in the making of that decision. :D
 

youngminii

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Ridiculous fine :jedi:

Well, if you look at it objectively it's not hard to see that the public knowledge of band cutoffs can be considered detrimental to the effective functioning of the BoS. I guess you'd have to prove that it's not to get your raw marks.
 

ajdlinux

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I wonder if I'd be more successful making a general non-itemised request for all documents and records the Office possesses with regards to any and all examinations, enrolments, etc., and hope they conveniently forget to remove the raw marks?

And on the other hand, I think it'd be quite possible to argue before the OIC/ADT/etc. that band cutoffs are not a sufficient reason to prevent the release of the relevant documents.
 

ajdlinux

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I believe this was interpreted by Lazarus as the thing I said above. I mean I'd be happy if I was wrong :haha:
Okay, I've done more research into it, and it seems that the Board used the exception in the FOI Act that exempts documents which could 'reasonably be expected ... to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or to prejudice the attainment of the objects of any test, examination or audit conducted by an agency'. (Clause 16, Schedule 1, FOI Act 1989)

In the new Act, that exception has been dropped, apparently over the http://www.ombo.nsw.gov.au/foi review submissions/Office of the Board of Studies.pdfprotests of the Board of Studies, who wanted even stronger limitations prohibiting all claims of FOI over HSC exams. Even with the old laws still in place, the Ombudsman's Office's official view that is published in the 2007 FOI Manual states that they believe exam scripts and raw marks are not covered by the exception, and that we CAN claim them under existing FOI laws. (PDF pages 265-267) I would assume that the Ombudsman has had their legal team analyse that.

I'm writing my application, and if they want to fight me, I'll see them in Tribunal!

[PS: can some mod please move this to the right forum?]
 

Lazarus

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The new Government Information (Public Access) Act 2009 (NSW) will make it impossible to request access to any data relating to the HSC, including raw and scaled marks.

This is because of the extremely broad language that has been used in the exceptions for the DET and the universities. Other agencies (including the Board) can rely on these exceptions if the information requested relates to the functions of the DET or the universities. While a strong argument can be made in favour of reading the exceptions narrowly, the success of such an argument would likely depend on the temperament of the tribunal member hearing it.

I wrote a submission to the Government addressing this issue and was told that the matter would be referred to the Joint Parliamentary Committee as well as the universities for further consideration. This likely won't occur until after the Act commences in early 2010.

Having said that, there have been some very significant developments in the past week relating to the Ombudsman's review of the Board's handling of FOI applications.

Interestingly, on Friday, the Board also launched a new section of its website entitled "How your HSC works" which provides explanations of the moderation and alignment procedures. It's good that we're now able to refer students to an official source for this information.

I hope to be in a position to provide more information on these developments soon.
 

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A very formal and well devised submission, I hope it does well! :)

You certainly know your stuff Lazarus! :p
 

ajdlinux

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The new Government Information (Public Access) Act 2009 (NSW) will make it impossible to request access to any data relating to the HSC, including raw and scaled marks.

This is because of the extremely broad language that has been used in the exceptions for the DET and the universities. Other agencies (including the Board) can rely on these exceptions if the information requested relates to the functions of the DET or the universities. While a strong argument can be made in favour of reading the exceptions narrowly, the success of such an argument would likely depend on the temperament of the tribunal member hearing it.
They are, as you note in your submission, essentially identical to the existing Sch 2 exemptions. It's annoying not having any specific precedent on the HSC cases, the only thing I've found is the Parsonage appeal regarding payment of fees. Has anyone actually had the real issues considered at the ADT yet?

I wrote a submission to the Government addressing this issue and was told that the matter would be referred to the Joint Parliamentary Committee as well as the universities for further consideration. This likely won't occur until after the Act commences in early 2010.
Well, it's good that it will at least be considered.

Having said that, there have been some very significant developments in the past week relating to the Ombudsman's review of the Board's handling of FOI applications.
I hadn't heard about that, although the ombudsman has already given his opinion which is recorded in the 2007 FOI Manual. I haven't been able to find out much more about that and the reasoning behind it. Hopefully the report will come back in our favour.

Interestingly, on Friday, the Board also launched a new section of its website entitled "How your HSC works" which provides explanations of the moderation and alignment procedures. It's good that we're now able to refer students to an official source for this information.
Definitely, although I think parts of the site could be written much more clearly and concisely.

I hope to be in a position to provide more information on these developments soon.
Thanks for your work!

I'm still interested in why neither the Ombudsman nor DPC said anything about why OBOS's request for their own exemption in similar terms to the DET/unis exemption was rejected. I would suspect this may have something to do with the Ombudsman's apparent pro-disclosure views when it comes to the existing exemptions.

I have emailed the Board requesting that the FOI co-ordinator give me their opinion on this matter as well as any internal policy documents or memoranda that they rely on to justify refusal determinations under the current legislation. I'm not expecting a quick response, but if I get something I'll post it.
 
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Lazarus

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They are, as you note in your submission, essentially identical to the existing Sch 2 exemptions. It's annoying not having any specific precedent on the HSC cases, the only thing I've found is the Parsonage appeal regarding payment of fees. Has anyone actually had the real issues considered at the ADT yet?
Unfortunately, no.

But see:

Raethel v Director General, Department of Education and Training [1999] NSWADT 108

Raethel v Director General, Department of Education and Training [2000] NSWADT 14
 

ajdlinux

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Skim read. It basically looks positive, as far as getting one's own raw HSC marks back goes. Not so good if you're looking for scaling data or anything like that. The critical issue is the Board using the DET/uni exemption in Sch 2, and Raethal only raises the issue of DET using the exemption, in which case the law is very clear.

Overcoming the Sch 1 exemptions shouldn't be too hard, we have more than enough arguments we could use. (The Board could come up with something from Shaping their Future and similar reports to justify why it's confidential though, so there'd be a lot more reading to do.)

The only way I can see around the Sch 2 exemptions is arguing that raw marks are too distantly linked to the information held by unis/DET to justify using the exemption. The raw marks are used for calculating aligned marks for the certificate too, and for 2/3 of HSC students, that's more important than whatever happens with the ATAR, as they don't end up going to uni. On the same grounds as the Board could argue, you could say the logical conclusion is that one's own name, student number and enrolment details are exempt as they have to be passed to UAC for admin purposes.

Also I wonder about whether UAC is in fact covered by the Sch 2 exemption. I know that scaling of raw marks is supposedly carried out by the Technical Committee on Scaling of the NSWVCC, and as far as I know the NSWVCC is an unincorporated body. So I would assume that UAC in fact acts as an agent of the NSWVCC, in turn acting as an agent for the universities, therefore bringing it under Sch 2. However, if it could be shown otherwise, that would be helpful as then you might be able to show another link in the information chain that could make it distant enough not to be covered by Sch 2.

I'm not a lawyer, so these arguments probably have quite a few holes though...
 

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