Masterly argument blocks release of school value add

The NSW Department of Education rejected an application under the Government Information (Public Access) Act for access by the Sydney Morning Herald to information on the value added by the state's comprehensive schools to their students' performance between year 10 and year 12. In an editorial (second at this link) the Herald said refusal of access to "this sophisticated and meaningful data" is simply ridiculous, particularly as  the Department released the same information about selective schools one month ago. The editorial points out that the Department's decision is inconsistent with the federal government's push for greater transparency, that it means that no data which shows any differences between schools could be released, and that it denies parents access to the most meaningful information available on school performance.

All this is to no avail if the Department is correct in claiming the information is covered by section 18A of the Education Act 1990, and it waved a Crown Solicitor's opinion at the Herald to make the point. Section 18A in its current form came out of an Alice in Wonderland debate in Parliament that led to measures ( subsections (4) and (5)) that the Government decried but voted for, that impose a fine on NSW newspapers utilising publicly available information to publish comparative performance information.

Schedule 1 of the GIPA act lists section 18A of the Education Act as one of the prohibition on disclosure provisions in 26 acts that are taken (section 11) as establishing a conclusive presumption of an overriding public interest against disclosure. Schedule 1 clause 1 states the overriding presumption applies where disclosure is prohibited by those provisions and "whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence." This suggests that in dealing with a GIPA application an agency must refuse access to information that properly falls within any of these prohibitions.There appears to be no discretion to release available to be exercised by the GIPA decision maker even though under the original acts information can be released in certain circumstances.

On the basis of the Herald reports I'm not convinced the release of the added value index would involve a publication prohibited by section 18A, so it will be interesting to see what might come from any challenge. In any event a National Agreement would clear this up if governments were really serious about transparency and the school system. But why NSW should need Commonwealth agreement before releasing information about NSW schools is another matter.

Section 18A states:

18A   Publication of school results

(1)  In this section:

relevant national agreement means an agreement between the State and the Commonwealth that gives effect to a national protocol or arrangement for the provision and publication of school results.

school results means the following results (whether they are the results of individuals or of schools or any other results):

(a)  results of national basic skills testing (including testing under section 18),

(b)  results of School Certificate and Higher School Certificate examinations and related assessments,

(c)  results of annual or other periodic assessments of the academic performance of students contained in reports to parents on student achievement.

      The regulations may determine whether particular results are or are not results referred to in paragraphs (a)–(c).

(2)  School results may, in accordance with a relevant national agreement, be provided by the State to the Commonwealth or to an authority established by the Commonwealth.

(3)  School results must not be publicly revealed in a way that ranks or otherwise compares the results of particular schools, except as authorised by or under a relevant national agreement.

(4)  A person must not, in a newspaper or other document that is publicly available in this State:

(a)  publish any ranking or other comparison of particular schools according to school results, except with the permission of the principals of the schools involved, or

(b)  identify a school as being in a percentile of less than 90 per cent in relation to school results, except with the permission of the principal of the school.

Maximum penalty: 50 penalty units in the case of an individual and 500 penalty units in any other case.

(5)  Nothing in subsection (4) prohibits:

(a)  anything authorised to be done by or under a relevant national agreement, or

(b)  the publication of the ranking of the schools in the top 10 per cent in relation to the results of Higher School Certificate examinations and related assessments so long as the information used to determine that ranking is information as to the results of students that may be publicly revealed under subsection (6) (c).

(6)  School results must not be publicly revealed if the results of an identified student are revealed, except as follows:

(a)  to the student or to the student’s parents, or to anyone with the student’s or parent’s consent,

(b)  to the principal of a school (including a school in another State or Territory) at which the student is enrolling, is enrolled or was previously enrolled,

(c)  in the case of results of School Certificate or Higher School Certificate examinations and related assessments—by or with the approval of the Board, by way of the publication of the results of students who the Board considers have achieved outstanding results.

(7)  The functions of the State under this section may be exercised by the Director-General or, if authorised by a relevant national agreement, by a State educational authority that arranges the testing, examinations or assessments concerned.

(8)  This section has effect despite any other Act or law or the decision of any tribunal.