The Victorian Supreme Court has upheld a student's claim, under the Freedom of Information Act, for access to examinations papers and marking guides.
Case Facts
Mr McKean, a student at the University of Melbourne, sought access under the Freedom of Information Act 1982 (Vic) to the marking guides for two subjects as well as his examination paper for one of those subjects. The University refused on the basis that the marking guides were exempt under sections 30(1) ('Internal working documents') and 34(3)(c) ('Documents relating to trade secrets') of the Act and the examination paper was exempt under section 34(4)(c) of the Act.
VCAT (Tribunal) found that neither the marking guides nor the
examination papers were exempt and the University was ordered to
release the documents to Mr McKean. The University appealed the
Tribunal's findings in relation to section 34(4)(c) of the Act
only.
Section 34(4)(c) provides,
The critical issue for determination was whether 'the
use or uses for which [each] document was prepared have not been
completed'.
The crux of the evidence presented by the University was as
follows:
- for the two subjects in question, there is a limited amount of information that can be examined, so questions are 'recycled' from year to year
- in future years, examination papers for those subjects may contain substantially similar questions to those contained in the papers the subject of the access request or may even reproduce parts of those papers and
- disclosure of marking guides would allow students to rote learn answers without needing to understand the subject.
Importantly, it was made clear that while the past examination questions and answers were available for reuse, it was not certain that any part(s) of the three documents would be reused.
Issues
The appeal considered whether the Tribunal erred in failing to consider:
- the definition of 'document', in that each part of the documents in question were themselves documents because each was a copy, reproduction or duplicate or a part of a copy, reproduction or duplicate of other documents
- whether the discrete uses that parts of each document were prepared for had been completed and
- the argument that each document consisted of discrete parts which were each exempt from disclosure under section 34(4)(c).
Held
Kyrou J upheld the Tribunal's decision finding that, on the evidence, it was open for the Tribunal to find that the uses for which the three documents were prepared were completed at the end of the examination assessment period when the results were published. The University did not discharge the onus of making an exemption under section 34(4)(c) of the Act. It did not satisfy the Tribunal, nor Kyrou J, that there was a further use to be made of the documents and, moreover, that the further use was a use 'for which the document was prepared'.
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