Australian Society of Archivists
1999 Conference
FOI and Privacy From a School Archives Perspective
Sarah O'Neill
Late last year, Lisa Hunt who was working at Methodist Ladies
College in Victoria, posted a question on the Aus-Archivists Listserv.
It read…
"Dear Listservers - Can anyone tell me the extent to
which privacy and FOI legislation apply to private institutions such
as schools and hospitals? I have read that these types of legislation
have some degree of universal application but nobody has been able to
provide us with details that will assist us to formulate formal policy
guidelines for our Archives. Our current position is to allow access
to staff and student records only if they are more than 30 years old"(1)
The only person to attempt to answer Lisa's question was Anne Picot,
from the NSW Roads and Traffic Authority Archives. In short, Anne's
response was that FOI didn't apply to private organisations. Anne
explained the situation in more detail.
"The FOI legislation, state and Commonwealth, applies
only to government agencies so that persons dealing with private
organisations such as schools or charitable foundations have no
statutory right of access to documents of those organisations.
Whatever information or documents your school chooses to release to
the public or to persons dealing with the school in a business or
education capacity is a matter for your policy determining structures,
based presumably on the original articles of establishment"(2)
So, if Freedom Of Information (FOI) legislation does not apply to
independent schools, why am I presenting this paper? Well, because
there are some real issues school archivists need to address regarding
their management and access policies. The key to Anne’s answer of
Lisa’s question isn’t so much that FOI doesn’t apply to
independent schools, but that schools should be using their ‘in-house’
policies in determining and controlling access to records. This
presents a problem to school archivists because the majority of us don’t
have such policies in place. Most of us control our archives with a “common
sense” approach to management. This might not be very
professional but you have to remember that by and large, school
archivists are the sole operators in their archives. They are the
person responsible for the handling of acquisitions, appraisal,
records transfer, disposal, arrangement, description, retrieval,
budgets, displays, outreach programs and waste management – i.e.
vacuuming the office and throwing the garbage out. Some of us are
expected to do all this and more, in only seven contact hours a week.
It doesn’t really leave much time for policy writing does it. I
digress…
In May this year, the NSW School Archives SIG held a Professional
Development Day at The Hills Grammar School in Kenthurst, Sydney. The
topics for discussion were FOI, School Archives and Student Records.
39 school archivists attended – 4 of who made the trip to Sydney
from country regions in NSW, and 5 others from interstate. Going by
the attendance alone, it was obvious the chosen topics were of a great
interest and appeal to our colleagues.
Margaret Wyatt, Records Manager for the Parramatta Diocese Catholic
Education Office in Sydney presented the first paper of the day on the
implications of FOI legislation and the Privacy Act on school
archives.
Margaret reminded the group that although FOI doesn’t affect us
directly, school archivists still have a duty of care to our clients
to ensure the information we keep is accurate and accessible if
required. She informed the group that even though documents held by
independent schools are not available to the public through any act or
law, the public could still gain access through the legal system or
through individual school policies. Anyone can take an organisation to
court to demand access to information. Not only about yourself, but
also about other people. If access is denied then reasons need to be
given. If a school was trying to prevent someone’s attempts to
access records, then a well written school policy clearly stating the
school’s stance on access to documents held in the archives and
subsequent information held therein, would provide sufficient reasons
for denial of access.
The Federal
Privacy
Act, which protects information held on individuals in
government agencies from being used inappropriately, does apply in
part to independent schools. It has bearing in relation to the
collection, storage, use, disposal and security of tax file number
information. This is of little concern to school archivists, for we
rarely handle this type of information. But the Australian Privacy
Commissioner has developed guidelines for private organisations
regarding the collection, storage, use, disposal and general handling
of personal information.(3)
For example, independent schools collect and store personal
information on ex students for a variety of reasons. The majority of
established schools have ex student unions. These unions keep current
address and contact number databases on ex students for mailing and
reunion dinner purposes. Although the ex student provides this
information, it should not be for general access or use. Some schools
also keep “cradle to grave” files on ex students. Published
and non published information is collected on the students tracking
their career and relationship high points and pitfalls. These details
can then be transferred into a thumb nail sketch to be used in an ex
student register. The question has been raised recently about whether
ex student registers are a violation of privacy. People are divided on
the issue. The point is that the Australian Privacy Commissioner’s
guidelines about handling this type of information do provide school’s
with a precedent to follow.
In her conclusion Margaret encouraged everyone to develop and
implement policies that offered the school protection from potentially
harmful litigation.
So what type of school records are school archivists trying to
prevent the unauthorised access and use of, and why isn’t a
common sense approach to denying or providing access adequate in
operating a school archives?
In the discussion that followed Margaret’s paper, the assembled
group identified those records which where not only crucial to the
schools history, but contained information of a sensitive nature and
therefore made the school more vulnerable if that information was used
inappropriately. Amongst those records identified were school council
minutes, enrolment registers, staff files, student academic records,
class rolls and student files.
Student files or student records are not only a school archives
greatest asset but also its greatest liability. I believe they are the
records most at risk if FOI was applicable to independent schools.
Student files can contain highly sensitive, subjective and defamatory
information and comments. A basic student file is a compilation of
information accrued during a students time at the school. The file
contains not only original application and acceptance forms, which
include the parents signatures, but may also contain family financial
details, especially if the student has applied for a scholarship or
bursary. The file may have guidance counsellor information if the
student has behavioural or psychiatric problems; an interview sheet
were often detailed observations are made about both parents and
students during their interview, and correspondence between staff
members regarding the student.
Because most schools do not have a records management or student
records policy in place, there is often no ‘best practice
guidelines’ for staff members to follow. To avoid potential and
successful litigation by ex students and families, staff who create
the documents in student files need to be wary of comments that could
be construed as defamatory or slanderous. In the student files that I
see, it is often on the initial student interview sheet, conducted
before a place is offered, that first impressions of the student and
families are recorded, quite possibly with dire future consequences. A
slight offhand remark recorded permanently in a student file could end
up costing a school thousands of dollars.
Student files are among the most important resource of information
in a school archives, and are kept for several reasons. First to
provide proof that a certain level of duty of care was taken towards
the students while attending the school. Second to protect the school
from unreasonable litigation from ex-students or parents regarding
this duty of care. And third, to provide an ongoing register of
ex-students, who all become potential donors later in life.
Student files, along with academic reports, are the most likely to
be subpoenaed by the courts. For example student academic reports are
used as evidence in motor vehicle insurance claims by both the defence
and the prosecution, to either prove or discredit an ex-students claim
that their life and lifestyle has been irreparably altered since being
involved in an accident. They use the information in their file to
prove that they were intelligent and smart and enthusiastically
involved at school, but due to the accident, they have not been able
to participate so actively in life.
Or recently I had the experience of trying to locate the records of
an ex-student who was suing the school for educational malpractice.
The student claimed that he had not been taught properly which
reflected in his final year grades, thus preventing him from pursuing
his chosen career. My directive from my HM was to recover as much
information as I could on this student. I found nothing. Not one piece
of paper or single register entry to confirm he was an ex-student. We
could provide no information to defend our position against these
allegations. After much worry and turning the archives inside out, the
student’s solicitor informed us that the “ex-student”
was in fact a pathological liar and that he had never attended the
school. Regardless of this fortunate result, the whole episode proved
how inadequate and vulnerable the school’s records management
policies were. If we had no proof that the student actually came to
the school, how could we deny the allegations?
In 1987 I moved to New York with my family. In September of that
year I enrolled in Year 11, Junior year, at Mamaroneck High School in
Westchester County. Of all the things I remember about my first day,
it was a comment made to me by guidance counsellor, Mrs Marks, that
troubled me the most. She told me, very positively and politely, that
I would never see my student file.
While thinking about the topic of this paper, I recalled this
conversation. At the time it disturbed me to think that I would never
be allowed access to this file. Looking back now after working in
school archives for nearly five years and processing hundreds of
student files a year, I am not too sure what I thought I might
actually have wanted to see in my file, or thought about what
information was kept. All that mattered was that I was denied from
ever seeing its contents.
In the day to day running of a school archives, the student records
in old schools are generally used by the archivist for genealogical
research enquires. Rarely does anybody actually come in and demand to
see “their file” or someone elses. But if FOI did apply to
independent schools, I can think of two examples that illustrate how
FOI might work.
The first is an example of how important it is to have a school
archives access policy even if it is of the common sense variety.
Recently a gentleman of Sydney society approached his former
independent high school, regarding the contents of his student file.
Apparently while he attended the school he had been rebellious and had
a number of behavioural problems. However, since leaving school, his
behaviour had improved with maturity and now he is an upstanding
member of society. Worried however that the press would have access to
information about his “colourful past” and ruin his career,
or run a smear campaign, he contacted the school regarding its access
policies. He wanted confirmation that no information would be leaked,
or that no one could have access to his file. Both the HM and the
Archivist confirmed that the press would have to get past them before
any information was leaked outside the school.
If FOI included independent schools, would this information be
available to anybody?
The second example is about a mother grieving the loss of her
deceased son who had recently left school. The mother, wanting to see
his student records, approached the independent school he had attended
and asked to see the file. After leaving school his life had been
troubled until he ended it. The mother wanted to know if the file
could contain information that would answer some of the questions her
son’s death had raised. Was he troubled at school? What did the
teachers have to say? Did they know he had problems? And if so, what
were they? She wanted to know of anything that might have given her
clues about his condition. The HM approved on compassionate grounds
for the mother to see her son’s file.
Under FOI could access to this file have been denied?
There has been much talk recently of extending privacy and FOI
legislation to the private sector. If this happens independent schools
will be included. The implications and ramifications of this are too
big for this paper, but in general it would mean that independent
schools would be held more accountable for their records keeping
practices. At the moment there is no standardised school archives
management principles, and each archives reflect the idiosyncrasies of
its archivist. Under FOI independent schools might have to handle more
requests for information that they already do. But whether permission
for access to information is granted will be a matter for our
headmasters, school councils and governments to sort out.
Footnotes
(1) Lisa Hunt, Methodist Ladies College,
Aus-Archivists
Listserve, 20 November 1998
(2) Anne Picot, Monash School of Information
Management and Systems,
Aus-Archivists
Listserv, 20 November 1998
(3) Web site address -
http://www.privacy.gov.au/ |
