Australian Society of Archivists
1999 Conference
Experiences in FOI and Tertiary Education
Tim Robinson
Manager, University Archives
University of Sydney
1. Introduction
This paper is based on my experiences as an archivist with
responsibilities for the implementation of freedom of information
legislation in two tertiary education institutions in NSW, Sydney CAE
and, more particularly, the University of Sydney. The opinions
expressed are personal and do not necessarily reflect the views of my
employer.
NSW universities and colleges of advanced education were not subject
to the former NSW Archives Act of 1960. Until the passage of
the State
Records Act in 1999, there was very little legislation that
directly impacted upon the keeping of records in NSW universities.
Public universities in NSW, although primarily funded by the
Commonwealth, operate under state legislation. They are, therefore a
part of the state public sector.
The University of Sydney Act 1989
was typical of the legislation restructuring higher education in the
wake of the Dawkins reforms of higher education in the late 1980s. It
required the University of Sydney to keep a few specified records,
mostly related to the roll of graduates for elections of members of
the governing Senate. Various other pieces of legislation related to
finance and auditing, annual reports and EEO legislation are
responsible for the creation of particular records, or types of
records, to provide evidence of compliance with the acts. Measures
such as the Ombudsman Act and the
Independent Commission Against Corruption Act
promoted some accountability in particular areas of administration,
but nothing required general adherence to proper standards of
recordkeeping throughout universities.
The NSW Freedom of Information Act 1989
was introduced by the Greiner Government. Unlike the Archives Act
1960, it applied to a much wider part of the NSW public sector,
including the universities(1).
The FOI Act was expected to have wider benefits for public
administration in addition to increasing accountability by providing a
right of access to records. The need to be able to locate relevant
documents in defined time periods (initially 28 days, subsequently
reduced to 21 days - providing third party consultation was not
needed) was hoped to promote good records management practices in the
public sector. In my experience the legislative deadline has provided
some support for records managers in arguing for appropriate
resources. However, the lack of public external review of FOI
decisions in NSW, until the recent establishment of the Administrative
Decisions Tribunal, has constrained improvements in public sector
recordkeeping. I expect this will now change markedly.
2. Background
At both the University of Sydney and Sydney CAE the establishment of
an archives was strongly connected with a desire to ensure the
preservation of documentary heritage. That is not to say that the
administrative value of archives was unrecognised, or that successive
University Archivists did not actively pursue the administrative value
of their work. Despite the reality of archival work, the general
perception of the Archives in the University has not reflected a wide
understanding of its nature and functions.
The absence of legislation backing the need to introduce and
maintain good records management has been reflected in general lack of
recognition of the matter's importance. In NSW in the late 1980s FOI
had the advantages of being both new legislation, and not being well
understood by most people. To an archivist it did not seem
particularly daunting, although most organisations did not make the
link between archival work and FOI. At Sydney CAE I found little
resistance to the prospect of the work sitting in the archives
portfolio. Many of the skills required for FOI and archival work are
similar, such as an understanding of the organisation’s
recordkeeping and an ability to deal with often large quantities of
records quickly. FOI work is, in reality, merely a particularly
complex set of access rules.
My experience with FOI, then, commenced at Sydney CAE where I was
College Archivist. Having had a personal interest the area of access
to records, I had kept the College informed of the likely impact of
the new legislation. When the Act was passed, in 1989, I became the
College's FOI officer and undertook the training course. Sydney CAE
ceased to exist in December 1989 and I was transferred to the
University of Sydney. My FOI responsibilities at Sydney commenced with
the departure of the University’s first FOI Coordinator in 1993.
The University of Sydney, along with other tertiary institutions had
anticipated the introduction of the legislation and been monitoring
its passage. While FOI activity was expected in relation to particular
areas of the University’s operations, a great impact overall was
not expected, or experienced. Prior to the passing of the FOI Act the
University's Senate had resolved to allow access by staff(2)
to their files. A similar practice developed later, in the light of
the introduction of the FOI Act, regarding access to students’
files, examination marks and scripts(3).
Such access did not necessarily extend to disciplinary matters, but in
general terms staff and students would have a right to see what was
held on “their file” without recourse to a formal
application under the Act.
In June 1989, following the passing of the Act, the University of
Sydney adopted a policy on FOI, which is still current. It states:
Item: 89/120 NSW Freedom of Information Act
Senate resolved to adopt the following recommendations of the Academic
Board concerning the NSW Freedom of Information Act:
- that the Senate express its support for the intent of the
Act and endorse the concept of Freedom of Information as
University policy;
- that, for purposes of the Act, the Senate resolve that the
University comprise any officer of the University and any part of
the University that exists or operates by virtue of or subject to
the authority of the Senate;
- that the Senate resolve that, for purposes of the Act, a
document is the University's if it is a document to which the
University has an immediate right of access, if it is a document
that is in the possession, or under the control, of a person in
that person's capacity as an officer of the University, or if it
is a document created by an officer of the University in the
normal course of that person's duties for the purposes of the
University or for the purposes of the person as an officer of the
University;
- that the Senate resolve that as far as is practicable, the
University look to means of making information available that will
obviate the need for formal applications to be made in accordance
with the Act;
- that the Senate ask the appropriate officers of the
University to maintain regular consultation with their
counterparts in the other Universities in NSW with a view to
achieving some consistency of approach in the implementation of
the Act;
- that the Senate ask the Registrar to prepare a proposal
for the further development of the University's FOI policy for
consideration at the next meeting of the Senate in conjunction
with any report from the Academic Board.
The position of FOI Coordinator was established to ensure that the
implementation of the policy was carried out by a number of officers
in a coordinated fashion within the University. In practice, instead
of the various officers dealing with FOI matters, the Coordinator has
tended to be the sole person responsible for processing applications,
but has not been the actual decision maker. My predecessor was an
Assistant Registrar (a quite senior administrative position) in the
University's secretariat. He reported to the University Registrar, who
had been delegated as the initial decision-maker by the
Vice-Chancellor. The FOI Coordinator at the University did, and still
does, prepare draft determinations for the consideration of the
Registrar(4).
The first FOI Coordinator had no records training and was not
involved in records management in the University, except as a user of
the systems. He did, however, have a wide and detailed knowledge of
the workings of the University. Both useful attributes of an effective
FOI practitioner.
3. NSW Freedom of Information Act
3.1. Operation of the Act
Section 5 sets out the objects of the Act:
5 Objects
(1) The objects of this Act are to extend, as far as possible,
the rights of the public:
(a) to obtain access to information held by the
Government, and
(b) to ensure that records held by the Government concerning the
personal affairs of members of the public are not incomplete,
incorrect, out of date or misleading(5)
In some respects the name of the Act is a misnomer. What it actually
provides is a mechanism to apply for access to documents held by the
government. Agencies are not required to provide “information”
in response to an application, but to identify what documents may be
relevant to the request. Documents falling with the scope of an
application are then assessed in the light of the discretionary
exemptions contained in schedule 1 of the Act.
Negotiating with applicants is a common feature of FOI work. It is
often much like a reference interview in an archives, except that the
applicant is often very suspicious of the questioner. The FOI
practitioner has the task of translating a request for information
into a search for documents. The degree of difficulty varies, just as
in archives reference work. The difference is that an FOI applicant is
unlikely to accept being told particular records do not exist.
Until 1991 there was a NSW Government FOI Unit which provided advice
to practitioners and the public. Its disbanding two years after the
introduction of the Act has meant that ensuring consistency in FOI
matters across the NSW public sector has been very difficult. In 1997
the NSW Ombudsman recommended its re-establishment.(6)
FOI officers have subsequently benefited greatly from a voluntary FOI
Practitioners Network run under the auspices of the Institute of
Public Administration with the tireless efforts of Philip Youngman of
the NSW Roads and Traffic Authority. Advice has also been available,
in some circumstances, from the Office of the NSW Ombudsman, but that
has been limited due to the role of that office in external review.
As with other FOI acts, the NSW legislation sets out the form in
which an application must be made and what must be included in a
determination produced in response to an application. As mentioned
above, possible exemptions are included in Schedule 1 of the Act. A
determination produced in response to an application must identify any
documents held to be exempt, identify the relevant exemption and then
explain why the decision-maker considers the exemption applies. The
reasons for claiming an exemption will include reference to relevant
precedents in case law.
Should an applicant be "aggrieved" by a determination, on
either access to records or for amendment, the next step is known as
internal review. An internal review is a reconsideration of the
application by another, more senior, officer in the agency. An
applicant still aggrieved at the agency's response at internal review
may take the matter to external review. At present in NSW external
review is undertaken either by the NSW Ombudsman or a new body titled
the Administrative Decisions Tribunal (ADT), which includes FOI
determination within the range of decisions it can review. Prior to
the introduction of the ADT, the NSW District Court could undertake
external review. Very few matters were taken to the District Court
because of the cost and formality of the process.
Review by the Office of the Ombudsman has not been an ideal
mechanism for review of FOI decisions. The volume of applications for
external review has been beyond the capabilities of the office to deal
with expeditiously. Delays from six moths to a year are not uncommon.
The Ombudsman’s Office generally conducts an informal
investigation of a matter in order to determine if a formal
investigation is necessary. This informal investigation requires the
agency to forward all relevant documents (application files,
determinations, legal opinions as well as all documents covered by the
application) to an investigation officer. After consideration of the
documents, the officer may attempt mediation or may write to the
agency stating what the outcome of a formal investigation would be
likely to be. An informal recommendation is generally made at this
point. The agency usually accepts the informal recommendation and the
matter is closed.
The difficulty from the point of view of practitioners is that the
whole matter is never reported publicly. The guidance offered by
published precedents is invaluable and the lack of them in the NSW
jurisdiction is keenly felt. The salutary nature of public scrutiny of
FOI decisions is also lost. To overcome the lack of precedents in NSW
the Ombudsman has produced FOI Policies and Guidelines which
sets out the position of the NSW Ombudsman in regard to the operation
of the Act in general and application of the exemptions in schedule 1
in particular. A consideration of the likely impact of the ADT is
below.
3.2 Publication requirements
The Act also requires that agencies publish a Summary of
Affairs each six months. This lists the agency’s policies
and arrangements for public access to its documents. Each 12 months a
Statement of Affairs must be produced which outlines the
structure and function of each agency and the ways in which the public
can participate in the agency's decision making. The Statement
is often incorporated into an agency’s annual report. Both
documents are extremely useful from an archival point of view,
recording as they do significant changes in the agency over time.
It has been my experience that until the requirement to list
policies was introduced, there was no consolidated source for such
information in the University. Policies were to be found in many
widely known publications, but also embedded in minutes and executive
decisions which were not easily accessible. In 1994 I put the
University’s Summary of Affairs on the Web in html
format. Some parts of the University had also commenced placing
material, including policies and procedures, on the Web server.
Hyperlinks were established from the policy list in the Summary
to those documents. Over time, more and more material became available
electronically and the policy listing in the Summary was
used a the basis for a policy database. This, in turn, has formed the
nucleus of the Corporate Information Database of the University’s
Intranet, USYDnet.(7)
Similarly, the organisational charts produced for the Statement
of Affairs had not been regularly brought together in a
consistent style and format. Similar information could be found in the
University’s Annual Report, but it was not as easily
accessible, or necessarily produced in chart form. Such charts have
also been useful for the Archives in documenting administrative change
within the University. Both the Summary and Statement
continue to be published on the Web, although for the last few years
they have been in Adobe PDF format(8).
The publication requirements of the Act have had an impact on
recordkeeping at the University. This is not to say that such things
as a policy database would not have been created as the technology to
do so became more widespread. However, having been responsible for
such matters prior to the development of the Intranet I have been
better positioned to participate in the recent developments than I
would have been solely as an archivist.
4. The NSW Administrative Decisions Tribunal
The introduction in 1998 of the NSW Administrative Decisions
Tribunal (ADT) has meant that many administrative decision will be
reviewed in public. The Tribunal’s decisions will be widely
available, including on the WWW(9). The
General Division of the Tribunal includes FOI in its jurisdiction,
taking over the role of the NSW District Court for external reviews of
FOI determinations. Over time, a significant and useful body of
precedent will be build up to assist those making and processing FOI
applications(10).
The creation of the ADT may have some unexpected consequences on
recordkeeping in the NSW public sector. The first President of the
Tribunal, His Honour Judge Kevin O'Connor, has decided to hear all FOI
matters himself. His Honour spoke on his views of the role and
functions of the ADT to a meeting of FOI practitioners in Sydney on 27
May 1999. Judge O'Connor addressed matters related to the operation of
the tribunal that were of concern to him. Paramount amongst these was
the issue of knowing if an agency had made an adequate search for
documents when responding to an FOI application. His Honour was aware
of the limitations of the resources of the Tribunal in such matters.
He stressed the point that the ADT did not have investigative officers
to assist it in its duties, as does the NSW Ombudsman.
It is the role of the ADT to "stand in the shoes of the
administrator" when reviewing an FOI application. That is, it has
the power to assemble all relevant documents from an agency and assess
them in the light of the Act. Clearly it is possible that an agency
may not have carried out an adequate search to identify all relevant
documents in response to a request. Even determining what an adequate
search may be could be a difficult matter. At the meeting of FOI
practitioners it was stated that, on occasions, the NSW Ombudsman has
required a senior officer of an agency to swear an affidavit to the
effect that every effort had been made to locate relevant documents
and that all particular documents do not exist. It seems that such the
requirement for such statements have a marked effect on recordkeeping
practices.
The issue of documents not existing can be a difficult one in FOI
applications. To issue a notice under section
28(1)(b) that a document sought by an applicant is not one held
by an agency is not a decision able to be reviewed, as technically it
is not a determination under the Act. To overcome the possibility of
the intentions of the Act being subverted, a mechanism is necessary to
ensure that an agency’s recordkeeping has been appropriate. The
way the ADT will deal with questions about the adequacy of an agency's
search for relevant documents will be to refer the matter to the NSW
Ombudsman for investigation as a case of possible maladministration.
It is understood that in the first six months of the ADT's existence
Judge O'Connor has already done this once. Clearly, an agency with
good recordkeeping, including properly documented policies and
procedures will be in a better position to face external scrutiny than
one that does not.
The views of Judge O’Connor, and his intention that the
question of alleged inadequate searches be fully investigated, are not
yet widely known. It is my expectation that no CEO of a public sector
agency will wish to the subject of investigation of their agency’s
recordkeeping. It is an important matter for NSW public sector records
professionals to take up with their employers. With the introduction
of the NSW State
Records Act and the standards issued by the State Records
Authority pursuant to section 2 of that act, no agency can pretend
ignorance of the level of recordkeeping expected of them. The
standards used as a benchmark by the Ombudsman in any investigation
will be those set by the State Records Act.
5. Specific examples
Having considered some general matter related to the NSW Freedom
of Information Act it will be informative to consider some more
specific instances of the operation of the Act. The following
applications are not necessarily based on matters that have occurred
at the University of Sydney, some are hypothetical or loosely based on
real applications.
5.1 Students
As universities make many decisions concerning a large number of
students it is not surprising that students are regular users of FOI.
It has been my experience that the majority of student applicants are
postgraduates. This may well be explained by the fact that PG students
are older and with more experience of life. They are more inclined to
require an explanation for a decision which affects them.
Undergraduate students are more likely to make FOI applications if
they are involved in some form of dispute or disciplinary matter and
when they have a student organisation providing advice or assistance.
Whether dealing with an undergraduate or postgraduate student, the
first approach is always to see if the matter can be resolved outside
the formal FOI process. Given the University of Sydney's long standing
practices regarding student access to their file, this is often
possible. On some occasions members of the academic staff have been
unaware of the University’s policies or of the implications of
the FOI Act. Once the situation has been explained, an initial
reluctance to deal with a student’s complaint often changes. I
should note that in recent years there appears to have been a wider
understanding of the Act.
Undergraduate students, as noted above, often resort to FOI
applications in some disciplinary matters. The University is well
aware of the rules of natural justice, as well as the FOI Act, but
needs to conduct some initial stages of investigation confidentially.
Occasionally the application of clause 9 of schedule 1 (often referred
to as the internal working documents exemption) of the Act is
appropriate. However, the NSW Ombudsman's FOI Polices and
Guidelines makes it plain that this exemption is usually only
accepted as valid until such time a decision on a particular issue is
reached(11).
To be a candidate for a postgraduate degree requires a considerable
investment of time and, increasingly, money. If a student comes to the
end of a degree by thesis only to find the work failed they are
understandably concerned. In the majority of cases the situation is
resolved by revision and resubmitting the thesis. Examiners’
comments, and/or the identity of the examiners, are now not generally
withheld from students. However, this has not always been the case,
and a culture has existed in some institutions that held that the name
of and examiner should not be revealed to the student. In some cases
even the actual comments on the thesis were not automatically
released.
In an unusual application, I understand that a student applied for
admission to a particular doctoral program. As he did not have the
appropriate prerequisites it was agreed that if he completed two
subjects from a Masters program at an agreed level he would be
admitted as a candidate for the higher degree. The student did not
pass the subjects at the required level and so was denied admission.
Being the holder of a number of degrees, the student claimed the
agreement had been unnecessary and, further, that he was being
discriminated against on the basis of the subject area of his intended
research. To support this claim an FOI application was made for the
qualifications of all students admitted to the doctoral program for
the previous five years. The size of the application was such that the
institution had considered refusing the request, but in keeping with
the Act consulted with the applicant to make the application
manageable. It was also pointed out to the applicant that, as personal
information was being sought about a large number third parties, the
Act required that they be consulted. The purpose of the consultation
was to determine if they held the information about their
qualifications to be exempt under clause 6 of schedule 1 of the FOI
Act. Clause 6 concerns the unreasonable disclosure of a person’s
personal affairs. This consultation would add time, and complexity, to
the processing of the application. It was also pointed out to the
applicant that it was likely that the university in question would, as
a matter of principle, hold the information on the other students
exempt even if they did not register an objection to release. In the
end the university found that all the students consulted objected to
the release of their personal information. A table indicating the
types of degrees held by those admitted to the course, and the state
or country in which the issuing university was located, was released.
This went some way to providing the information the applicant sought,
but without identifying any individual.
Further complexity may arise in applications for documents involving
third parties. In such circumstances, as noted above, the Act requires
consultation with those parties. Should an agency determine to release
documents contrary to the wishes of a person consulted, that third
party has right of review and appeal over the decision. No documents
may be released until all possible reviews have been concluded or the
time for them to commence has past.
5.2 Staff
To employ a large number of highly intelligent people, generally
very skilled in arguing a position, is to invite FOI applications.
Applications by staff of universities mostly relate to appointment and
promotion matters. Given the highly competitive nature of academic
life, and the way reputations of institutions are jealously guarded
and maintained through rigorous selection processes, unsuccessful
applicants are often suspicious of the basis for their rejection.
Institutions have responded to this concern over the years through
changes to selection policies and practices, ensuring more
transparency and accountability.
The difficult question of referees' reports still remains in some
quarters. The arguments for and release of such documents are much the
same as for examiners' reports on higher degree theses. External
review bodies have tended to indicate that such evaluative reports
should not be held to be exempt. However, the culture change required
in some institutions is still a force to be reckoned with.
Reviews of faculties, schools or departments often generate
uncertainty, and applications. The climate within the department being
reviewed, and the conduct of the review itself contribute to whether
or not FOI applications will be made. In my experience the applicant’s
worst fears are never borne out by the documents that are released.
5.3 Members of the public
Of course the Act does not solely apply to staff and students of
universities. Anyone with an interest in any aspect of a university
may seek access to documents. The vast majority of what a university
does is already public knowledge, actively promoted an institution
anxious to gain market share. Statutory publications, such as those
required by the Freedom of Information Act, also indicate
policy records and the structure and function of the institution.
However, large institutions, by their nature, will be involved in
matters that will not have universal approval.
At the time FOI legislation was being anticipated, those
universities using animals in research and teaching anticipated that
the Act would be used extensively by animal rights groups. This has
not proven to be the case. I have only dealt with one, relatively
minor, matter and I am not aware of any others in NSW. The legislation
governing the use of animals and the regulation of ethical conduct in
research in universities has gone a long way to ensure the
representation of interest groups in decision making bodies within
universities. Inspection regimes for animal houses are rigorous and
detailed records are kept. It seems that FOI applications have not
been necessary to ensure accountability in this area.
The other, as yet unfulfilled, expectation for use of FOI was by the
news media. I know of few applications to universities by journalists
and have only dealt with one myself in six years. The reasons for this
probably relate to the tight deadlines which operate in news and
current affairs. An FOI application will take at least 21 days before
any decision regarding what will, or will not, be released is made.
Any particularly sensitive material that falls within a legitimate
exemption is unlikely to be released, so additional time is added
through internal review. Most journalists have seemed to consider that
external review is simply not worth pursuing. The story will have long
since gone cold at the end of six or more months awaiting the outcome
of external review. My observations have been that where a university
has been involved in something controversial and newsworthy
journalists seem to have alternative means of obtaining access to
information.
Modern universities are complex organisations. It is quite common
for companies to be wholly or partly owned by a university. In regard
to recordkeeping and FOI some interesting issues have arisen. The
decision as to whether or not a part of a university is subject to the
FOI Act may require a legal opinion. Interestingly, the scope of the
NSW Freedom of Information Act and the new State
Records Act of 1998 do not seem to be the same in this regard. A
company owned by a university may fall outside the FOI Act, but its
records could be subject to management in accordance with the new
records legislation. I am aware of instances where a member of the
public has sought access to documents in the belief that they were
university records, only to find that they fell outside the bounds of
the FOI Act. It is my expectation that this situation will continue
and expand as universities diversify their funding base and structure
themselves in new, more market responsive, ways. I do not believe that
these changes are done with the intention of thwarting FOI or
accountability, if for no other reason but that there have not been
enough applications to warrant such a reaction. The cause is simply
that when the NSW FOI Act was drafted the new structures were not
envisaged and so the legislation did not encompass them.
Conclusion
Since the introduction of the Act in 1989 there has been a
significant growth in the number of applications. This growth in FOI
applications has coincided with the new demands of the NSW State
Records Act and the consequent new demands upon universities.
Unfortunately, the new demands are being made at a time of increased
financial stringency in the tertiary education sector. As the
institutions restructure and reposition themselves in the new and
rapidly changing environment, the prospect a new set of external
demands is not necessarily met with pleasure.
From a purely personal point of view, FOI has been a useful
mechanism for bringing recordkeeping matters to the attention of
senior managers. It has provided immediate access to officers who
would otherwise have given little thought to any aspect of
recordkeeping. Unfortunately, at the very time that the Freedom
of Information Act is no longer needed to make recordkeeping an
important issue, due to the State Records Act, the work load
from FOI has not assisted an effective response to the new
legislation. The problem is compounded by budgetary constraints in the
tertiary education sector, which are not conducive to the
establishment of new positions to assist in the response to the new
demands.
Endnotes
(1) See section 7 of the NSW Freedom of
Information Act 1989.
(2) University of Sydney Senate Minutes,
6 February 1984.
(3) University of Sydney Academic Board Minutes,
17 July 1989
(4) This has recently changed with the appointment
of Ms Judith Russell as Assistant Manager, University Archives. The
duty statement for this position includes FOI responsibilities. Two
other staff, the Director of the Secretariat and Corporate Information
Unit (which the University Archives forms a part) and a member of the
central records office have also undertaken basic FOI training.
(5) It is interesting to note that the right to
have records amended if they are incorrect, out of date or misleading
has been very little used. See: NSW Ombudsman, Implementing the
FOI Act A snap-shot (Sydney 1997) p.39.
(6) Implementing the FOI Act A snap-shot (Sydney
1997) p. 40.
(7) http://intranet.usyd.edu.au/
(8) http://www.usyd.edu.au/foi/
(9)
http://www.lawlink.nsw.gov.au/caselaw/caselaw.nsf/pages/adt
(10) The importance of such precedents in the
operation of the Act may be seen in the recent disclosure to the NSW
Parliament by the Premier of the salary of the Commissioner of Police.
According to the Sydney Morning
Herald of 28 June the disclosure to Parliament came
following a number of FOI applications for the information, and a
scheduled hearing before the ADT. While there are precedents regarding
the disclosure of the salaries of public officials in other
jurisdictions, there are none in NSW at present.
(11) NSW Ombudsman FOI Policies and
Guidelines (Sydney 1997) pages 74-5. |
