Summary
The Minister of Education and the Department of Education were asked to release marked School Certificate Examination scripts. All the requests were refused; sections 52 (3), 9 (2)(b) and 27 (1) were relied on.
In early 1984, 134 students asked the Department and the Minister of Education for their scripts back from their 1983 exams under the Official Information Act. The Department and the Minister said no, so 12 students (or their representatives) complained to the Ombudsman between February and March 1984. Their main reasons were to understand where they had gone wrong, to do better next time if necessary, and to understand the marking methods.
The Ombudsman considered the reasons given by the Department and Minister of Education, which were that it wasn't in the public interest; that they had promised the markers their marks would be in confidence, and that School Certificate was an "award". The Department and the Minister also pointed out that if these scripts were released, it would be inundated with perhaps tens of thousands of requests for scripts. They kept over 300,000 marked scripts in three separate locations, and it would be a large amount of work to release all of these.
In light of these considerations, the Ombudsman recommended that the scripts be returned to the 134 students under the Official Information Act and Ombudsman Act.
The Ombudsman's opinion (in short)
...In my opinion, s. 52 (3)(b) applies only to provision of other enactments which themselves prohibit, restrict or regulate access to information, and the Education Act 1964 does not contain such a provision.
I formed the view that the information requested was personal information and that requests for it could not be refused under s. 9 (2)(b). In respect of s. 27 (1) (c), I thought it doubtful that School Certificate was an "award" or "other benefit" under the provision.
...I formed the opinion that the requestors had a legal right to the return of their scripts. However, I was left in some doubt about whether the marks and comments might have been properly withheld.
Recommendation
I recommended pursuant to s. 35 (2) of the Official Information Act and s. 22 (3) of the Ombudsman Act 1975 that the marked 1983 School Certification Examination scripts be returned to all the requestors who had made such requests to the Department and the Minister of Education.
On 15 August 1984, the Department announced that marked examination scripts would be returned to the 134 candidates who had sought them.
Note: This case note is particularly of interest because as a result of this case, the Department and the Minister of Education changed their processes so that all marked examination scripts were returned to students as a matter of course. The full case note can be found in PDF format and is taken from the 5th Compendium of Case Notes.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
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