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SchoolSMART: English goes to Ombudsman

Hon Bill English
National Party Education Spokesman

10 August 2006

SchoolSMART: English goes to Ombudsman

National’s Education spokesman, Bill English, has written to the Ombudsman complaining about Education Minister Steve Maharey’s refusal to make public information relating to the performance of schools.

“Mr Maharey has turned down a request made under the Official Information Act to access information on the SchoolSMART website on the grounds that it goes against the public interest.”

The SchoolSMART website, run by the Ministry of Education, collects and compares up to 20 indicators from schools, including NCEA results.

Mr English says he cannot think of anything more important to the public than the performance of schools.

“Making SchoolSMART publicly available is in the public interest as it promotes participation and accountability.

“Parents who know more about their child’s education are more likely to participate.

“Public availability of the website would be consistent with government policy, which states participation by families and communities as one of the three objectives for the education system.”

Mr English says he can see no reason why, under either the Official Information Act or the Privacy Act, this information cannot be released.

“I suspect that the Minister of Education has done a political deal with the teacher unions to keep this information secret and doesn’t want to disappoint them, even though he knows he has no legal grounds for refusal.”

ENDS

Attached: Letter to the Ombudsman – 5 pages

--


10 August 2006

John Belgrave
Ombudsman
PO Box 10-152
WELLINGTON

Dear Mr Belgrave


COMPLAINT ABOUT FAILURE TO PROVIDE INFORMATION

I am writing to you pursuant to section 28(5) of the Official Information Act to complain about the refusal of the Minister of Education to provide information under the Act.

On 16 May 2006 I requested information under section 12 of the Act. My request was framed as follows:

- All information on the “website known as SchoolSMART operated by the Ministry of Education or access to it”.

On 3 August 2006 I received a response back from the Minister declining my request based on section 9(2)(ba) of the Official Information Act 1982 and section 9(2)(a) of the Privacy Act 1993. I would like you to review the Minister’s decision on the basis that there is no good reason for withholding the release of the SchoolSMART website.

The following is intended to assist you in considering the Minister’s decision and outlining why his decision should be reviewed.

What is SchoolSMART?
SchoolSMART is a website operated by the Ministry of Education. The website presents a wide range of data collected and analysed by the Ministry to assess school performance.

The website is currently accessible by password to Ministry of Education, Education Review Office and school principals and anyone to whom the principal permits access. Most of the data collected for SchoolSMART is publicly available form other sources, and the Ministry have made SchoolSMART data available to me under the OIA.

Answers to parliamentary questions indicate the Ministry analyses data to a certain level for presentation on the website, and carries out more detailed analysis which is not presented on the website for its own purpose of assessing which of New Zealand’s 2500 schools are at risk.


Section 9(2)(ba) of the Official Information Act 1982.

Section 9(2)(ba) of the Official Information Act 1982 does not have application in the particular circumstances. Accordingly, under section 9(1) no good reason for withholding official information exists for the purposes of section 5.

Section 9(2)(ba) protects information from public release where there exists either an obligation of confidence or an enactment that requires the provision of information. Sub-paragraphs (i) and (ii) are concerned with protecting continuing supply of information or ensuring that there is no damage to the public interest.

There is no obligation of confidence between the Ministry of Education and schools to protect SchoolSMART. Answers to oral and written Parliamentary Questions indicate that the minister held a discussion with a number of education bodies (NZEI, PPTA Principals Federation, SPANZ, STA) when the project was initiated and it was agreed the analysis yet to be created should not be made public. However the Minister has confirmed there is no contractual or formal arrangement in place. At least one of the groups he cited as agreeing to withhold the analysis is actually seeking access and only one of the five groups has formally recorded a policy position.

In addition, most of the data available on SchoolSMART is provided to the Ministry by schools in the course of their normal activities and it is available through the Ministry website or on request from the Ministry. The Minister has also stated several times in the House that the website is open to parents who make an appointment with their school principal and view it “in the right context” where questions can be answered and misunderstandings cleared up.

These factors point to the conclusion that there is no obligation of confidence with respect to SchoolSMART data.

Nor is there any act of Parliament standing in the way of disclosure. The general thrust of legislation is to require schools to provide information, not prevent it. For instance, the Education Standards Act requires schools to set achievement goals and report against them publicly. The Education Act gives the Secretary wide powers to require information, with no limits on how that information can be used.

There is no risk to the continuing supply of information from schools. The requirements placed on schools to provide information have been in place for many years. Schools know that members of the public are able to access data they provide and there has been no breakdown in the supply of information from schools to the Ministry.

The Minister has cited damage to the public interest as a reason for refusing access to the website. Section 9(2)(ba) clearly places an onus on the Minister to show how releasing the website will cause damage to the public interest. The Minister’s response provides no indication as to how damage to the public interest will occur.

The Minister has to show that data which he is willing to release in paper format without analysis will damage the public interest if released in electronic format analysed by the Ministry. He must also show that the same analysis he says is available if a parent visits a school principal and asks will damage the public interest if the parent views it on their own personal computer at home.

Should you decide that section 9(2)(ba) does apply, then following section 9(1) there are still considerations which render it desirable, in the public interest, to make SchoolSMART publicly available. These considerations are discussed below under the heading Section 9(1) of the Official Information Act 1983.


Section 9(2)(a) of the Privacy Act 1993 (or the Official Information Act 1983).

Section 9(2)(a) of the Privacy Act 1993 does not have application in the particular circumstances. The application of section 9(2)(a) of the Official Information Act 1983 should be modified by section 17.

I am unable to establish what the connection is between releasing the SchoolSMART website and the ambit of section 9(2)(a) of the Privacy Act 1993. I’ll be happy to respond if you inquire into this connection.

The framing of the Minister’s response indicates to me that the correct citation is probably section 9(2)(a) of the Official Information Act 1983. If this is the case section 9(2)(a) of the Act should not be used to decline access to SchoolSMART in its entirety. As the Minister outlines in his response there is the possibility that some reports will include small numbers which could lead to individuals being identified. I respect that the privacy of individual’s must be maintained. However, it is not necessary to block access to SchoolSMART entirely in order to protect the privacy of a small number of individuals.

The Act itself provides a practical solution in the form of section 17. Provided that a clear threshold is established, for example where a report involves less than 5 individuals, then section 17 should be applied and identifying markers deleted where necessary. This will protect individuals’ right to privacy while also satisfying the public’s right to information about their schools.


Section 9(1) of the Official Information Act 1982.

Withholding information is outweighed by other considerations, which render it desirable, in the public interest, to make SchoolSMART publicly available.

Should you decide that sections 9(2)(ba) and 9(2)(a) apply; in accordance with section 9(1), there are still considerations which render it desirable, in the public interest, to make SchoolSMART publicly available. It is in the public interest that parents have the ability to make informed decisions about their children’s schooling. Informed decisions require information. SchoolSMART is a source of objective and authoritative analysis that complements other sources such as Education Review Office reports. Publication of these reports was also controversial but now it is widely accepted. Parents can access these reports through the Ministry website.

In the absence of objective and authoritative analysis parents have to make decisions about schools on the basis of decile rating and hearsay. All educationalists agree that this is an inappropriate way to gauge a school’s effectiveness. The SchoolSMART data is not conclusive but it adds information to ERO reports and NCEA results in the case of secondary schools

Less reliable information is likely to fill the vacuum because Government no longer has the ability to control all information about schools. The website www.ratemyteacher.com allows students to rate every individual teacher in New Zealand and comment on their teaching style. 21,000 teachers have been rated in two months since the website opened. This site is available to everyone at no cost. SchoolSMART, as a Ministry developed and run website, is a reliable source of information and would be the first port of call for parents making schooling decisions

While it is true that a parent could obtain information from a number of sources through official information requests this is a long process and unnecessary when the Ministry already compiles this information on SchoolSMART

Finally, making SchoolSMART publicly available is in the public interest as it promotes participation and accountability. Parents who know more about their child’s education are more likely to participate. Public availability of the website would be consistent with government policy which states participation by families and communities as one of the three objectives for the education system.

Some education lobby groups do not support the release of this information and this may have influenced the Minister’s decision. However, the Act should not enable groups to agree to keep information from the public. The Minister’s refusal does not meet any of the grounds laid out in the Act and SchoolSMART should be made available, notwithstanding the controversial nature of such a decision.

In fact, the Minister of Education may indeed be relying on the Ombudsman to make the final decision because he feels he cannot breach political undertakings even if his legal grounds are shaky.

For the above reasons, it is my view that it is desirable, in the public interest, to make SchoolSMART publicly available.

Please contact me on [...] if you wish to discuss this complaint.


Yours sincerely


Bill English
MP for Clutha-Southland

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