The Victorian Supreme Court has upheld a student's claim,
under the Freedom of Information Act, for access to
examinations papers and marking guides.
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
Section 34(4)(c) provides,
'A document is an exempt
document if ... it is an examination paper, a paper submitted by a
student in the course of an examination, an examiner's report
or similar document and the use or uses for which the
document was prepared have not been completed'
The critical issue for determination was whether 'the
use or uses for which [each] document was prepared have not been
The crux of the evidence presented by the University was as
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
The appeal considered whether the Tribunal erred in failing to
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).
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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