Application of Section 40(b) FOI Act

Relevant considerations

1. Is there an identifiable 'test, examination or audit' conducted by the agency?

The words 'test, examination or audit' should be interpreted according to their ordinary and natural meaning.¹

The Information Commissioner has previously considered that:

2. Is there a reasonable expectation that disclosing the matter could prejudice the attainment of the objects of the test, examination or audit?

a) Prejudice

The agency must specifically identify the possible prejudice to the attainment of the objects of the test, examination or audit.

b) Attainment of the objects of the test, examination or audit

The following examples assist in considering the application of section 40(b):

• disclosing multiple choice question sheets and a student's answer sheet to a multiple choice exam could reasonably be expected to prejudice the attainment of the objects of the exam. Where disclosure would allow students to rote learn the answers, there would be prejudice to the effectiveness of determining the competency of students⁵
• disclosing model responses to interview questions for a public service recruitment and selection process could reasonably be expected to prejudice the attainment of the objective the public service selection processes to find the candidate with the best knowledge and experience. A candidate who is aware of model responses would have an unfair advantage over other candidates.⁶

c) Is the expectation reasonably based?

See 'Could reasonably be expected to' Annotation.

3. Would disclosure, on balance, be in the public interest?

In the application of section 40(b), the following public interest factors favouring disclosure have been recognised:

• enhancing government accountability⁷
• an agency's ability to conduct an exam in a way that properly utilises the agency's resources and properly tests students⁸
• the appointment of the most meritorious candidate to the public service and the effective and equitable functioning of a Department's recruitment and selection process.⁹

¹ (Unpublished OIC Preliminary View) referring to Re Murphy and Queensland Treasury & Ors (1995) 2 QAR 744 at paragraphs 96-107.
² (Unpublished OIC Preliminary View).
³ (Unpublished OIC Preliminary View).
⁴ Gresham and Queensland Principal Club (Unreported, Queensland Information Commissioner, 13 August 2001) at paragraph 35; (Unpublished OIC Preliminary View); (Unpublished OIC Preliminary View).
⁵ (Unpublished OIC Preliminary View).
⁶ (Unpublished OIC Preliminary View).
⁷ Gresham and Queensland Principal Club (Unreported, Queensland Information Commissioner, 13 August 2001) at paragraph 36.
⁸ (Unpublished OIC Preliminary View).
⁹ (Unpublished OIC Preliminary View).