FOI 2526 001 Statement of Reasons Attachment C FINAL.pdf

OFFICIAL

OFFICIAL
ATTACHMENT C: STATEMENT OF REASONS – FOI/2526/001

1.  This attachment, together with the Decision Notice and Attachment B – Schedule of Documents, provides
the reasons I have decided not to disclose certain material to you in response to your request for documents
under the Freedom of Information Act 1982 (FOI Act).
2.  Attachment B – Schedule of Documents provides a table with the description of document, the decision with
respect to the document and a reference to the relevant provision that has been relied upon to exempt the
document from release. My considerations under the relevant provisions column are discussed below.
Information stored in electronic form (section 17)
3.  Section 17 of the FOI Act requires an agency to produce a written document of information that is stored
electronically and not in a discrete written form, if it does not appear from the request that the applicant
wishes to be provided with a computer tape or disk on which the information is recorded. This obligation
arises only if:
a.  The agency could produce a written document containing the information by using ‘a computer or
other equipment that is ordinarily available’ to the agency for retrieving or collating stored
information (s17(1)(c)((i)), or making a transcript from a sound recording; and
b.  Producing the written document would not substantially and unreasonably divert the resources of
the agency from its other operations (section 17(2)).
4.  You have sought access to past year 3, year 5 and year 7 exam papers for the National Assessment Program –
Literacy and Numeracy (NAPLAN) from 2017 to 2025, inclusive. For background purposes, in July 2013 all
Australian Education Minsters agreed to guiding principles for national online assessment. The principles
provide strategic direction to ACARA for the online delivery of NAPLAN. The transition from paper-based tests
to online commenced in 2018 and NAPLAN is now delivered online. The online tests are tailored, or adaptive,
meaning each test presents questions (test items) at varying levels of difficulty depending on the response of
the child. This method of tailored testing allows a wide range of student abilities to be evaluated and
measures student achievement more accurately. A student’s overall NAPLAN score is calculated based on
both the number and complexity of questions answered correctly.
5.  For the grades requested, being Years, 3, 5 and 7, over the specified timeframe, being the years 2018, 2019,
2021, 2022, 2023, 2024 & 2025 there are 92 online tests in total, including Writing, Reading, Conventions of
language and Numeracy tests. The 60 online tests for Reading, Conventions of language and Numeracy are
contained in the online assessment platform only and are not held in a paper or print format. Contained in
the 60 online tests, a total of 1,413 testlets and 17,202 test items have been identified as relevant. In order to
produce a document, or documents containing the tests, including testlets and test items, the following
activities would be required:
a.  Navigate to and through the relevant test, testlets and test items in the online assessment platform;
and
b.  Manually screen shot each of the 17,202 test items, and save each with the appropriate naming
convention to create a document.
OFFICIAL
1
ACARA| FREEDOM OF INFORMATION | STATEMENT OF REASONS

link to page 2 link to page 2 link to page 2

OFFICIAL
OFFICIAL

6.  The online assessment platform does not have the functionality to undertake this task in a bulk operation and
limited ACARA staff have access to the online assessment platform. Moreover, the online tests are not
designed to be translated to paper format meaning the only manner in which a document could be created is
through a repetitive manual process.
7.  In Collection Point Pty Ltd v Commissioner of Taxation1 the Full Federal Court held that the reference in
subsection 17(1)(c) of the FOI Act to a “computer or other equipment that is ordinarily available” means “a
functioning computer system including software, that can produce the requested document without the aid of
additional components which are not themselves ordinarily available…. … [T]he computer or other equipment
… must be capable of functioning independently to collate or retrieve stored information and to produce the
requested document.”2 The FOI Guidelines, as paragraph 3.213, explain this will be a question of fact in the
individual case, and may require consideration of an agency’s ordinary or usual conduct and operations.
8.  In this case, as outlined above, the online tests are not designed to be translated into paper format and
therefore the online assessment platform does not have the functionality to create or produce such
documents through the use of currently available software or hardware. Additional software or hardware
would be required to produce a document that is intelligible and such work would be considered beyond the
obligations under section 17(1) of the FOI Act. This was the position held in Collection Point3 where the
Federal Court held that as the Australian Taxation Office (ATO) would be required to produce a new computer
program to transfer the information from the database into a discrete written format, the ATO was not able
to satisfy the applicant’s request to produce a document through the use of a computer that was ordinarily
available to it. Therefore, the obligation under section 17(1) of the FOI Act did not arise. Similarly in this case,
I have found that the obligation to create a document does not arise as additional software or hardware
would need to be produced to transfer the tests, testlets and test items from the online assessment platform
into a discrete written format.
9.  Further, pursuant to section 17(2) of the FOI Act, to undertake this task manually would substantially and
unreasonably divert the agency from its other operations to do so. As outlined at paragraph [5] above, there
are 17,202 test items which would need to be manually reviewed, screen shot and saved to produce the
items in written format. Considering these matters, an estimate of time for processing this part of your
request was prepared. In this regard I have:
a.  Taken a conservative approach of attributing five minutes per testlet (1,413 testlets)
b.  Taken a conservative approach of attributing one minute per test item (17,202 test items)
c.  Taken a conservative approach of attributing 20 minutes per test (60 tests)
10. The above does not factor in any time to review the material for any relevant exemptions or prepare a
decision on access. The above is only to manually produce the test materials in a discrete written format from
the online assessment platform. Based on the above factors, I have determined it would be approximately
519 hours, which is equivalent to 74 days (based on a 7hr workday) to undertake this repetitive manual task.
11. Accordingly, I consider this portion of your request would also be an unreasonable and substantial diversion
of ACARA’s resources.

1 [2013] FCAFC 67
2 [2013] FCAFC 67 [43] –[44]
3 Above n1.
OFFICIAL
2
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

link to page 3 link to page 3 link to page 3

OFFICIAL
OFFICIAL

Operations of an agency – effectiveness of tests, examinations or audit methods or procedures (section 47E(a))
12. Section 47E(a) of the FOI Act conditionally exempts documents where disclosure would, or could reasonably
be expected to, prejudice the effectiveness of procedures or methods for the conduct of tests, examinations
or audits by an agency.
13. The FOI Guidelines provide at paragraph 6.93 that where the document relates to a procedure or method for
the conduct of tests, examinations or audits, both the following elements must be met:
•  an effect would reasonably be expected to follow, and
•  the expected effect would be, overall, prejudicial to the effectiveness of the procedure or method of
the audit, test or examination being conducted.
14. The administration of national assessments is identified as one of ACARA’s functions under section 6 of the
Australian Curriculum Assessment and Reporting Authority Act 2008 (Cth) (ACARA Act). The National
Assessment Program – Literacy and Numeracy are listed as a National Assessment Program at Items 1 and 2,
subsection 43(1) of the Australian Education Regulations 2023 (Cth) (the Regulations). Documents 1-104, as
identified at Attachment B, contain material used in the Years 3, 5 and 7 NAPLAN tests administered between
2017 and 2025 inclusive. The test items have been specifically developed for use in NAPLAN which evaluates
the sorts of skills that essential for every child to progress through school and life. NAPLAN is designed to
assess learning progress through the stages of a child’s learning and academic life with students in Years 3, 5,
7 and 9 sitting the test each year. NAPLAN is the only national assessment all Australian students have the
opportunity to undertake.
15. If the materials contained in the Documents were to be disclosed, it could reasonably be expected that
students may be permitted to pre-prepare responses which could compromise the integrity of the testing
process. If students are trained to answer NAPLAN test items in a particular way, this will be an inaccurate
reflection of a child’s actual learning progress. In Re Marko Ascic and Australian Federal Police4 (Re Marko)
the Administrative Appeals Tribunal (the Tribunal) commented:
“Should the questions to be asked and the answers to be given in pending examinations be generally
available to candidates in training, the resulting choice we consider, might reflect merely people of short
memory and little else.”5
16. The Tribunal further held Re Marko that:
“the giving of access to the documents sought could contribute…towards allowing prospective candidates
to be better able prepare for and gain advantage at examination, or towards allowing a whole course to
gain a false estimate for themselves as to their knowledge and abilities.”6
17. The case of Re Marko dealt with the potential professional technical competency of police candidates. The
position regarding non-disclosure of the documents in that case remain consistent in this case as disclosure
would prejudice the integrity of NAPLAN. Pre-prepared responses would not be a true or accurate reflection
of a student’s knowledge or abilities, rather a reflection of a student’s ‘short term memory’. Further, this
could arguably be viewed as fraudulent or deceptive conduct by those being tested, that is the students, it

4 [1986] AATA 108 (18 April 1986)
5 Ibid [19].
6 Ibid [20].
OFFICIAL
3
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

link to page 4 link to page 4 link to page 4 link to page 4 link to page 4

OFFICIAL
OFFICIAL

would not be a true or accurate reflection of their capabilities. This would lead to a false or misleading
NAPLAN score. In Crawley and Centrelink7 the Tribunal held:
“There is an evident sense in that, particularly given the likelihood that widespread release or publication
of the tests could lead to the prospect that the results obtained would not be accurate: that is, the result
would not be an accurate reflection of the subject’s honest answer to the questions posed. That would
frustrate the whole purpose of administering the test.”8
18. Similarly, it is, in my view, clear that the release of the material is likely to prejudice the effectiveness of
procedures or methods of the test, given its the methodology of the test itself which is how a student’s
overall NAPLAN score is determined. The reliability and effectiveness of the tests would be prejudiced if it
became generally available for scrutiny by persons who might be the subjects of the tests, or to the general
public, and by permitting pre-prepared responses which would compromise the integrity of the testing
process.9 Further, disclosure of the material could facilitate cheating, fraudulent or deceptive conduct of
those being tested which would also compromise the integrity of the testing process.
19. In Marty Ross and ACARA10 the former Acting Information Commissioner stated:
“A factor relevant to this IC Review is that disclosure could reasonably be expected to prejudice the
effectiveness of testing or auditing procedures. I am satisfied that this factor should be given substantial
weight in this case. In particular, for the reason that disclosure of the NAPLAN numeracy tests would
prejudice the effectiveness of NAPLAN online, especially in light of the recent agreements of the Education
Council. I also note ACARA’s obligation under s 7(1) of the ACARA Act to comply with a direction of the
Education Council, in this case, the implementation of NAPLAN Online.”11
20. I am satisfied that the Documents, as identified in the Schedule at Attachment B, contain material relating to
assessments, and examinations administered by ACARA, specifically relating to NAPLAN. Disclosure of the
information contained in the Documents would reveal the methodology and processes regularly used by
ACARA in relation to the effective and efficient conduct and assessment procedures of NAPLAN.
21. If the information contained in the Documents were disclosed it would, or could reasonably be expected to,
prejudice ACARA’s ability to effectively assess, review and audit the performance of NAPLAN, and to
determine whether young Australians are developing the literacy and numeracy skills critical for their learning
and progress. Further, disclosure would or could reasonably be expected to prejudice ACARA’s testing
method by permitting prepared responses, and facilitating cheating, fraudulent or deceptive conduct of those
being tested, which would compromise the integrity of the testing process.
22. Accordingly, I have formed the view that the material is conditionally exempt under section 47E(a) of the FOI
Act. As I have found that the relevant material is conditionally exempt, I am required to consider whether it
would be contrary to the public interest to grant access to the conditionally exempt material at this time.
Public interest

7 [2006] AATA 572 (30 June 2006).
8 Ibid [13].
9 Crawley and Centrelink [2006] AATA 572 (30 June 2006).
10 Australian Curriculum Assessment and Reporting Authority [2015] AICmr 75 (1 December 2015).
11 Ibid [21].
OFFICIAL
4
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

OFFICIAL
OFFICIAL

23. Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it must be disclosed ‘unless
(in the circumstances) access to the document at that time would, on balance, be contrary to the public
interest’.
24. Paragraph 6.238 of the FOI Guidelines explains:
To conclude that, on balance, disclosure of a document would be contrary to the public interest is to
conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of
withholding the information. The decision maker must analyse, in each case, where on balance the public
interest lies based on the particular facts of the matter at the time the decision is made.
25. In making my decision, I have considered the factors favouring access set out in section 11B(3) of the FOI Act.
I have not considered any of the irrelevant factors as set out in section 11B(4) of the FOI Act.
26. I have also had regard to the FOI Guidelines at paragraphs 6.231 and 6.233, which include a non-exhaustive
list of public interest factors favouring disclosure and public interest factors that weigh against disclosure.
27. My consideration of the public interest test regarding the application of section 47E(a) of the FOI Act follows:
Factors in favour of disclosure
28. Of the factors favouring disclosure, I consider the release of the conditionally exempt material would promote
the general public interest in accessing documents as expressed in sections 3 and 11 of the FOI Act.
Factors against disclosure
29. Of the factors against disclosure, I consider the release of the conditionally exempt material:
•  could reasonably be expected to prejudice the effectiveness of testing or auditing procedures,
specifically relating to NAPLAN;
•  could reasonably be expected to prejudice the conduct of assessments, reviews and audits by ACARA
by disclosing methodology and processes;
•  could reasonably be expected to prejudice the flow of information from schools, Test Administration
Authorities, education authorities required for ACARA to effectively manage and perform assessment
and review processes relate to NAPLAN in the future;
•  could reasonably be expected to compromise the integrity of the examination system and testing
process by permitting pre-prepared responses;
•  could reasonably be expected to allow plagiarism or circulation of questions or examination papers
that would compromise the integrity of examination system or and testing process;
•  could reasonably be expected to facilitate cheating, fraudulent or deceptive conduct by those being
tested which would compromise the integrity of the testing process;
•  would, or could reasonably be expected to, interfere with the continued cooperation of
Commonwealth – State governments in undertaking assessment, negotiations and policy decisions in
relation to NAPLAN; and
•  could reasonably be expected to allow scrutiny of past test questions for the pre-preparation of
expected/acceptable response, rather than honest or true responses which would frustrate the
purpose of administering test and examination.
30. After careful consideration of the relevant public interest factors, I consider the factors against disclosure to
be more persuasive than the public interest factors favouring disclosure. I am satisfied that the public interest
is to withhold the exempt material.
OFFICIAL
5
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

OFFICIAL
OFFICIAL

Operations of an agency – attainment of testing, examinations or auditing objectives (section 47E(b))
31. Section 47E(b) of the FOI Act conditionally exempts documents where disclosure would, or could reasonably
be expected to, prejudice the integrity of the attainment of the objects of the tests, examinations or audit
objectives of an agency.
32. The FOI Guidelines provide at paragraph 6.98 that where the document relates to the integrity of the
attainment of the objects of the test, examination or audits by an agency, both the following elements must
be met:
•  an effect would reasonably be expected to follow, and
•  the expected effect would be prejudicial to the attainment of the objects of the audit, test or
examination conducted or to be conducted.
33. Documents 1-221 and 223-352 inclusive, as identified in the Schedule at Attachment B, contain material used
in the Years 3, 5 and 7 NAPLAN test administered between 2017 and 2025 inclusive. The test items have been
specifically developed for use in NAPLAN which evaluates the sorts of skills that essential for every child to
progress through school and life. NAPLAN is designed to assess learning progress through the stages of a
child’s learning and academic life with students in Years 3, 5, 7 and 9 sitting the test each year. NAPLAN is the
only national assessment all Australian students have the opportunity to undertake.
34. A student’s overall NAPLAN is calculated based on both the number and complexity of questions answered
correctly. NAPLAN results are reported in various ways including national results, individual student reports
and school level reporting, via the MySchool website. ACARA works with the states and territories in relation
to the results produced from the NAPLAN tests administered across Australia, to understand how students
have progressed in the important areas of numeracy and literacy across the years of schooling.
35. In addition to ongoing assessments from teachers, NAPLAN:
a.  can provide teachers with information about a student’s educational progress;
b.  can be used to identify students who may require greater challenges or more support in the
classroom;
c.  may assist schools to identify areas of strengths and improvement in teaching programs;
d.  can assist schools to set literacy and numeracy goals; and
e.  can be used by school systems to review the effectiveness of programs and supported offered.
36. Outcomes from NAPLAN also provides schools, education authorities and the government with information
about how education programs are working and whether young Australians are achieving important
educational outcomes in literacy and numeracy. The new Better and Fairer Schools Agreement (BFSA), which
replaced the National School Reform Agreement, is a joint agreement between the Commonwealth, states
and territories to help create a better and fairer education system for all students. NAPLAN is used to
measure the effectiveness and track progress against the priority areas and improvements measures set out
in the BFSA.
37. The security and confidentiality of the test items is integral to the attainment of the objects of the NAPLAN
process for ACARA, and its stakeholders, and to maintain the reliability and integrity of the test. As outlined
above, test items are specifically designed for NAPLAN and are retained for use in future tests, both paper
and online. A vast and varied test item pool is particularly required due to the nature of tailored testing which
results in students seeing different questions based on how they perform in the test in real time. Further,
schools are subject to strict, no exception rules which prevent the sharing of the NAPLAN tests, and which
OFFICIAL
6
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

link to page 7 link to page 7 link to page 7 link to page 7 link to page 7 link to page 7 link to page 7

OFFICIAL
OFFICIAL

require all unused test material to be destroyed. This ensures the security and integrity of the tests, including
the test items, remain intact. ACARA’s position in this regard was upheld by Pilgrim in Marty Ross12 where he
asserted:
“The NAPLAN test questions are integral to ACARA’s operations, both when conducting the NAPLAN tests,
and for use in NAPLAN Online. While the test information may be available to select members of the
public, namely teachers, there are clear processes in place to protect the NAPLAN tests from being made
available to the general public.13
38. Disclosure of the material contained in the Documents would reasonably be expected to result in the
widespread circulation of questions that would lead to a breach of the integrity, honour and purpose of the
NAPLAN examination process. Similarly, this position was held by the Tribunal in Crawley and Centrelink14:
“… given the likelihood that widespread release or publication of the tests could lead to the prospect that
the results obtained would not be accurate: that is, the result would not be an accurate reflection of the
subject’s honest answer to the questions posed. That would frustrate the whole purpose of administering
the test.”15
39. The former Information Commissioner, Leo Hardiman, reiterated this position in Australian Federation of Air
Pilots16:
“disclosure of the documents at issue would allow prospective appointees to prepare to respond to specific
assessment criteria or questions. Prospective appointees would not then need to acquire a comprehensive
understanding of the relevant framework and responsibilities information. As a result, disclosure of the
documents at issue could reasonably be expected to make it easier for prospective appointees to pass
assessments without obtaining comprehensive understanding of information.”17
40. In Crawley, the Tribunal further commented that the “reliability of tests would be prejudiced if it became
generally available for scrutiny by persons who might be subject to the tests,”18 and subsequently held that
disclosure of the documents would prejudice both the effectiveness of testing, examination and auditing
methods and the attainment of test, examination and auditing objectives.
41. Similarly, in this case, I tend to agree with the former Information Commissioner and Tribunal in that release
of the material is likely to prejudice the fulfillment of the objects of the test. Disclosure of the material would
allow students to study past results, and potentially map test questions and pathways, thus allowing students
to prepare for expected responses rather than providing true answers on the day of the test. This would
compromise the integrity of the tests and its objective, which is to ascertain information about a child’s
educational progress and knowledge over the course of their academic life.
42. Importantly, students cannot fail NAPLAN as it is not that type of test and students are not expected to study
for NAPLAN (refer https://www.nap.edu.au/naplan/for-parents-carers). ACARA’s position is that the best
preparation is to engage with your child’s school’s numeracy and literacy instruction. Literacy and numeracy
are core to a well-rounded education and are essential life skills that students develop in every aspect of daily
life.

12 Above n10.
13 Ibid [15].
14 Above n9.
15 Ibid [13].
16 Civil Aviation and Safety Authority (Freedom of Information) [2022] AICmr 65 (14 October 2022).
17 Ibid [30].
18 Above n9, [14].
OFFICIAL
7
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

link to page 8 link to page 8

OFFICIAL
OFFICIAL

43. In addition to tracking the progress of children’s capabilities, NAPLAN allows schools to monitor and evaluate
its performance against these fundamental competences. The results also provide schools, states and
territories with information about how education approaches are working, areas to be prioritised for
improvement and those schools requiring support. The results can assist teachers by providing additional
information to support their professional judgment about student’s levels of literacy and numeracy. As
outlined above at paragraph [41], a consequence of disclosure of the material would allow students to study
past results, and potentially map test questions and pathways, thus allowing students to prepare for expected
responses rather than providing true answers on the day of the test. This would reasonably be likely to result
in a better outcome, thus providing a false or misleading NAPLAN score and compromising the test integrity.
This has further detrimental impacts on not only the student and the school, but also the sector and broader
jurisdiction.
44. Moreover, NAPLAN results inform more than a student’s individual progress. The results also inform
government policy and education programs, including the BFSA. If the material were to be released, resulting
in the consequences already addressed, it is reasonably likely that the NAPLAN results would be inaccurate
meaning false or misleading data would be provided to schools, education authorities and the government.
False or misleading data could prejudice resourcing for schools, support for students and teachers and impact
the effectiveness of education programs. For the purposes of the BFSA, this could reasonably be expected to
have a negative impact on priority areas and improvements measures set out in the BFSA by being incorrectly
reported which could reasonably be expected to impact fiscal funding for educational resourcing for all
jurisdictions, as well as future educational objectives, outcomes, targets and measures under other bilateral
or multi-jurisdictional agreements.
45. In addition, I am satisfied that the Documents, as identified in the Schedule at Attachment B, contain material
relating to the attainment of ACARA’s functions, as outlined under section 6 of the ACARA Act. Release of the
information contained in the Documents could reasonably be expected to compromise the efficacy, or
fulfillment of the objects of NAPLAN, as a method to assess students’ proficiency in literacy and numeracy
over time, individually, as part of their school community and against the national standards, as well as an
improvement measure in the BFSA. If the information contained in the Documents were disclosed it would, or
could reasonably be expected to, prejudice the integrity of the examination system, specifically NAPLAN. In
Marty Ross19 Pilgrim asserted and held the position that:
“On balance, ACARA maintaining its ability to carry out its functions as listed in the ACARA Act, and the
continued cooperation of the Commonwealth-State governments in undertaking assessment, negotiations
and policy decision so that NAPLAN online project can continue effectively, outweighs the public interest in
disclosing the numeracy tests.”20
46. Therefore, I am of the view that disclosure could reasonably be expected to compromise or interfere with the
continued cooperation of Commonwealth – State governments in undertaking assessment, negotiations and
policy decisions in relation to NAPLAN.
47. Accordingly, I have formed the view that the material is conditionally exempt under section 47E(b) of the FOI
Act. As I have found that the relevant material is conditionally exempt, I am required to consider whether it
would be contrary to the public interest to grant access to the conditionally exempt material at this time.
Public interest

19 Above n9.
20 Ibid [22].
OFFICIAL
8
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

link to page 9

OFFICIAL
OFFICIAL

48. Under the FOI Act, access to conditionally exempt documents must generally be given unless doing so would
be contrary to the public interest. In making my decision, I have considered the factors already mentioned in
this document.
49. My consideration of the public interest test regarding the application of section 47E(b) of the FOI Act follows:
Factors in favour of disclosure
50. Of the factors favouring disclosure, I consider the release of the conditionally exempt material would promote
the general public interest in accessing documents as expressed in sections 3 and 11 of the FOI Act.
Factors against disclosure
51. Of the factors against disclosure, I consider the release of the conditionally exempt material:
•  could reasonably be expected to prejudice the conduct of exams, tests and assessments administered
ACARA by allow for plagiarism or circulation of questions or past examination papers that would lead
to a breach of the integrity of the examination system;
•  could reasonably be expected to prejudice the flow of information from schools, Test Administration
Authorities, as required for ACARA to effectively administer NAPLAN in the future;
•  could reasonably be expected to prejudice the attainment of test and exam objectives of NAPLAN by
allowing scrutiny of past test questions for the pre-preparation of expected/acceptable responses,
rather than honest or true responses;
•  could reasonably be expected to facilitate cheating, fraudulent or deceptive conduct by those being
tested which would compromise the integrity of the testing process;
•  would, or could reasonably be expected to, interfere with the continued cooperation of
Commonwealth – State governments in undertaking assessment, negotiations and policy decisions in
relation to NAPLAN; and
•  could reasonably be expected to prejudice the attainment of the objectives of NAPLAN, which
informs broader education initiatives such as the National School Reform Agreement.
52. After careful consideration of all relevant public interest factors, I have decided that the factors against
disclosure outweigh those favouring disclosure. I find that greater weight should be given to the effect of
disclosure on the ability of ACARA to perform its functions, in particular, attaining the objectives of NAPLAN.
53. I am therefore of the view that disclosure of the documents would, on balance, be contrary to the public
interest.
Operations of an agency (section 47E(d))
54. Section 47E(d) of the FOI Act conditionally exempts documents where disclosure would, or could reasonably
be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
55. Under section 6 of the ACARA Act, ACARA is required to ‘develop and administer national assessments.’21 The
assessments that fall under NAPLAN are listed at Items 1 and 2, subsection 43(1) of the Regulations. The test
items have been specifically developed for use in NAPLAN which evaluates the sorts of skills that essential for
every child to progress through school and life. NAPLAN is designed to assess learning progress through the
stages of a child’s learning and academic life with students in Years 3, 5, 7 and 9 sitting the test each year and
is the only national assessment all Australian students have the opportunity to undertake.

21 Australian Curriculum Assessment and Reporting Act, subsection 6(b).
OFFICIAL
9
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

link to page 10 link to page 10 link to page 10 link to page 10 link to page 10 link to page 10

OFFICIAL
OFFICIAL

56. ACARA conducts this function with high levels of confidentiality over the information relevant to the NAPLAN
assessment process, including development of the test items and security of the tests. Test item developers
are required to sign confidentiality agreements. ACARA administers National Protocols for Test
Administration (the Protocols) which provides strict obligations for test administrators and teachers, including
the ‘post-test period’. The Protocols outline consequences for a substantial breach of the Protocols at clause
10.5 which includes disciplinary action. Further, schools are subject to strict, no exception rules regarding the
release or sharing of NAPLAN tests and required to return or destroy all unused test materials. Moreover, due
to the discretionary nature of test items, developers are required to sign confidentiality agreements.
57. Release of the material would compromise the integrity of ACARA’s current and future evaluation activities of
NAPLAN by revealing test items, which are used for ongoing testing research and in future tests. Test items
are crucial to ACARA’s functions, particularly the NAP which includes NAPLAN. If the material were to be
disclosed, ACARA would be required to remove the tests and test items from circulation and develop new
tests. This could and would reasonably likely have a direct impact on the immediate NAPLAN events which are
due to occur in March 2026. If ACARA were required to remove test items from circulation, this would be at a
substantial cost. In Re Marko22 the Tribunal held:
“that the release of the documents sought to the applicant could reasonably be expected to require the
Respondent to incur substantial expense by way of providing a number of alternative examinations with
the intention of changing the tests frequently, ad of course if the content of successive tests were revealed
under the FOI Act no doubt thought would have to be taken as to whether the subject matter of the tests
should be abandoned after each revelation.”23
58. The Tribunal concluded “While of the opinion that there is a public interest that such training procedures and
tests as we are considering should be as open and fair as possible, we are unable to conclude that there is any
gain likely to ensue”24 ultimately affirming the internal review decision to refuse access to the documents.
59. The same position was taken by Pilgrim in Marty Ross and ACARA25 where he affirmed ACARA’s decision not
to disclose previous NAPLAN Numeracy tests. In his decision, Pilgrim asserted “The NAPLAN tests are integral
to ACARA’s operations, both when conducting the tests, and for use in NAPLAN Online.”26 Pilgrim further
explained:
“On balance, ACARA maintaining its ability to carry out its functions as listed in the ACARA Act, and the
continued cooperation of the Commonwealth-State governments in undertaking assessment, negotiations
and policy decision so that NAPLAN online project can continue effectively, outweighs the public interest in
disclosing the numeracy tests.”27
60. Although, for the most part NAPLAN is now administered online, paper tests are still administered, and all the
test items remain in circulation. All NAPLAN test items, whether administered online or in paper format, are
candidates for reuse in future NAPLAN tests. If they were to be released, students could practice the items
(questions), and the test items would no longer perform as intended if it remained in circulation. Release of
the material in the Documents, as identified in the Schedule at Attachment A, could reasonably be expected
to have a substantial adverse effect on the proper and efficient conduct of its operations by jeopardising
ACARA’s ability to use the test items as part of NAPLAN paper and online test as well as ongoing research.

22 [1986] AATA 108 (18 April 1986)
23 Ibid [20].
24 Ibid [23].
25 Australian Curriculum Assessment and Reporting Authority [2015] AICmr 75 (1 December 2015).
26 Ibid [15].
27 Ibid [22].
OFFICIAL
10
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS

OFFICIAL
OFFICIAL

61. Preserving the integrity of NAPLAN is crucial to the proper and efficient delivery of ACARA’s statutory
functions under the ACARA Act with respect to the NAP. The disclosure of the Documents would have a
substantial adverse impact on ACARA’s operations by prejudicing the future administration of NAPLAN and its
ongoing integrity.
62. For the reasons above, I am satisfied that the release of the Documents, as identified in the Schedule at
Attachment B, would, or could reasonably be expected to, have a substantial adverse effect on the proper
and efficient conduct of the operations of ACARA by jeopardising the use of the tests as part of NAPLAN paper
and online test as well as ongoing research. Further disclosure would or could reasonably be expected to,
have a substantial adverse effect on the proper and efficient conduct of the operations of ACARA by causing
avoidable expenses to the increased and ongoing development of test items.
Public interest
63. Under the FOI Act, access to conditionally exempt documents must generally be given unless doing so would
be contrary to the public interest. In making my decision, I have considered the factors already mentioned in
this document.
64. My consideration of the public interest test regarding the application of section 47E(d) of the FOI Act follows:
Factors in favour of disclosure
65. Of the factors favouring disclosure, I consider the release of the conditionally exempt material would promote
the general public interest in accessing documents as expressed in sections 3 and 11 of the FOI Act, including
through enhanced scrutiny of the operations of a government agency.
Factors against disclosure
66. Of the factors against disclosure, I consider the release of the conditionally exempt material:
•  could reasonably be expected to prejudice the effectiveness of testing, examinations or auditing
procedures, specifically in relation to NAPLAN;
•  could reasonably be expected to prejudice the attainment of objectives of testing, examinations or audits
conducted by ACARA, specifically in relation to NAPLAN;
•  would, or could reasonably be expected to prejudice ACARA’s ability to carry out its functions under the
ACARA Act,
•  would, or could reasonably be expected to, interfere with the continued cooperation of Commonwealth –
State governments in undertaking assessment, negotiations and policy decisions in relation to NAPLAN;
•  would not contribute to a matter of public interest or debate, noting the Public Demonstration site
available to the public; and
•  that disclosure would not create any tangible benefit to the public.
67. On balance, I have decided that the factors against disclosure outweigh those favouring disclosure and that
disclosure of the conditionally exempt material would be contrary to the public interest.
OFFICIAL
11
ACARA | FREEDOM OF INFORMATION| STATEMENT OF REASONS