1 Feb 2006, 09:00

A PhD student requested access to the email correspondence that had taken place between the examiners of her thesis. In particular, the student wanted email correspondence that had occurred after the examiners had written their reports about her thesis but prior to the release of those reports to her.

The University refused to provide the email correspondence to the student, relying on section 29(1)(b) of the Privacy Act 1993. The University believed that the disclosure of the email correspondence would breach an implied promise to the examiners that it would remain confidential.

Section 29(1)(b)

Section 29(1)(b) of the Privacy Act provides that an agency may refuse to release personal information if the information is "evaluative material" (as defined in section 29(3) of the Act) and the disclosure of the information would breach an express or implied promise that the information would be held in confidence.

Accordingly, before information can be properly withheld under section 29(1)(b), three conditions must be met:

1 The information must be evaluative or opinion material compiled solely for one of the purposes set out in section 29(3);
2 There must have been an express or implied promise made to the person supplying the information that the person's identity or the information (or both) would be held in confidence; and
3 Releasing the information to the requester would breach that promise.

In relation to the first condition, I was satisfied that the email correspondence was evaluative material written by the examiners as part of their process of determining the student's suitability for the award of the PhD degree. This was its sole purpose. It was therefore material covered by section 29(3)(a)(iv).

In relation to the second condition, the University maintained that it is widely understood by both internal and external examiners that the material created by examiners, in the course of assessing a thesis and reaching a conclusion about whether a degree should be awarded, is confidential.

The University informed me that each of the three examiners who prepared reports on the student's thesis confirmed their understanding that informal email discussions (during the process of assessing a PhD thesis to decide whether to award the degree) would be kept confidential. We received written confirmation from two of the examiners to that effect. The third was unavailable for comment.

The University also provided a supporting letter from a Professor with over 30 years experience in examining theses. The Professor confirmed that there is a clear understanding that all email discussions will be entirely confidential and this is vital for often complex negotiations to proceed to a satisfactory outcome.

In these circumstances, I was satisfied that there was an implied promise made by the University to the examiners that the email correspondence between the examiners was to be held in confidence. In relation to the third condition, I accepted that the release of the emails to the student would breach that promise.

It was therefore my final opinion that the University had a proper basis to withhold the email correspondence from the student under section 29(1)(b). I notified the student of my opinion and closed my file.

September 2006

Indexing terms: Access to personal information - Tertiary education institution - Evaluative material - Privacy Act 1993, ss 29(1)(b) and 29(3)(a)(iv)