A 14 year old boy was injured during a PDHPE class when, while trampolining, he collided with a brick wall close to the trampoline. The teacher asked a student teacher and another student to make written statements about the incident. In the course of suing the NSW Department of Education and Training, the boy's lawyers sought production of his school file. The Department opposed this on the ground of client legal privilege under the NSW Evidence Act. The provisions relied upon appear in similar form in the Evidence Acts which apply in the other states and territories.
Under the Act, the contents of a confidential document that was prepared for the dominant purpose of the school being provided with legal services relating to legal proceedings (actual or anticipated) in which the school was or might be a party, may not be used in evidence. A confidential document is one where, when it was prepared, the person who prepared it, or the person for whom it was prepared, was under an express or implied obligation (whether legal, ethical, moral or social) not to disclose its contents.
The statements made were on plain paper. There was no reference to confidentiality on them. There were no express obligations of confidentiality imposed on the people making the statements or on the Department. Accordingly, the Court of Appeal held that there was no privilege in the statements and they could therefore be used in evidence in the boy's claim for damages. The Court also said that, if the documents had been confidential documents, the dominant purpose for their preparation would have related to anticipated legal proceedings.
How then can schools make such documents confidential? First, put CONFIDENTIAL at the top of the document. Second, add at the bottom: The person making this statement acknowledges that it is made for the dominant purpose of the school being provided with professional legal services relating to an anticipated court case in which the school is or may be, or was or might have been, a party. The person making the statement agrees not to disclose its contents.
The information in school reports is personal information and therefore its use is governed by the Privacy Act. Under NPP 2.1(a), the use and disclosure of personal information is permitted for the primary purpose for which it was collected. The information in a school report is collected so that the school can record and follow the progress of a student.
Personal information may be used for a related secondary purpose that is within the reasonable expectations of the student. Most students expect their school reports to be provided to their parents (whether or not they are living with their parents).
However, schools must be alert to particular family situations. For example, if there are orders of the Family Court directed at preventing a parent from knowing the whereabouts of a child (usually for safety reasons), the school ought not to send a school report to that parent. Hence, the importance for schools to obtain copies of current court orders from parents.
A school in France intercepted a student's personal e-mails. The French court held that e-mail messages should remain confidential and denied the school a right to interfere with this privacy despite providing the service. The prohibition applied even when the school suspected that the student was using the service for his own personal use. It was held that to look at student e-mails the school would have had to have a reason clearly defined under the French Telecommunications Code such as the protection of national security. The court ordered the school to pay the student 10,000 francs.
This decision serves as a warning to Australian schools which presently, or plan in future, to monitor students' use of the internet at school. International judicial opinion varies regarding internet monitoring. Some American decisions hold that the use of the internet within an institution like a school or business may imply consent to any monitoring procedures. A more cautious approach is recommended: schools should get an authority from their staff permitting the school to monitor electronic communications. This must be carefully drafted to ensure that it does not infringe any privacy or employment laws.
Students should be told that teachers will check all e-mail messages prior to them being sent by students and will monitor all incoming e-mails sent to students.
Wherever counselling takes place, a duty of confidentiality arises because of the confidential nature of the counsellor-client relationship. It is, therefore, important for school counsellors to know when they can disclose something learned in the course of the counselling without breaching their duty of confidentiality. Can they safely tell a student's parents or other staff what the student has confided in them?
The answer is generally no, unless one of the exceptions to the rule apply. For example, the counsellor would not breach the duty of confidentiality where he or she notified an appropriate authority of:
Likewise, producing documents or giving evidence in answer to a subpoena or police search warrant does not expose the counsellor to liability. However, there are many occasions when the Counsellor can argue that the documents or evidence ought to be kept confidential. Accordingly, we suggest that counsellors adopt an attitude of "aggressive submissiveness". That is, treat everything as confidential until a judicial officer specifically rules that it is not. For example, if obliged to produce documents to a court or to the police, lock the requested records in a container, express willingness to deliver the container and the keys to a Judge or Judge's associate and to no-one else immediately or on the appropriate day and express willingness to be bound by the Judge's ruling on disclosure but only after the Judge has heard your arguments (or your lawyer's arguments) on confidentiality in full.