Public Information (Part Two): Are Schools Keeping their Communities in the Dark?

Published
20 September 2018

This is the second part of a two-part series exploring the kinds of information schools must and should make publicly available. Part Two focuses on the key issues faced by schools when determining what to publish, and proposes some practical solutions. Part One focused on schools’ key legal obligations in this area, which are expanding due to increased focus on transparency.

Despite the fact that it is both legally mandatory and best practice to share information publicly, most schools do not adequately account for their publication requirements.

The most obvious reason for this is that they are unsure about the scope of their publication requirements. Various legal and regulatory regimes contain requirements to make information publicly available, including child protection, school registration and incorporation legislation. But inadequate compliance monitoring only tells part of the story.

Key publication issues

What is "Publicly Available"?

While many legal regimes contain a publication requirement, limited guidance is provided on what would be considered to be a publicly available or accessible document.

For example, the Privacy Act 1988 (Cth) (Privacy Act) stipulates that a relevant entity must take reasonable steps to make a privacy policy available free of charge, in an appropriate form. The Privacy Act notes that an entity "will usually" make its privacy policy available on its website. However, it does not explain further what will be "reasonable" in terms of making this document "available" and in an "appropriate" form.

The Federal Court developed a set of principles about what will be considered "publicly available" in the context of the Patents Act 1990 (Cth), which despite being in relation to a separate area of law provides an interesting illustration for the current discussion. Relevantly, the Court noted that "publicly available" means that the information was made available to at least one member of the public who was free to make use of it. It does not matter whether anyone has actually accessed the document.

In the school context, while information on the school website would clearly be considered to be "publicly available" (unless it was behind a login), there are many other ways that information may also be published depending on the circumstances. Examples include prominent notices on school premises and visitors handbooks accessible at the front office.

Accountability

A school will be held accountable for any information that it makes publicly available, meaning that any information shared publicly needs to be both accurate and appropriate.

From a reputational perspective, any false or misleading information contained in public-facing documentation may reflect poorly on a school in the event that an external inquiry or investigation is conducted or a community stakeholder queries the operation of a policy.

A school also needs to be careful that a published document does not contain any personal information that would be a breach of the Privacy Act.

Keeping Publications Updated

Another significant issue for schools is maintaining the currency of published documentation. Internal policies and procedures should be continuously reviewed to ensure they continue to meet strategic goals and compliance requirements; public policies are no exception. For example, the Privacy Act clearly stipulates that a privacy policy should be kept up-to-date.

Many schools (and other organisations as well) do not have processes in place to audit their websites and publicly-accessible locations or to track the expiry date of published documents, leaving them with chronically out-of-date materials.

Does your institution’s website have a document on it with an upload date of four-five years ago? Does a published document have a stipulated renewal date that has long since passed? Chances are that it does, and the implications of this are clear, given that an organisation will be held accountable for the information it makes publicly available.

How Should Schools Respond to Their Publishing Requirements?

Develop a Governance Charter

In the same way that ASX-listed entities view shareholders as stakeholders, schools also have stakeholders – parents, students alumni and the broader community. Schools seeking to take control of their publication obligations may refer to the ASX Corporate Governance Principles & Recommendations published by the ASX Corporate Governance Council (ASX Council) for guidance. While these Principles and Recommendations only apply to public companies and deal with some irrelevant market-based information, all schools should consider adopting the principles and recommendations generally as a way of framing their governance arrangements. Doing so may improve accountability and transparency to their stakeholders.

The publication of a governance charter on a school’s website will ensure a high standard of disclosure, which can enhance a school’s reputation. The charter should include the following features:

  • legal structure
  • approach to governance
  • governing body composition
  • responsibilities of the principal
  • identities of responsible persons
  • processes for decision-making, financial reporting, child safety and risk management.

Implement Publication Procedures

All schools should have publication procedures in place to help them keep track of what they need to make available publicly as a matter of law and best practice.

Prior to publishing any document publicly, schools should conduct an analysis to ensure that the document:

  • accurately reflects internal processes
  • does not make misleading statements or representations
  • does not contain personal or inappropriate information, in particular sensitive/confidential information contained within school records
  • is structured in a manner that is appropriate for the form of the publication, whether this be content on a website or in a physical/digital handbook.

The ASX Council encourages entities to avoid taking a legalistic approach to disclosures of information, focusing on providing a “holistic and informative explanation” of a governance framework. An illustration of this difference in the school context is provided through the following two example statements:

1. The school governing authority ensures that the school has a child safety policy or statement of commitment to child safety that complies with Ministerial Order No. 870 – Child Safe Standards – Managing the risk of child abuse in schools.

2. Our board is committed to the safety of all our students at our school, and to maintaining child safe environments. Our full commitment to child safety is contained in our Child Protection Policy and our Child Protection Code of Conduct. We have established a Child Protection Framework which sets out work systems, practices and policies which help us to develop a child safe culture, including by taking a risk management approach to identifying and assessing potential risks to child safety. If you have any questions regarding our approach to child protection, please contact our Child Protection Officers.

The first, which is a basic ‘X complies with Y law’ statement, is less useful than the second, which practically deconstructs relevant school processes at a high level and promotes transparency by encouraging community engagement.

Conduct Audits of Current Publications and Their Locations

It is imperative for schools, and other organisations, to regularly review the contents of their website and generally available publications to ensure that any shared information continues to be an accurate reflection of internal processes. An internal assurance process should also be established to keep track of looming expiry dates on published documents.

Drawing upon the recommendations of the ASX Council, public disclosures of information should be clearly presented and centrally located on, or accessible from, a dedicated section of the school’s website, and not behind a login wall. There should be an intuitive and easily located link to this section in the navigation menu of the school’s website, for example under an ‘About Us’ or ‘School Governance’ section.

Schools should also ensure that the manner in which disclosed information is published meets the expectations of its core stakeholder group (parents and students). This means that schools should ensure that information about key compliance obligations and areas of interest – for example student welfare and complaints – is well summarised and easily accessible.

 

Kieran Seed

Kieran is a Legal Research Coordinator at CompliSpace. In his position, Kieran assists with drafting and review of governance, risk and compliance content programs and client-requested policies, while also writing regular articles for School Governance. Kieran’s key focus areas are student duty of care and school registration. Kieran studied at the University of Sydney, completing a Bachelor of Law and Bachelor of International and Global Studies majoring in Government and International Relations.