Request by non-custodial parent for children’s school reports
Request by non-custodial father for school reports of two daughters—father accused of indecently assaulting daughters—father denied charges—information required for defence—s 9(2)(a) applicable, but public interest under s 9(1) in right to justice outweighed complete protection
As noted in Cases Nos W32982 and W34275, where a student, who is seen as being mature enough to make the decision, decides that he or she does not wish a non-custodial parent to have access to his or her school reports, those reports may be withheld if requested by a non-custodial parent, although a brief statement may be given to the requester.
In this case, the father had been accused of indecent assault and sexual violation by his daughters. He denied the allegations. The Crown case consisted of evidence of the daughters and their mother. Counsel for the father believed that the progress and welfare of children who have been subject to sexual abuse is generally reflected in a diminution of their performance at school and a withdrawal from social and group participation. Accordingly, access to the daughters’ school reports might establish whether there had been any discernible trauma in their lives that would materially affect his cross-examination of the alleged victims. The reports had been withheld under section 9(2)(a) of the OIA.
In looking at countervailing public interest considerations in terms of section 9(1) of the OIA, there is clearly a strong public interest in ensuring the right of an accused person to a fair trial. In this case, as there was a lack of evidence such as medical reports and police interviews to support the complaints, access to the school reports assumed real significance for the defence. Given these unusual circumstances, the provisional view was formed that the strong public interest in the right to a fair trial outweighed the recognised privacy interests attaching to school reports of adolescents.
After consultation with the Privacy Commissioner, seeking the comments of the daughters themselves on the issues, and further discussion with the board of trustees, it was agreed that the identified public interest in disclosure of the information would be met by the board providing a summary referring to whether, during the relevant period, there had been any change in either daughter’s academic performance or participation in extra-curricular and sporting activities.
Although the board recognised the strength of the public interest which had been identified, it was nevertheless reluctant to make the information available to counsel for the defence without the consent of the students concerned. Their legal representative was consulted and advised that the matter should be referred to the Crown Prosecutor for consideration. As a result of further discussions, the relevant information was made available to the defence.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.