Official information request to schools – InsideOUT response

Information request made to intermediate and secondary schools by Education Aotearoa, under the Official Information Act 1982 (OIA)

InsideOUT understands an official information request was recently made to intermediate and secondary schools in New Zealand relating to the enrolment data of trans students. We have prepared some advice as follows to support schools with their obligation to respond to this request while upholding the privacy and wellbeing of their trans students.

The following section of guidance was prepared by NZSTA – New Zealand School Trustees Association:

School boards are required to respond to this request. If you have not received it, please check your spam/junk email box.

Here are your first steps:

• • • Immediately acknowledge receipt of the information request and the date that it was received
    • Refer the request to the presiding member of the school board. It is the board that is responsible for responding to (making a decision about) an information request under the OIA
    • The board has 20 working days by which to advise its decision on whether or not to release the information requested
    • If necessary, the board can extend the 20 working day deadline provided it does so before the 20th day
    • The 20 day count continues into school holidays – if the request was received 29 November 2021, day 20 will be 17 January 2022
    • The board can delegate some responsibilities for dealing with the request to its principal or a delegated committee of the board – the delegation might be to put together any information that is relevant to the board’s response. The board can make its decision to delegate by electronic resolution
    • The starting point when responding to an information request under the OIA is to release the information unless there is a good reason not to do so. For example, that the information requested is, or will soon be, publicly available
    • Some of the questions could be declined depending on the circumstances of your school, using the s9(1) OIA public interest balancing test: does protecting the privacy of students outweigh the public interest in providing this information? This should be considered if there is a risk of individual students being identified in any response
    • Documentation that is released may also need to be redacted using the same interest balancing test.

As you consider your response to this request, please feel free to contact the Office of the Ombudsman which has a useful Guide to processing official information requests or NZSTA governance advice at govadvice@nzsta.org.nz for further advice.

There is further information on the NZSTA Governance support resources webpage – under the heading “Complaints and information requests” and in the October 2021 edition of STANews.

The following guidance was prepared by InsideOUT with assistance.

This request provides very little information on who it is from, although we are aware it is from a group of anti-trans individuals who have stated their purpose for this OIA is to ‘protect our young people from gender ideology
and its ramifications’. The same individuals signed a letter to school guidance counsellors promoting conversion practices for trans students earlier this year.

We know it is not from the magazine Education Aotearoa, run by NZEI. There is no other known organisation or public online presence related to Education Aotearoa. In the first instance, schools could choose to ask for further clarification about who the information is being released to and if they are based in New Zealand before responding, as the Official Information Act only requires the release of information to those in New Zealand. 

The Official Information Act 1982 (or OIA) enables citizens, permanent residents, visitors to New Zealand, and body corporates registered or with a place of business in New Zealand, to make a request for official information held by government agencies

From a privacy perspective there are a range of reasons why the majority of this information requested for should not be released. Youth19 found that transgender and non-binary students make up only 1% of our secondary school populations. The questions relating to year enrolled, level and ethnicity would certainly enable the easy identification of students in many schools and as such InsideOUT considers passing this information on to be a breach of the Privacy Act 2020. If your school has already passed this information on we would strongly recommend reporting this to the Office of the Privacy Commissioner as a privacy breach.

 Here is a suggested template for a further response to the specific questions asked – please note some of these will require schools to write their own response.

Dear Education Aotearoa,

Thank you for your request for information. Please accept this as an acknowledgement and response to your request under the Official Information Act 1982.

As you may already know, your offer to collate responses does not relieve the school of any individual obligations of privacy or confidentiality under the Act. Accordingly, your offer to do so has been considered and rejected in the preparation of this response.

To the limited extent that they are available, answers to your individually numbered questions appear below. We apologise for the paucity of information, but in most cases your requests seek either information the school does not hold, or information that is readily available from other public sources. The Act does not require us to compile information held elsewhere on your behalf. 

• Q1. “number of students on roll (…)” This request is refused under section 18(d) of the Official Information Act, on the grounds that the information sought is already published by the Ministry of Education.
  
  
• Q2(a). “number of students on roll (…)” This request is refused under section 18(d) of the Official Information Act, on the grounds that the information sought is already published by the Ministry of Education.
  
  
• Q2(b). “number of students on roll (…)” This request is refused under section 18(d) of the Official Information Act, on the grounds that the information sought is already published by the Ministry of Education.
  
  
• Q2(c). “number of students on roll (…)” No students are enrolled in a category of “trans-identified girls (sic)” because this category does not exist in the school enrolment reporting used by the Ministry of Education in New Zealand. If the unusual categorisation in your request is the result of an error or misunderstanding, then the information you’ve requested is already published by the Ministry of Education. This request is refused under section 18(g) of the Official Information Act, on the grounds that the information sought is not held by the school.
  
  
• Q2(d). “number of students on roll (…)” No students are enrolled in a category of “trans-identified boys (sic)” because this category does not exist in the school enrolment reporting used by the Ministry of Education in New Zealand. If the unusual categorisation in your request is the result of an error or misunderstanding, then the information you’ve requested is already published by the Ministry of Education. This request is refused under section 18(g) of the Official Information Act, on the grounds that the information sought is not held by the school.
  
  
• Q2(e). “number of students on roll (…)” The school does not hold any authoritative record of students identifying as non-binary or gender-fluid, so a complete response would require us to perform an individual examination of every enrolled student, which is beyond the scope of the requirements of the Act. However, you may find more helpful general information about the number of non-binary or gender-fluid people in New Zealand published by Statistics New Zealand and Youth19. This request is refused under section 18(f) of the Official Information Act, on the grounds that the information sought would require substantial research to prepare.
  
  
• Q3. “year of enrolment (…)” This question is refused under section 9 (2)(a) of the Official Information Act, on the grounds that releasing individually-identifiable enrolment records would violate the privacy of a natural person within the scope of the Act. Please keep this in mind before submitting further requests for information.
  
  
• Q4. “year level (…)” This question is refused under section 9 (2)(a) of the Official Information Act, on the grounds that releasing individually-identifiable enrolment records would violate the privacy of a natural person within the scope of the Act. Please keep this in mind before submitting further requests for information.
  
  
• Q5. “ethnicity (…)” This question is refused under section 9 (2)(a) of the Official Information Act, on the grounds that releasing individually-identifiable enrolment records would violate the privacy of a natural person within the scope of the Act. Please keep this in mind before submitting further requests for information.
  
  
• Q6. “any consultation (…)” Enrolment eligibility in New Zealand schools is determined by the address of the student’s usual residence. There is no process of consultation regarding individual enrolments for any student who meets this criteria. This request is refused under section 18(g) of the Official Information Act, on the grounds that the information sought is not held by the school.
  
  
• Q7. “correspondence, emails, (…)”

⚠️ This is a legitimate question if the school has any of this information (in most cases this would be unlikely) otherwise the request can be refused under section 18(g), on the grounds that the information sought is not held by the school. There are further plausible grounds for redaction or refusal: section 9 (2)(a) protect the privacy of natural persons; section 9 (2)(c) avoid prejudice to measures protecting the health or safety of members of the public.

• Q8 “changes to school facilities (…)”

⚠️ Legitimate question. A factual description of any changes would satisfy this request, if any changes were made as a result of enrolments. There are some plausible grounds for refusal because the question is asked in the context of a student category that does not exist, but the intent is clear and responses should not be intentionally obtuse or obstructive.

• Q9 “increase in enrolment (…)” The school holds no information relating to potential future enrolments in the categories requested. The Act does not require us to create new information, compile information we do not hold, or provide or prove an opinion. This request is refused under section 18(g) of the Official Information Act, on the grounds that the information sought is not held by the school.

   

• Q10 “forms of identification (…)”

⚠️ Legitimate question. A factual description of the typical enrolment process would satisfy this request. Typically a birth certificate or passport would be shown in enrolment. The second part of the question could be refused, in so far as “sex” as a category distinct from gender is not typically recorded in New Zealand schools.

• Q10(a) “birth certificate (…)” The school does not hold or create records relating to the “sex” of any person during the enrolment process. It’s not clear what information this question is requesting. If your question relates to student gender, this information is already published by the Ministry of Education.
  
  
• Q11″what guidance (…)”

⚠️ Legitimate question, but the scope of the question is quite narrow. Two options for suggested responses are below:

Option 1

The school is satisfied with the current information on processing student enrolments from the Ministry of Education. The school would like to see the Ministry of Education move to allow NSI data collection on more than just ‘male’ and ‘female’ gender options to better reflect student’s genders and bring this in line with gender options available in school student management systems. 

Option 2

The school does not hold information about hypothetical future communication from the Ministry of Education, and the Act does not require us to create new information, compile information we do not hold, or provide or prove an opinion. This request is refused under section 18(g) of the Official Information Act, on the grounds that the information sought is not held by the school.

Under section 28(3) of the Act, you have the right to seek an investigation and review of our decision by the Ombudsman. The Ombudsman’s Office can be contacted on 0800 802 602 or online at http://www.ombudsman.parliament.nz/.

Yours sincerely,

Where to go for further support:

As you consider your response to this request, please feel free to contact the Office of the Ombudsman which has a useful Guide to processing official information requests or NZSTA governance advice at govadvice@nzsta.org.nz for further advice.

Privacy Officers at New Zealand Business Tools are also happy to provide support: privacy@nzbt.co.nz