LawSense Best Practice Note-Taking & Record Keeping In NSW State Schools

Examining Best Practice to Ensure You Meet Your Obligations, Minimise Legal Exposure and Can Defend Your Legal Position

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Program

12.00    LawSense Welcome

12.05    Chairperson’s Opening

Lila Mularczyk OAM, Education Consultant; former Director, Secondary Education, NSW Department of Education; Immediate Past President, NSW Secondary Principals’ Council

12.10    Note-Taking in Schools: Examining Best Practice and Case Studies to Ensure You Meet Your Obligations, Minimise Legal Exposure and Can Defend Your Legal Position

• Reviewing note-taking and record keeping obligations affecting teachers and leaders in schools, including the impact of recommendations on note-taking and record keeping from the Royal Commission

Note-Taking in Schools: Exploring Best Practice

• Examining different aspects and deficiencies in note-taking that can lead to legal risk or criticism by the Courts:
  • lack of detail or clarity
  • failure to cover key aspects
  • “loaded” words from which inferences could be drawn about the writer
  • writing what you think is happening versus what you observe
  • properly and clearly setting out the basis of any opinions expressed
  • accurately recording conversations:
    • objective versus subjective recording
    • recording every word versus the effect of the conversation and using quotations
    • dealing with and recording “hearsay”
  • making changes to notes after they were originally written
• Understanding how much detail to put into notes and what aspects to cover
• Multiple staff involved in the same issues or occurrence:
  • who should take the notes? What would be expected from teachers at different levels of responsibility?
  • should staff “compare” notes and how should multiple staff taking notes on the same issues be managed?
  • dealing with “loaded” notes or opinions in notes or reports from other staff
• Examining potential polices and templates

Case Studies – Optimum Note-Taking and Documentation In Dealing With Student Behaviour Issues and Parent

• Exploring optimum communications, note-taking and record keeping in dealing with student behaviour, including behavioural disability
• Note taking and communications with difficult parents

Leighton Hawkes, Principal, McCabes Lawyers

1.10       Break

1.20       Record Keeping in Schools: Understanding Your Obligations and Exploring Best Practice

• Outlining the legal framework applying to record-keeping in schools and examining the impacts of recommendations by the Royal Commission and changes in child protection
• Clarifying what a ‘record’ is in schools
• Examining who ‘owns’ the records
• Keeping records in different formats – exploring best practice with emails, texts, hand-written and electronic notes and social media/web
• Using different files for different records
• Understanding legal obligations in storing records in the ‘cloud’
• How long does a school need to keep the records?
• Privacy and confidentiality – who within the school should be able to access different records?
• Dealing with data breaches

Sarah Hargans, General Counsel, NSW Department of Education

2.20       Break

2.30       Objecting to GIPA Requests and Subpoenas: Examining Options, Including Seeking Redaction of Documents

Subpoenas

• Examining key considerations in deciding to object to production of subpoenaed documents or information requested by the Family Court, Coroner and other agencies
• Dealing with the subpoenaing party lawyers to reduce the scope of documents caught by the subpoena
• Understanding options to legally object to a subpoena:
  • objecting on the basis of privilege
  • when can you object to what appears to be a ‘fishing expedition’?
  • seeking for parts of documents to be blacked out / redacted
  • seeking that access only be limited to the lawyers of the parties
• Document redaction: who should redact the documents and what can be redacted?
• What should be contained in your communication regarding your objection?

The GIPA Act

• Outlining key provisions in the Government Information (Public Access) Act 2009 (NSW) relevant to schools
• Examining the extent to which you are required to search for documents or information
• Understanding when you can decline to provide certain types of documents or information
• Dealing with a review of the decision not to provide certain documents

Margaret Baker, Principal Legal Officer (Policy, Compliance and Administrative Law), Legal Services, NSW Department of Education

3.25       Closing Remarks from the Chairperson

3.30       Close of Webinar

Presenters / panelists include:

	Lila Mularczyk was Principal at Merrylands High School for 15 years until 2016.  She was the Deputy President of the NSW Secondary Principals’ Council (SPC) for 8 years, and was SPC Executive Member for 15 years.
	Leighton Hawkes commenced his career in claims management and other technical roles with a major Australian insurance, working on claims for the NSW Treasury Managed Fund (TMF). Leighton has acted for the NSW Department of Education for a significant number of years. Presently he acts in a diverse range of matters, including claims arising from public liability, property damage to NSW schools, historical sexual abuse, discrimination (employee and disability), and Coronial enquiries.
	Margaret Baker has worked for the NSW DoE for over 15 years. Over that time Margaret has provided legal support and advice to people working in schools, TAFE NSW, State Office and other Department areas. This advice ranges from prevention of legal liability and legal risk reduction, to privacy, contracts and compliance. She has also represented the Department in courts and tribunals.
	Sarah Hargans is the NSW Department of Education Chief Legal Officer, bringing with her more than 15 years’ experience providing government legal services. Sarah works with Michael Waterhouse to lead the Legal Services Directorate

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