"A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications."

1. The respondent argues there is in force an enactment which applies specifically to the kind of information found in each of the documents which prohibits persons from disclosing information of the kind found in each document. It argues that s 30(2) of the Corrections Act 1986 ('the CA') is the relevant enactment for the purposes of the s 38 exemption claimed.
2. Section 30(2) of the CA provides as follows:

"A person who holds or has held a position must not, except to the extent necessary to perform official duties powers or functions of that position, record, disclose, communicate or make use of confidential information.

1. Section 30(1) of the CA defines 'confidential information' relevantly as follows:

"(e) information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency; or

(f) information concerning the management of, or the operation of security measures in, or in relation to, a prison; or"

1. Ms Forsyth who appeared as counsel for the applicant, conceded that s 30(2) of the CA when read with the definition of "confidential information" in s 30(1), is an enactment of the kind referred to in s 38 of the FOI Act. The concession was well made.
2. However, Ms Forsyth argues the documents in question are not exempt because the exemption in section 38 of the Act does not relate 'specifically to information of a kind' found to be contained in the documents. She submitted that a proper interpretation of s 30(1)(e) and (f) of the CA, is that confidential information caught within the embrace of the sub sections is only information contained in a document which has an inherent quality about it that requires protection rather than being information that is specific to a particular kind.[1]
3. I do not accept those submissions.
4. In my view, in determining whether the s 38 exemption claimed is made out by the respondent, the tribunal need only decide whether or not in fact each of the documents for which the exemption is claimed contains confidential information of the kind falling within (e) and (f) of s 30(1) of the CA.. To do otherwise is to strain the clear meaning of the words in s 38. In my view were I to proceed as submitted by Ms Forsyth I would be straining the plain meaning of the words used in s 38 of the Act.
5. At the outset of the argument the respondent contended that each of the documents which it has refused to release was exempt under s 38 of the Act because each document contained information of the kind described in both sub sections (e) and (f) of s 30(1) of the CA. However, in argument the respondent conceded that documents 4 and 8 could not fall within the embrace of s 30(1)(e) of the CA.
6. Before giving consideration to the documents themselves it is necessary to analyse what sub sections 30(1)(e) and (f) of the CA mean.
7. Section 30(1)(e) of the CA includes in the definition of "confidential information" "information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency". Mr Batskos, who appeared on behalf of the respondent, submitted that the word "concerning" is a word of wide import meaning 'about or regarding' and the word 'concern' is defined in dictionaries to mean 'to relate to; be connected with; be of interest or importance to; affect' or 'be important or relevant to; relate to; be about'. He submitted the use of the word 'concerning' in the section shows parliament clearly intended an interpretation to cover the broadest of connections to a subject matter.
8. Mr Batskos submitted that the use of the word 'emergency' in s 30(1)(e) of the CA was reference to a sudden state or condition due to an actual or imminent occurrence such as an accident which endangers the safety or health of persons and which requires a significant and co-ordinated response. Mr Batskos submitted that important features of an emergency are a demand as opposed to desirability, and a sense of danger as opposed to mere apprehension and that there must be an urgency which is needed to meet the demand or avoid danger.
9. Mr Batskos referred to authority and dictionary meanings of the word 'emergency' in order to demonstrate how the word was intended to be used in s 30(1)(e) of the CA. He submitted an 'emergency' where used in the CA has been held to mean, "a sudden serious and dangerous event or situation which needs action to deal with it".[2]
10. I accept these submissions of Mr Batskos. For a document to contain confidential information within s 30(1)(e) of the CA it must contain information relating to procedures or plans to be followed in a prison if a sudden serious and dangerous event or situation occurs which needs action to deal with it.
11. Section 30(1)(f) of the CA includes in the definition of "confidential information" information concerning the management of, or the operation of security measures in, or in relation to, a prison. In making submissions about the kind of information falling within the operation of s 30(1)(f) of the CA, Mr Batskos relies upon a previous decision of the tribunal in Western Suburbs Legal Service Inc v Department of Justice [2010] VCAT 454 at [17] where Deputy President Coghlan said at paragraphs 21 and 22, inter alia, as follows:

"I agree with the Department that s 30(1)(f) refers not just to information about the operation of security measures in, or in relation to a prison.

I agree with the Department's submissions that the use of words such as "concerning" and "in relation to" suggest that a broad meaning of what "management" means needs to be applied. I accept the Department's submissions that a broad interpretation is bolstered when one considers the purpose of the Act and the Governor's and the Secretary's responsibilities for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders."

1. Mr Batskos submitted that the Western Suburbs decision supported a broad meaning be given to the words used in s 30(1)(f) of the CA. In support he also relied upon the approach of Justice Beach in Secretary to the Department of Justice v Western Suburbs Legal Service Inc [2009] VSC 68 at [26]. I respectfully agree with the approach taken by Deputy President Coghlan in the Western Suburbs case and apply it here.
2. Mr Batskos referred to the dictionary meaning of the word 'security'. He submitted it means 'freedom from danger, risk, etc; safety...freedom from care, apprehension or doubt; confidence...something that secures or makes safe; a protection; a defence' and further, 'a secure condition or feeling...a thing that guards or guarantees...the safety of a State, company, etc against espionage, theft or other danger'.
3. Again relying on dictionary meanings Mr Batskos submitted the word 'measure' where used in s 30(1)(f) of the CA means 'suitable action to achieve some end' or 'an action or procedure intended as a means to an end'.
4. Applying these arguments Mr Batskos submitted information will be covered by the secrecy provision in s 30(1)(f) of the Corrections Act if the information contained in a particular document is:
   • (a) about, regarding or relevant to the management or operation of the actions or the procedures taken to achieve a condition or feeling of safety (whether generally or in relation to a particular person) in a prison; or
   • (b) about, regarding or relevant to the management or operation of the actions or the procedures taken to achieve a condition or feeling of safety (whether generally or in relation to a particular person), having some direct or indirect relationship with a prison.[3]
5. I turn to deal with the documents and whether or not they contain confidential information within s 30(1)(e) of the CA.
6. The respondent called evidence to support the exemption claimed under s 38 of the Act. The evidence was that each of the documents comprise reports relating to information concerning procedures or plans to be adopted in a prison or prisons in the event of an emergency.
7. I admitted into evidence a witness statement of Ms Liana Buchanan who is the director of the Office of Correctional Services Review ('OCSR').[4] At paragraph 69 of her witness statement Ms Buchanan said most of the documents contain information concerning procedures or plans to be adopted or followed in a prison or prisons in the event of an emergency. That evidence was not contradicted. The respondent also called evidence of a similar kind from Mr Roderick Wise, Deputy Commissioner, Operations, Corrections Victoria.[5] That evidence was also not contradicted.
8. In her witness statement Ms Buchanan gave evidence as to the content of document 1 which I have read in detail. She said in her witness statement adopted as her evidence in chief that document 1 contains information about responses of prison authorities to fire emergencies and incidents as well as other operational aspects of dealing with and being prepared for fires in prisons both generally, specifically in relation to the five prisons forming the basis of the thematic review.[6] Her evidence was that document 1 also deals with trends in fire responses including categorisation of fires, location of fires, and how they were responded to[7] as well as a review of fire prevention and preparedness based on visits to five prisons.[8]
9. Ms Buchanan in her witness statement said document 1 also contained information being an assessment of those five named prisons against their respective operational requirements including management of hazardous materials, placement, management and maintenance of fire fighting equipment, training for fire emergency responses and fire alarm coverage.[9] The evidence is that document 1 contains information about processes and procedures in place at particular prisons concerning the outbreak of fires and makes general recommendations in relation to prisons more broadly, in relation to handling of fire emergencies and other similar incidents.[10]
10. Finally, Ms Buchanan gave evidence that document 1 contains details of various procedures or plans to be adopted or followed in prisons in the event of a fire emergency.[11] None of that evidence is contradicted in any way. I have read document 1 and I accept the evidence of Ms Buchanan.
11. As its description, conveyed by its title, suggests document 3 is related to document 1. It is a "post review" of the matters raised in document 1. Mr Batskos submitted the descriptions of the information contained in document 1 apply equally to this document. Ms Buchanan in her witness statement said document 3 contains information which concerns the management or operation of security measures in prisons and deals with procedures to be adopted in the case of fire emergencies.[12]
12. Ms Forsyth did not really dispute the evidence other than to submit, as I have said before, that documents 1 and 3 did not contain information of the kind embraced by the s 38 exemption. Mr Batskos on the other hand submitted that documents 1 and 3 clearly contain information directly or indirectly related to or about procedures or plans to be adopted or followed in at least one prison in the event of a fire, which is clearly a form of emergency. Therefore, he submitted both documents contain information specifically of the kind exempted by s 38 of the Act when read with ss 30(1) and (2) of the CA Act. I accept those submissions which are consistent with the content of the two documents themselves and with the evidence of Ms Buchanan and Mr Wise.
13. Document 4 contains information following a review which considered aspects of prisoner mail policy and intervention orders relating to or associated with prisoners. The review considers aspects of mail policy and procedures in prisons in the context of the legislative provisions relating to prisoner mail.
14. As I have said, in submissions Mr Batskos on instructions did not contend document 4 could be classified as containing information of the kind referred to in s 30(1)(e) of the CA. That was a concession well made. Having read the document in my view it could not be properly argued the document contains information 'concerning procedures or plans to be adopted or followed in a prison in the event of an emergency'. However, in making the concession, Mr Batskos maintains that document 3 nonetheless falls within the embrace of s 30(1)(f) of the CA. I will deal with this aspect later.
15. Document 6 is a report which sets out various views and recommendations in relation to the management of prison discipline processes.
16. I have read the document in detail. In my view it cannot be said the document contains information 'concerning procedures or plans to be adopted or followed in a prison in the event of an emergency'. It does not contain information of the kind referred to in s 30(1)(e) of the CA.
17. Document 7 is a review of the use of lockdowns in Port Phillip Prison over a specified limited period and makes comments or recommendations in relation to use of that measure. Mr Wise gave evidence that it is sometimes necessary to use the lockdown procedure in the event of an emergency and therefore can inherently be about emergencies as well as about security relating to the prison.[13]
18. Whilst I accept that lockdowns can sometimes be used in the event of an emergency, that is not what document 7 is about. It is more about the inappropriate use of lockdowns. In my judgment, document 7 does not contain information of the kind referred to in s 30(1)(e) of the CA.
19. Document 8 is a review of services provided to prisoners in protection as compared with services provided to mainstream prisoners.
20. As with document 4, in submissions Mr Batskos on instructions did not contend document 8 could be classified as containing information of the kind referred to in s 30(1)(e) of the CA. Again, that was a concession well made. Having read the document in my view it could not be properly argued the document contains information 'concerning procedures or plans to be adopted or followed in a prison in the event of an emergency'. However, in making the concession, Mr Batskos maintains that document 8 nonetheless falls within the embrace of s 30(1)(f) of the CA. I will deal with this aspect later.
21. I turn to deal with the documents and whether or not they contain confidential information within s 30(1)(f) of the CA.
22. In her witness statement, Ms Buchanan said each of the disputed documents contain information concerning, firstly, the management of a prison or prisons, secondly, the management of security measures in a prison or prisons, thirdly, the management of security measures in relation to a prison or prisons, fourthly, the operation of security measures in a prison or prisons and finally, the operation of security measures in relation to a prison or prisons.[14]
23. In his witness statement, Mr Wise said that the reports contain recommendations and opinions about security related matters.[15]
24. Referring to documents 1 and 3 Mr Batskos submitted that the handling of fires in prison is just one aspect that relates to the respondent's obligation to provide for the safe custody and welfare of prisoners. It is one aspect of an array of security measures taken in prisons as part of that obligation to provide for the safe custody and welfare of prisoners.[16]
25. Mr Batskos submitted that how prisons address fires is inherently about safety and security of prisons and prisoners and that documents 1 and 3 clearly fall within the definition of confidential information in s 30(1)(f) of the CA. I accept these submissions. I do not accept Ms Forsyth's submissions that documents 1 and 3 are not of the kind falling within the exemption in s 38 of the Act. In my view documents 1 and 3 are exempt within s 38 of the Act.
26. Document 4 is a review that considers aspects of prisoner mail policy and intervention orders relating to, or associated with, prisoners. Ms Buchanan gave evidence the review was conducted in the context of providing for the security and safety of prisons, prison staff and prisoners.[17] Ms Buchanan said document 4 also refers to means of dealing with intervention orders taken out by or against prisoners and how such orders could be managed as part of the security measures and management of prisons in order to ensure the safety and welfare of prisons, prisoners and others.[18]
27. The respondent submits document 4 contains confidential information within s 30(1)(f) of the CA because the information in the document concerns the management and operation of security measures in or in relation to prisons. I accept that submission. I do not accept Ms Forsyth's submissions that document 4 does not contain information of the kind falling within the exemption in s 38 of the Act. In my view document 4 is an exempt document within s 38 of the Act.
28. Document 6 concerns the administration of prisoner discipline within prisons. Ms Buchanan in her witness statement said document 6 sets out various views and recommendations in relation to the management of prison discipline processes in the context of the legislative framed work for prison discipline provided for in Part 7 of the Corrections Act and Part 4 of the Corrections Regulations.[19] The provisions of the CA referred to and, the provisions of the Corrections Regulations referred to, include offences for breaches of security.
29. I accept the evidence of Ms Buchanan that prisoner discipline is important as it relates to the respondent's obligation to provide for the safe custody and welfare of prisoners. Discipline in its prisons is one part of a number of security measures that the respondent must undertake to provide for the safe custody and welfare of prisoners. As such discipline relates to the management of the prisons as well as the management and operation of security measures in prisons.[20] That this is so must be obvious.
30. I accept that document 6 contains confidential information within s 30(1)(f) of the CA. I do not accept Ms Forsyth's submissions that document 6 does not contain information of the kind falling within the exemption in s 38 of the Act. In my view document 6 is an exempt document within s 38 of the Act.
31. Document 7 is about the use of lockdowns at Port Phillip Prison over a specified limited period. The document contains comment or recommendations in relation to use of lockdowns at that prison and also makes recommendations in relation to the management of the Prison.[21]
32. Ms Buchanan gave evidence about the use of lockdowns in a prison. She said the use of such procedure was one method the respondent employed to comply with its obligation to provide for the safe custody and welfare of prisoners. In that way the use of lockdowns concerned the management of a prison.[22]
33. Mr Batskos relies on this evidence to submit document 7 contains confidential information within s 30(1)(f) of the CA . Having examined the document I accept that submission. I do not accept Ms Forsyth's submissions that document 7 does not contain information of the kind falling within the exemption in s 38 of the Act. In my view document 7 is an exempt document within s 38 of the Act.
34. Document 8 concerns protection prisoners. Mr Batskos submits that the way protected prisoners are treated or managed within a prison is an integral part of the operation and management of prison security. Ms Buchanan gave evidence document 8 deals with the availability of services to protection prisoners compared with availability of services to mainstream prisoners and so concerns the management and operation of a security measure in prisons.[23] I have read document 8 and accept this evidence.
35. I accept the information contained in document 8 relates to management and operation of prisoners with protection status which is used as a security measure, in or in relation to prisons. I accept document 8 contains confidential information within s 30(1)(f) of the CA. I do not accept Ms Forsyth's submissions that document 8 does not contain information of the kind falling within the exemption in s 38 of the Act. In my view document 8 is an exempt document within s 38 of the Act.
36. Having examined the documents and heard evidence I am satisfied the respondent has made out its claim for exemption for each document in dispute within s 38 of the Act. In my view each of the documents contains information of a kind that is protected by the operation of ss 30(1) and (2) of the CA.
37. The claim for exemption of each document under s 38 of the Act having been established by the respondent it is not necessary in the circumstances for me to consider the further exemption claimed in respect of some only of the documents under s 30(1) of the Act.
38. I turn to consider whether the documents exempt from release because of operation of s 38 of the Act should nonetheless be released to the applicant in the public interest exercising the discretion in s 50(4) of the Act.
39. The applicant submits there is a public interest to be served in the release of the documents. The applicant contends the public interest is in ensuring the proper administration of the prison system, particularly where the state is exercising extraordinary coercive powers behind prison walls.[24] The applicant contends this public interest in the documents will be advanced by the documents, if released, because the documents will allow a greater understanding within the community of how the government manages prisoners.[25] The applicant also points to a number of decisions of the tribunal which it contends show that information relating to administration of prisons and other institutions where persons are incarcerated involuntarily has historically been regarded as requiring disclosure.[26]
40. The applicant contends the public interest in the documents disputed in this case is strong because of the lack of access to information that is currently available to the Victorian community in relation to documents held by the OCSR and its predecessor, with neither body being accountable to parliament or subject to public reporting requirements.[27]
41. Further, the applicant contends questions regarding the proper administration of the prison system remain relevant and continue to be accompanied by widespread debate and disquiet within the legal fraternity and wider community. The applicant contends the public interest necessitates disclosure to clear the air and to allow informed community debate.[28]
42. The applicant further submits that it is in the public interest for the community to know whether proper processes have been followed when public money is being spent and, for the community to be properly informed about the workings of government, so that intelligent discussion may occur concerning the adequacy of such activities. The public interest may require that the public have sufficient knowledge to properly consider and debate the issues in question or to be placed in a position whereby they are better informed and thus able to promote public debate on a matter that affects them.[29]
43. The respondent submits the public interest grounds advanced by the applicant collectively amount to what the courts have called 'abstract policy considerations'. It argues none of grounds contended for by the applicant demonstrate a sufficiently high public interest threshold such as to be capable of supporting an opinion that the public interest requires disclosure in the face of the s 38 exemption which has been made out. The respondent relies upon principles expressed by the Court of Appeal and the High Court.[30]
44. For many years now the correct approach to be adopted by a tribunal in deciding whether exempt documents should nonetheless be released in the public interest, applying section 50(4) of the Act, has been the subject of judicial consideration. In 1991 in DPP v Smith [1991] VicRp 6; [1991] 1 V.R. 63 at page 76, the Full Court of the Supreme Court of Victoria quoted with approval a statement by His Honour Judge Rowlands sitting as the President in the Administrative Appeals Tribunal in a decision in re Chadwick and Department of Property and Services where Judge Rowlands said:

It requires public interest factors of a high order to countervail the doctrine in the balancing process which must take place if there are competing public interest factors to be considered.

1. The words 'public interest factors of a high order' are not unlike recent statements of principle by the High Court on the same subject. In Osland v Secretary, Department of Justice (No.2) [2010] HCA 24 the High Court has recognised that the public interest override in the Act is unique in freedom of information legislation in Australia. The Court described the power in s 50(4) of the Act to be a "significant and exceptional power" and a "most extraordinary provision".[31]
2. In Osland (No 2) in the joint judgment of the Chief Justice and Justices Gummow and Bell, their Honours said, inter alia at paragraph 14:

"it must be accepted that the word "requires" which appears in s 50(4) directs the decision-maker to identify a high-threshold public interest before the power can be exercised. It is not enough that access to the documents could be justified in the public interest. The terminology of the sub-section does not define a rule so much as an evaluative standard requiring restraint in the exercise of the power. It is, like many common law standards, "predicated on fact-value complexes, not on mere facts", to be applied by the decision-maker."

1. I think there is merit in the argument advanced by the respondent that the public interest grounds contended for by the applicant here amount only to a list of abstract policy considerations. But, accepting the contentions advanced by the applicant at their highest, in my view the contentions advanced neither individually nor collectively identify a high threshold public interest that would justify release of the documents applying s 50(4) of the Act notwithstanding that the documents are exempt within s 38 of the Act.
2. For these reasons the decision of the respondent on 14 October 2008 refusing a request by the applicant for access to documents in its possession is affirmed

[1] Applicant's supplementary legal contentions paragraphs 4 and 5

[2] Oxford Dictionary referred to with apparent approval in Commissioner, Corrections Victoria v Pavic [2005] VSCA 244, [24] per Maxwell P.

[3] Respondents written submissions paragraph 2.24

[24] Applicant's statement of Public Interest Grounds paragraph 3.

[25] Applicant's statement of Public Interest Grounds paragraph 14.

[26] Applicant's statement of Public Interest Grounds paragraph 14 and the cases referred to in footnote 11.

[27] Applicant's statement of Public Interest Grounds paragraph 15

[28] Applicant's statement of Public Interest Grounds paragraph 15

[29] Applicant's statement of Public Interest Grounds paragraph 16

[30] The respondent relies on principles expressed in Secretary to the Department of Justice v Osland [2007] VSCA 96 at [114] and Secretary to the Department of Justice v Osland [2009] VSCA 69 and Secretary to the Department of Justice v Osland [2008] HCA 37 at paragraphs [147], [150], [152] and [156] in the judgment of Justice Hayne.

[31] Osland v Secretary, Department of Justice (No.2) [2010] HCA 24 at [14], per French CJ, Gummow J and Bell J. See also Osland v Secretary, Department of Justice [2008] HCA 37 at [100] per Kirby J; and Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 341 [28] per Phillips JA.