Victorian Civil and Administrative Tribunal|2008-08-27

Debono v Department of Justice - FOI Officer (General) [2008] VCAT 1791 (27 August 2008)

General List; Freedom of Information Act 1982; Access sought by prisoner now former prisoner to clinical assessments made with respect to him for purposes of prevention of violence program and consideration of parole; Document released with deletions; Former prisoner seeking review of determination to make deletions; Freedom of Information Act 1982 Section 30(1), Section 35(1)(b); Exemptions made out; Public interest override not engaged; Respondent's decisions affirmed.

Respondent's determinations made 25 September 2007 and 3 October 2007 are affirmed.

Ms Kummrow of Counsel, instructed by Victorian Government Solicitor

On 12 March 2003 Mr Debono was sentenced to a term of imprisonment after pleading guilty to manslaughter. In 2006 Mr Debono was being assessed to consider what future programs he might undergo as part of his imprisonment and to consider his being paroled. Mr Debono says he suffers an acquired brain injury as a result of the abuse of alcohol and illicit drugs. For the purposes of this assessment Mr Debono was sent to the Marngoneet Correctional Centre which is in Bacchus Marsh Road, Lara, adjacent to Barwon Prison.
Mr Debono was the subject of two written assessments, the first styled 'Exploring Change Participant Completion Report' dated 4 August 2006 and a second document styled 'Victorian Violence Treatment Plan Tier 2b Specialist Assessment and Management Plan' dated 8 August 2006.
It was envisaged that Mr Debono would complete the Victorian Violence Treatment Program during his time at Marngoneet preparatory to his being released on parole. As it happened he did not complete that program at Marngoneet and as a result he was denied parole. Eventually he completed the treatment program on a solo basis at Loddon Prison in contrast to the group program envisaged at Marngoneet. He was released on parole by the Parole Board some 14 months after the date on which he initially expected his release to occur.
Mr Debono believes that his removal from the program and hence his failure to attain parole was as a result of a clash that he had with one of the team of psychologists involved in his treatment and assessment at Marngoneet. He believes that passages in the two documentary assessments described above also played a role in his being removed from the program. Ms Susan Hadley a Senior Clinician at Corrections Victoria gave evidence that Mr Debono's removal from the program related to his behaviour rather than to anything in the assessment. Mr Debono conceded that he did have a physical clash with another prisoner who was also taking part in the program.
Mr Debono sought access to the two documentary assessments pursuant to the Freedom of Information Act 1982. The documents have been released to him with significant deletions. He seeks access to them in their full and unexpurgated form. He has said that he does not seek access to any personal information as that phrase is defined in the Freedom of Information Act so that whilst a number of names have been deleted from the documents in question Mr Debono is not seeking access to those names, indeed in so far as a relatively small group of psychologists provided the programs at Marngoneet it is reasonable to infer that Mr Debono is already well aware of the names of the individuals in question.

The Department relies upon two exemptions in the Freedom of Information Act 1982 to justify its refusal to release the entire text of the two reports. The exemptions are those constituted by Section 30(1) of the Act. This sub-section states as follows:

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government;

The second exemption relied upon is that constituted by Section 35(1)(b) of the statute which provides as follows:

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

Ms Kummrow of Counsel represented the Department. She said that the documents in question were:

Reports prepared by clinicians employed by the respondent. The purpose of the documents is to report on the applicant's participation and suitability for treatment programs to assist with his rehabilitation while in the corrections system.

She submitted therefore that the documents by their nature would disclose opinion, recommendation or advice prepared by the respondent's officers in the course of its deliberative processes. She referred to Penhalluriack v Department of Labour and Industry (unreported County Court of Victoria 19 December 1983) and Coleman v Director General Local Government Department Pentland (1995) 1 VAR 9, 11 where Judge Rowlands said that the exemption was intended to encourage the free exchange of ideas during the process of deliberation and policy making. She said the deliberative process in question was in effect the Department's thinking processes. She referred to Waterford v The Department of Treasury (No. 2) [1984] AATA 67; (1984) 5 ALD 588, [206]; Brog v Department of Premier and Cabinet [1989] 3 VAR 201, 208 and Maloney v Department of Human Services (2001) 18 VLR 238, 244. Ms Kummrow conceded that merely establishing that the documents in question were of that character, did not make out the exemption. It was necessary further to show that release of the documents in their unedited form would be contrary to the public interest. She submitted that applying this public interest test entailed a balancing exercise. She referred to Pescott v Auditor General of Victoria (1987) 2 VAR 93, 96 and Ryder v Booth [1985] VicRp 86; [1985] VR 869, 879.
She submitted that the release of these documents without deletions would impede the provision of full and frank reports, would lead to lack of candour in reports rendering them less effective for their purpose. Further, she said that release of the documents unedited:

Could lead to information being disclosed to the broader prison population, which would compromise offender security and welfare by exposing them to harm from other offenders who may become aware of that person's psychological information.

Clinicians would be rendered vulnerable to recrimination. She referred to Brygel v Department of Justice (unreported Administrative Appeals Tribunal 17 July 1996) and McCubbin v Office Of Corrections (unreported Administrative Appeals Tribunal of Victoria, 14 April 1993). She said the report would not necessarily reveal final decisions and might therefore be misleading. She submitted that disclosure of the documents unedited:

Would divulge psychological methodology used by clinicians, which could be used by offenders to undermine the clinical assessment and treatment processes.

These various contentions were supported in evidence called from Ms Susan Hadley, a Senior Clinician employed by the Department at Marngoneet.
As to the second exemption relied upon, namely the one under Section 35(1)(b) Ms Kummrow said that the determination as to whether information was communicated in confidence was a matter of fact. She referred to Ryder v Booth [1985] VicRp 86; [1985] VR 869, 883. She said no formal confidentiality agreement was required, consideration needs to be made of the understanding of the party communicating and the circumstances surrounding the communications. She referred to Thwaites v Department of Health and Community Services (1995) 8 VAR 361, 366; Barling v Medical Board of Victoria (1992) 5 VAR 542, 561-2; Hoskin v Department of Education and Training [2003] VCAT 946 [18]; Williams v Victoria Police [2005] VCAT 2516 [48]. She said release of the documents unedited would:

Divulge confidential information obtained from third party neuropsychological and psychological assessment reports in relation to [Mr Debono].

She said that information was communicated in confidence. She said clinicians who provide information to the Department expect the information to remain confidential. A failure to ensure that confidential information so provided remains confidential would impair the ability of the Department to prepare similar reports in the future.
Ms Kummrow said there was nothing which would justify resort to the public interest override in Section 50(4) of the Freedom of Information Act. She said that the public interest referred to was of benefit to the community rather than curiosity either of the entire community or an individual applicant. She referred to Just v Department of Justice (1996) 10 VAR 126, 129. She said release of the documents in dispute would mean in substance their release to other members of the prison community and the word 'requires' in Section 50(4) had an imperative sense meaning demand or necessitate. She referred to the Department of Treasury and Finance v Hulls [1999] VSCA 117; [1999] 3 VR 331, 342 and Secretary to Department of Justice v Osland [2007] VSCA 96 [92].

Mr Debono's view was that he had been required to serve an additional 14 months imprisonment before becoming eligible for parole by reason of the assessments which had been made of him at Marngoneet. He said the Chairman of the Adult Parole Board, Cummins J told him that his first application for parole was denied because he had 'left the program' or 'fallen out with one of the psychologists'. He believed that the material in the reports was misleading and incorrect. He wanted to get to the bottom of it.
Mr Debono took me to a course of correspondence between himself and the Secretary to the Adult Parole Board commencing with a letter from Mr Debono to the Board Secretary dated 22 February 2008. In the first of those letters Mr Debono sought information from the Secretary as to why his 'PINS file recorded that on 13 April 2007 his parole was 'revoked''. He said:

I would like to ascertain my piece of mind as what the reasons were for to take the course of actions to revoke my parole on April 13th 2007. As to why it stated on my PINS file that I was to be seen by the Parole Board in January 2008 and why I was not seen by anybody on the Board as documented on my PINS.

The Parole Board General Manager, Mr David Provan replied on 29 February stating that the Board had determined that a Violence Intervention Program Completion Report was required. He said as soon as the program facilitator filed such report the Board would immediately 'review your case'. On 1 April 2008 Mr Debono wrote a further letter this time addressed to Mr Provan personally. He complained that Mr Provan's letter was only received by him on 27 March, that is 27 days after the date which it bore. He complained that he had not received proper notice of an order the Board made 6 February 2008 'Violence Intervention Program Completion Report required'. He said he hoped to be able to spend some time with his father before his father died, presumably this could only occur once Mr Debono had been released on parole. In a letter dated 6 April, Mr Provan said that any complaints about the delivery of mail should be addressed to the appropriate officer at Loddon Prison.

Having read the two documents myself I am satisfied that they constitute opinion, recommendation or advice given by one officer of the Department to another, hence they are entitled to exemption under Section 30(1) of the Freedom of Information Act if it can be demonstrated that it is contrary to the public interest to release them. As Ms Kummrow's submissions rightly indicated there are competing public interests here. So far as Mr Debono and those who are concerned to ensure the observance of his human rights are concerned, there is a strong public interest in transparency. Whether or not the contents of this particular report or these particular reports had a material effect on the date that Mr Debono was paroled, it is clear that documents such as this had the potential to have a serious effect on such matters. It seems to be contrary to fundamental concepts of fairness or as the common law would have it, contrary to natural justice to have a person's legitimate interest in seeking parole affected by what the person might regard as a secret denunciation from a clinician. On the other hand there is a very strong public interest and in my view a public interest which predominates over the one just described in ensuring that clinicians have the opportunity to give reports of this type in a frank and candid manner without the potential for intimidation.
Mr Debono and any other prisoner or former prisoner in his situation was or would be imprisoned for a serious offence of violence, the very program for which Mr Debono was being assessed supposed that he had a propensity for violence which needed to be treated . Ms Hadley said that psychologists in an institution such as Marngoneet operated in close physical proximity to the prisoners whom they assessed. This is in contrast to people such as the members and officers of the Adult Parole Board. This proximity would I suppose be essential to the proper discharge of the psychologists' duties. Where a person with a proven propensity for violence receives an assessment which is in some way negative or in that prisoner's view insufficiently positive for his purposes in seeking parole, there would necessarily be an element of recrimination which either within the institutional environment or after the prisoner's release might expose the relevant clinician to danger of physical violence. In the present case it seems Mr Debono blames the author or authors of these reports at least partly for his spending a further 14 months imprisoned rather than being paroled. If there were full transparency in these reports I believe the willingness of clinicians to give candid reports would be impaired and the public interest in having proper assessments of prisoners would thereby be sacrificed. Generally in claims for exemption under Section 30(1) I have favoured the view that transparency and accountability would be likely to enhance the quality of reports forming part of internal working documents rather than to prejudice that quality. The special circumstances attending prisons and particularly prisoners incarcerated for offences of violence renders the situation here different from the one which exists generally across Government administration. I also accept that release may give prisoners additional insights into clinicians' methods which they could employ to subvert the effectiveness of assessments.
The exemption claimed under Section 30(1) is therefore made out.
The Section 35(1)(b) exemption is claimed with respect to a number of items of information obtained from named third parties and recorded in the document. Since the issues reported upon relate to the physical and psychological condition of Mr Debono I accept that the communications are by their nature made in confidence. To make out the Section 35(1)(b) exemption it is not sufficient to show that in the present case the third party informants would be less candid or forthcoming or that they would be inhibited from reporting frankly. It is necessary to show that information of this type would not in fact be forthcoming. Ryder v Booth [1985] VicRp 86; [1985] VR 869, 872 per Young CJ. In my view the same consideration relating to matters pertaining to prisoners incarcerated for offences of violence render it reasonable to conclude that third party informants would not be likely to be forthcoming with such information in future if these reports were to be released. The third parties as I would understand it would not have the same duty to report as the clinician or clinicians who wrote the documents here in dispute so it would not be a matter merely of reporting less candidly, the reports would not I think be likely to come at all. Even if names of third party informants were removed the subjects of reports such as the present could infer the names based on circumstance.
It seems from the Court of Appeal's assessment in Osland's case that it is necessary to consider the operation of the public interest override in Section 50(4) even where the exemption or exemptions in questions upheld already have within them their own public interest criterion. This approach of the Court with which I respectfully agree is inconsistent with the approach adopted in a number of Tribunal decisions and at least one Supreme Court judgment in the past.
Considering whether any public interest under Section 50(4) should override the exemptions which I believe have been made out, I conclude that none does. As previously explained there is a very strong interest in someone in the position of an incarcerated prisoner being able to confront whatever adverse material is put against him and which may prejudice his position in the prison population, set back his prospects of a parole and so forth. Nevertheless, accepting the existence of that strong public interest in my view it is overridden by the other public interest factors which I have described above.
The respondent's determination should be affirmed.

Debono v Department of Justice - FOI Officer

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Judgment (25 paragraphs)

Debono v Department of Justice - FOI Officer (General) [2008] VCAT 1791 (27 August 2008)

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