A viewing of the document makes it clear that it comprises security camera CCTV footage from within the prison and, more particularly, from within an observation cell which has prisoner welfare and security as a primary objective. It also shows a medical emergency and the procedures undertaken in response to that emergency.

1. The applicant wishes to obtain the footage to assist him to obtain legal representation to commence civil proceedings.
2. The decision that the applicant seeks to review was made by the respondent's Assistant Manager - Freedom of Information on 14 December 2010. That decision upheld an earlier decision made by an officer of the respondent to deny access in full to the requested document.
3. The applicant presented his case via video link from prison
4. I have viewed the footage, which was provided to the Tribunal in accordance with its direction.
5. On 12 April 2011, the respondent wrote to the applicant stating that it understood that he was seeking the footage for the purpose of obtaining legal opinions and assistance and offering an ongoing arrangement to allow his legal representatives to view it.
6. That written offer apparently confirmed a previous, similar offer because on 7 March 2011, solicitors from the Prisoners' Legal Service Victoria and from Victorian Legal Aid viewed the footage, with the authorisation of Corrections Victoria. Thereafter on 23 March 2011[1] a solicitor from the Brimbank Melton Community Legal Centre wrote to the respondent stating that it had elected not to represent Mr Horrocks, in part, at least, because of lack of staff and funding. That letter also contained a number of factual allegations and legal submissions. Because Mr Horrocks represented himself at the hearing it is appropriate to set out significant parts of this six page letter. It included the following statements:

We had invited a member of legal aid to attend to inspect the footage to determine whether such an incident had merit and fulfills their grants criteria for public interest cases as we do not have expertise in this area.

We felt it necessary to take advantage of this opportunity to inspect documents with VLA, as most pro bono firms require a similar merit assessment to ascertain whether assistance will be provided. This is largely due to the number and range of complaints, lack of expertise in the area of corrections, lack of equality in resources between parties, and issues as to credibility, character, and veracity of complaints made.

The footage was reviewed and notes were made regarding whether an assault or other unlawful action had taken place. The record of events were [are] not inconsistent with the Ombudsman['s] finding as to assault; however, it appears the welfare obligations were either not considered or within the scope of the Ombudsman jurisdiction to make such a determination.

After viewing the CCTV footage in issue, PLSV was not able to determine any grounds for refusal of the release of the documents, save for the entity (sic) of the parties. It does not prejudice the administration of justice, nor was Mr Horrocks in the course of breaching the law at the time of the transfer. While the procedure may be part of administering the law, the content of the document cannot easily [be] referenced to transfer procedures adopted by private prisons.

Discernable from the footage, Mr Horrocks does not, in our opinion appear to be intentionally assaulted, rather welfare principles enunciated under section 20(2) of the Corrections Act 1986 may rend a be (sic) viable civil action, to acknowledge his injury.

At the exclusion of our services, if Mr Horrocks is not able to obtain this footage via FOI, Mr Horrocks is beholden to his custodian for an explanation. Such circumstances are proximate to the core definition of vulnerability. His understanding of what had occurred to him whilst unconscious, let alone his ability to [obtain] requisite legal assistance, would be effectively terminated save for this intervention.

While the footage tends to demonstrate that the action is not malicious, the injury Mr Horrocks has suffered appears gravely disproportionate to proper Occupational Health and Safety handling methods.

Further to this, Mr Horrocks does not appear hostile or agitated at any time during the two conversations that took place prior to eight staff entering the room.

From the footage it is difficult to determine whether or not Mr Horrocks loses consciousness. Nonetheless, given the gravity of the injury, Mr Horrocks appears to demonstrate no sign of this injury, but is visibly responded to with haste by staff present.

For this reason alone, we believe that the release of the footage and access footage by people incarcerated is seminal to welfare of prisoners, and the accountability of Correction Officers.

Whilst not enshrined in legislation, the fact that Mr Horrocks will now leave prison in a lesser state of physical health than that which he entered begs questions of public interest as to the quality of care provided to incarcerated persons; both economically, as with those that contract blood borne virus in prison; and socially, as with those members spending long hours in management units under separation orders, some of whom are profoundly affected by mental illness.

It appears evident that Mr Horrocks made no struggle against those who restrained him, and how this was injury was sustain (sic) is prima facie evidence of a breach of duty of care.

In summary, Mr Horrocks injury is not insignificant. He is impecunious, and save for the grant of funds to our service, he would be faced with the challenge of obtaining assistance based purely on his medical records.

The CCTV footage is seminal to the issue of his welfare. The possibility that he can lose consciousness and then regain consciousness with such an injury must be very close heart (sic) of what it means to be vulnerable.

Discovery is a complex process, and persons such as Mr Horrock's enquiry and even conditional release of the CCTV footage should be release[d] conditionally, simply to assist him to obtain legal opinions and assistance more easily.

1. Section 13 of the Act gives every person a legally enforceable right to obtain access in accordance with the Freedom of Information Act (the Act) to documents of an agency or official documents of a Minister, in both cases other than exempt documents.
2. Section 23 provides for the form in which access to a document may be given. Section 25 provides for the deletion of exempt matter or irrelevant material from a document. It states:

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document or that to grant the request would disclose information that would reasonably be regarded as irrelevant to the request;

(b) it is practicable for the agency or Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document or a document that would not disclose such information (as the case requires); and

(c) it appears from the request, or the applicant subsequently indicates, that the applicant would wish to have access to such a copy-

the agency or Minister shall grant access to such a copy of the document.

1. The respondent decided not to grant access to an edited copy of the footage because it was not feasible to edit the footage by deleting the information relating to the personal affairs of others and it appeared from the terms of the request that editing the document would not result in a document to which the applicant would wish to have access.
2. The applicant provided a 'timetable of events' occurring between 13 March 2010 and 1 April 2010. He stated that on 13 March 2010, he was attacked by an inmate at Fulham Prison. He was taken to Sale Health Service for a dislocated finger and several cuts and bruises. It records that he was relocated to Fulham prison medical unit and then moved to another unit. He then experienced severe stomach cramping and pain and was transported to Sale Health Service. He returned to Fulham medical unit where he slipped on the wet cell floor and damaged his back and right knee. The applicant's timetable continues:

"16th March - moved to punishment/isolation unit where I became very upset and depressive as I believed I was being punished as the victim in this altercation.

Later, Fulham Prison Director ...visits my cell and assures me that I was not to be transferred to the M.A.P. and this is confirmed by the head psyche nurse...

18th March 2010: several CERT security team officers enter cell and throw me off the bed onto the concrete floor and one expertly breaks my right arm (snapped humorous bone) and I faint.

Subsequently escorted to Sale Health Service as I came 'to' in Ambulance not knowing where I was, but experiencing great pain.

After unsuccessful half plastering of arm, transported to M.A.P. and placed in the Acute Assessment Unit (Isolation).

[the applicant then stated that he fell into deep psychic delusions which were sorted out after consultation with a P.P.P. psychiatrist]

1st April - transferred to St. Vincent's Hospital to fix right arm properly this time by fitting a plate and screws to the humorous bone.

( 21 weeks of initial recuperation at P.P.P. followed)"

1. The applicant described his injuries as including severe loss of right arm strength, permanent loss of feeling in half of his right hand, disfigurement and mental/depressive anguish.
2. The respondent relied on the provisions of ss 31, 33 and 38 of the Act to argue that the DVD footage was an exempt document.

1. Mr Horrocks gave evidence that he wished to obtain the footage to assist him in finding a lawyer, who would act for him in a civil claim in respect of his injuries on a pro bono basis. He argued that there was nothing in the footage for the respondent to hide.
2. The applicant informed the Tribunal that the CCTV footage does not show anything relevant to the assault as one of the Fulham prison CERT security officers "accidentally" blocked the camera when his arm was broken. As the applicant has not seen the footage his statement cannot be taken as decisive on this point.
3. The applicant gave evidence that he had written to the Office of Police Integrity about the incident and they had referred the matter to the Ombudsman.

1. The respondent informed the Tribunal that the Ombudsman made no adverse comment about it officers' actions and that there was nothing to respond to. The Tribunal was not provided with a copy of the Ombudsman's Report. I did not consider that the Tribunal should request the Ombudsman to provide a copy of it. The applicant appeared to accept that the Ombudsman had made no adverse comment about the officers involved in the incident.

1. The respondent called evidence from Mr D Taylor, the Acting Assistant Director of Custodial Services, Corrections Victoria who was on secondment from the position of General Manager of the Melbourne Assessment Prison, to which he was appointed in January 2009. He has been employed in corrections and prisons in New Zealand and Victoria for 25 years. He is responsible for overseeing all notifiable incidents reported in Victorian public prisons, and for performing a consultative and leadership role for all General Managers of Victorian prisons.
2. In his written witness statement, Mr Taylor stated:

I have viewed the footage which comprises the exempt document sought by the applicant. From that footage and from discussions with relevant officers of the Department and prison. I have become aware that a notifiable incident involving the applicant occurred at Fulham Prison, Sale on 18 March 2010 during which the applicant sustained an injury in an observation cell. That injury required hospitalisation.

1. Mr Taylor's evidence was that the footage was taken from a security/observation camera within the cell in which the applicant was located. The footage showed the implementation and application of procedures put in place when:

(b) managing and dealing with a medical emergency in so far as it may apply to a prisoner.

The footage shows a number of officers and staff , including medical and nursing officers and corrections staff. It also shows in detail the layout and environment of the management/observation cells.

1. Mr Taylor gave three reasons why the footage should not be released.
2. First, it would disclose processes and procedures used to deal with difficult prisoners and to manage medical emergencies. This could be of use to a person wishing to plan a disturbance.
3. Second, the footage could enable a person to develop ways to combat the environment in which they are placed and/or observation cell by gaining knowledge of the processes and procedures used and an understanding of how staff are likely to respond to a particular incident. The footage would provide a permanent record and point of reference from the prison's own records. That was quite different from a person's own experience of being present in a cell during an incident or hearing about it informally.
4. Third, the footage contains images of prison staff, including medical and nursing staff. Disclosure of the footage had the potential to enable them to be identified. Staff take significant measures to maintain the confidentiality of their identities because of the risks associated with that knowledge being in the public domain. The footage did not have audio attached and an uninformed viewer could draw wrong conclusions about the actions of certain staff depicted in it. Release of the footage would cause identifiable individuals significant stress and anxiety given the absence of control on the use that could be made of it.
5. In oral evidence Mr Taylor stated that the footage showed techniques used to remove prisoners from cells. It showed physical holds, physical demeanour tactics and other techniques that might be applied. This information was not public knowledge.
6. The respondent contended that there was no evidence contradicting Mr Taylor's evidence.

SECTION 38

1. Section 38 provides that:

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. Section 38 provides three requirements for a document to be exempt:

(b) that the enactment applies specifically to information of a kind contained in the document;

(c) that the enactment prohibits persons referred to in the enactment from disclosing information of that kind either absolutely or subject to exceptions or qualifications.

1. The respondent submitted that s 30(2) of the Corrections Act 1986 is an enactment of the type referred to in s 38. Section 30 is headed 'Secrecy'. Section 30(2) states:

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

1. Section 30(2) is subject to a number of exceptions which are contained in s 30(3), none of which appear relevant to this application.
2. The term 'confidential information' is defined in s 30(1) of the Corrections Act and includes:

(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.

Information is defined in s 30 (1) to include 'photographs, fingerprints, samples and results of tests.'

1. In Secretary to the Department of Justice v Western Suburbs Legal Service Inc[2] Beach J stated:

Section 38 does not provide that the enactment must prohibit the person in possession of the document or the person to whom the document was provided or the person to whom the document was addressed from disclosing the relevant information: it only provides that the enactment must prohibit persons referred to in the enactment from such disclosures.[3]

1. These provisions of the Corrections Act were recently considered by the Tribunal in Darebin Community Legal Centre v Department of Justice.[4] The Tribunal accepted that the term 'emergency' refers to a situation where 'a sudden serious and dangerous event or situation occurs which needs action to deal with it'[5].
2. The respondent contended that the words of s 30(1)(e) of the Corrections Act were broad, particularly the words 'concerning' and 'in relation to'.
3. In the case of s 30(1)(f), the respondent submitted that it was sufficient that the document contained any information concerning the management of, or security measures in, a prison. The concept of the management of prisons was broad when other provisions of the Corrections Act were brought into account. The terms 'security' and 'measure' were wide. The respondent relied on the Tribunal's decision in Western Suburbs Legal Service Inc v Department of Justice.[6]
4. The applicant disputed that s 30(1)(e) or (f) of the Corrections Act applied to the footage or, that it was confidential.

Consideration of submissions about s 38

1. In Knight v Corrections Victoria[7] Bell J stated:

In the tribunal's jurisprudence, s 30(2) with s 30(1)) of the Corrections Act (as amended in 1991) is a secrecy enactment within s 38 of the Freedom of Information Act. I respectfully agree. The specific terms of the definition of 'confidential' in s 30(1)(a)-(i) of the Corrections Act, in the form introduced in the 1991 amendments, answer the description of an 'enactment applying specifically to information of a kind contained in the document' as specified in s 38 of the Freedom of Information Act.[8]

1. One of the Tribunal decisions referred to by Bell J was Rogers v Commissioner of Police (General).[9] In that case, a prisoner sought access to documents, including DVD security footage of an incident in prison in which he alleged that he was assaulted. The DVD contained CCTV footage of the applicant leaving and entering his cell and the applicant and prison staff moving and interacting with each other and various objects. The Tribunal decided that the DVD footage was confidential information within s 30(1)(f) of the Corrections Act and therefore attracted the exemption in s 38. The Tribunal accepted evidence that the CCTV footage would reveal security and operational matters, in particular where the prison officers may be standing at a time or when a particular event happened.
2. The Tribunal also decided that the DVD attracted the exemption contained in s 31(1)(d) and (e) of the Act. The public interest override did not require release of the DVD.
3. The DVD footage that the applicant seeks shows measures taken to remove a prisoner from a cell and to deal with the emergency situation that resulted from the injury that the prisoner suffered during that removal. Those circumstances fall within the description of an 'emergency' within s 30 (1)(e) of the Corrections Act. Video footage can demonstrate or reveal information and plans. It does so in this case. The footage reveals information concerning the manner in which prison officers, including medical staff, react in an emergency.
4. For similar reasons, the footage reveals information of the operation of security measures in or in relation to a prison. The footage therefore is confidential information within the meaning of s 30(1)(f) of the Corrections Act.

Conclusion about s 38

1. The release of the DVD would therefore be the release of confidential information in contravention of s 30 of the Corrections Act. The DVD is therefore an exempt document within s 38 of the Freedom of Information Act.

SECTION 33

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

(2A) An agency or Minister in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

Information relating to the personal affairs of any person includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined.

1. In order for s 33 to apply the disclosure of the document must disclose information relating to the personal affairs of a person.
2. Section 53A required the respondent to give notice to the persons whose personal affairs it considers would be unreasonably disclosed by the release of the information contained in the document. Those persons had a right to intervene in the review. In this case a number of persons who received notifications under s 53A, sent notice in writing to the respondent of their opposition to the release of the information.
3. The disclosure of the CCTV footage would disclose the appearance of the persons that appear in it. It thereby would disclose a part of their identity. That is information relating to their personal affairs. Therefore, disclosure of the CCTV footage would disclose information relating to the personal affairs of the persons who appear in it.
4. The second requirement in order for s 33 to apply is that the disclosure of the document would be an unreasonable disclosure of information relating to the personal affairs of any person.
5. The Court of Appeal in Victoria Police v Marke[10] considered whether, in determining whether this second requirement of s 33 was satisfied, it was permissible to take into account that the disclosure of the document under the Act would be disclosure to the world. That phrase is used to convey the fact that upon release of the document, there is no restriction on who may receive it. Two members of the Court, Weinberg JA and Pagone AJA, decided that the second requirement was not to be approached on the basis that the disclosure would necessarily be disclosure to all the world. However, the Tribunal was bound to consider the extent of the likely dissemination of the document.
6. Maxwell P considered that such an approach was not permissible and stated that the concern of s 33(1) was with 'disclosure under this Act', that is with disclosure to the applicant and with what that disclosure involved.[11]
7. Weinberg JA stated:

Any agency faced with such a request is entitled to assume that once a document is made available, it has the potential to be disseminated widely and indeed that may happen. The agency is entitled to approach the balancing exercise required under s 33(1) with that assumption firmly in place. That assumption will hold true in the vast majority of cases. Most applications under the Act are made by those who do seek to disseminate any information obtained as widely as possible. They may be journalists, they may be politicians, or they may be members of interest groups with a particular agenda in mind. Not every case, however, will fall into this description.[12]

The loss of control of information in a document, potentially to the world at large, is an important consideration for any decision-maker asked to balance interests in application of s 33(1) of the Act.

In some cases, and this may not be one of them, the probable lack of any dissemination of a document beyond the applicant may well be the determinative factor in a decision to release the document to the applicant. To undertake the balancing process required by s 33(1) of the Act upon the assumption that upon disclosure it will be known to all the world is, in my view, to proceed incorrectly.[13]

1. There was no evidence that the applicant intended to disseminate the CCTV footage beyond lawyers, initially for the purposes of gaining pro bono representation and then, if successful in that endeavour, to conduct a civil proceeding to attempt to obtain damages for personal injury.
2. The respondent submitted that on the evidence, that the document would be exempt under s 33(1). The evidence included Mr Taylor's evidence and the responses received under s 53A.
3. The applicant submitted that the letters submitted pursuant to s 53A were robotic, by which he meant that they were repetitive and not the result of an independent consideration of the issues.

1. The applicant's right to issue civil proceedings is of particular importance, regardless of whether such litigation will succeed.
2. However, it is necessary to consider both the interests of the applicant and the legitimate rights of persons whose privacy may be invaded, or in the language of s 33, whose personal affairs may be unreasonably disclosed, by the disclosure of the footage.
3. Relevant interests that are to be balanced in that consideration were identified in Page v Metropolitan Transport Authority.[14]They include the right to personal privacy of an individual whose personal affairs may be unreasonably disclosed and the object of the Act, to extend as far as possible the right of the community to access the information in the possession of the Government or Agencies. More particularly, relevant circumstances include: the interest that the applicant has in the information, the nature of the information, the circumstances in which the information was obtained, including circumstances of confidentiality, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent and whether the information has any current relevance.
4. His Honour Judge Jones stated in Page's Case that it was apparent that the purpose of s 33(1) of the Act was to prevent the unreasonable invasion of privacy of third parties.[15]
5. The responses received following the notifications under s 53A should be taken into account. All of the persons responding opposed the release of the CCTV footage. The general tenor of the responses appears from the following, which was one of the longer responses:

In response to the notification about a proceeding before VCAT commenced by Jonathan Horrocks to gain access to CCTV footage which contains information relating to my personal affairs, namely that I am identifiable in the footage I would like to respond that due to the sensitive nature of my employment as a correctional officer ... within this company at this time I do not want my identity and/or personal information released because doing so may place me at personal risk within this employment environment and if this footage was to be released to this individual the content may be released into the public domain which may place me at risk outside my place of employment.

1. The concerns of prison officers and medical officers, working in prisons, not to have their image made available in a permanent form to a prisoner, or any other person to whom he may provide it, are significant matters to take into account in determining whether the exemption in s 33 applies. However, they are not conclusive. In the nature of prison staff's work, their accountability for their actions may, on occasions, require that their identity be disclosed.
2. The Freedom of Information Act is often used by a person for the furtherance of civil proceedings: see per Brooking J in Sobh v Police Force of Victoria.[16]
3. There was no material providing any specific basis for concluding that there was a particular reason for prison officers fearing physical retribution from the applicant, or any one else following the release of the information. Nor that disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person. Those comments are not intended to downplay the difficulties and apprehensions that are likely to be present in the lives of prison officers. It is also the case that prison officers can have legitimate concerns about their safety based on their experience of prison behaviour. I accept Mr Taylor's evidence in that regard.
4. The release of the footage would not reveal the names, addresses or locations of the prison staff shown in it. The applicant has a legitimate interest in the footage in view of the fact that it records events in which he apparently suffered a significant injury. The footage is likely to assist the applicant's attempts to commence civil proceedings.
5. However the release of the DVD would make available without restriction a permanent record of the image and identity of prison officers. If, as is discussed below in the consideration of the public interest override, the applicant commences civil litigation he may be able to obtain the DVD on discovery. In that case he will be subject to an undertaking as to the use to which he may put it.

Conclusion about s 33

1. Balancing the matters referred to, the Tribunal concludes that the release of the footage would be an unreasonable disclosure of information relating to the personal affairs of the prison staff shown in it. The DVD is an exempt document under s 33(1) of the Act.

1. There was no specific evidence of the cost of editing or of pixilation of the footage. Section 25 requires that consideration be given to whether it is practicable to grant access to the document with deletions so as to make the copy of the document not exempt or a document that would not disclose information that would reasonably be regarded as irrelevant to the request[17]. There was no material before the Tribunal on which it could be satisfied that access could be granted in accordance with the procedures in s 25. The respondent had decided that it was not feasible to edit the footage.

SECTION 31

1. The third exemption relied on is s 31(1)(a) which provides in relevant parts:

Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to -

(a) prejudice the investigation of a breach or possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance.

1. The respondent claimed that the law, for the purposes of s 31(1)(a), was the Corrections Act as it relates to the administration of the Fulham Correctional Centre. Disclosure of the documents would, or would be reasonably likely to, prejudice the enforcement or proper administration of the law in a particular instance.
2. The phrase in s 31(1)(a) 'would, or would be reasonably likely, to' refers to a chance of an event occurring that is 'fair', 'sufficient' or 'worth noting'.[18]
3. The respondent relied on decisions that the expression 'administration of the law' in s 31(1)(a) embraces the administration or management of prisons and prisoners.
4. In Knight v Corrections Victoria Bell J stated that:

It is clear from the terms of s 31 (1) that its provisions, and especially s 31(1)(a), are capable of applying to documents concerning the administration and management of prisons generally and concerning individual prisoners specifically. The Tribunal has so decided on a number of occasions, including one where it upheld a decision to refuse to give access to a prisoner to information about himself.[19]

74 The respondent submitted that part of the scope of s 31(1)(a) was to guard against a "mosaic effect" where the release of information might confirm what people have suspected.

75 The application of s 31(1)(a) was discussed by the Appeal Division of the Supreme Court in Sobh v Police Force of Victoria[20] in which the appellant succeeded on appeal in obtaining access to the police brief relating to charges which had been laid against him. The respondent unsuccessfully argued that it would always prejudice the proper administration of the criminal law to allow that access.

76 Nathan J stated that the word 'prejudice' was not a term of legal art. It meant to 'impede or derogate from' and in the case of s 31(1)(a) to impede or derogate from the administration of the law.[21]

77 Ashley J considered that the word 'proper' meant 'strictly belonging to applicable; that is in conformity with rule, strict, accurate, exact, correct.' In other words, the legislation requires that there be consideration of prejudice in the context of the status quo, rather than in the context of what ideally should be the case.[22]

1. The respondent accepted that the exemption under s31(1)(a) requires that the release of the documents must be an impediment or derogation from the strict, exact or correct administration of the law in a particular instance. In the present case, the respondent submitted that the disclosure of the footage would impede or derogate from the administration of the corrections system, particularly at Fulham Correctional Centre.

79 The applicant did not accept that s 31 applied, but argued that if it did the DVD should be released under s 50(4).

Consideration of submissions about s 31(1)(a)

1. The footage shows how prison staff react in an emergency circumstance. It may provide advance notice of how those officers will react more generally in other emergency situations. That information is not generally known.

81 That disclosure of the information is reasonably likely to impede the proper administration of the law concerning prison administration at Fulham Correctional Centre.

Conclusion on s 31 (1)(a)

82 The DVD is an exempt document under s 31(1)(a) of the Freedom of Information Act.

83 It is then necessary to consider the operation of the public interest override contained in s 50(4) of the Act in respect of the exemptions contained in s 38 and s 31(1)(a).

84 The question raised by s 50(4) is: does the public interest require release of the footage?

85 In Osland v Secretary to the Department of Justice [No 2][23] French CJ, Gummow and Bell JJ stated:

Having said that, 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 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.[24]

...my intention here is to only obtain the footage of the assault to gain legal representation, however if this is not possible, then I will be presenting public interest grounds as transparency of the correctional treatment of individuals is paramount to a fair society.

87 The applicant relied on the fact that his arm was broken when he was being removed from his cell. He did not agree with the Ombudsman's assessment of the incident.

88 First, he argued that there was a public interest in persons having access to documents which concern them, but which are in the hands of a government agency. Second, he relied on a public interest in the fair and humane treatment of prisoners. Third, he relied on a public interest in persons knowing the precise nature of information upon which a government agency is erroneously or improperly acting. Fourth, the applicant argued that consideration must be given to the ability of an incarcerated person to persuade a lawyer to act for him.

1. The applicant contended that any confidential techniques used by prison officers to deal with prisoners would be obscured in the footage by the bodies of officers.

1. The respondent submitted that the public interest is not identified by purely private interests or matters of personal significance. Questions of transparency in relation to prison officers or accountability of corrections officers are not public interest grounds, but purely private matters.

91 Disclosure of the contents of the DVD would be contrary to the public interest, undermine security in the prison and set a dangerous precedent. There was a high public interest in ensuring that security is maintained in prisons, whether they are privately or publicly operated. Disclosure of the contents of the CCTV footage would affect the proper administration of the prison system.

92 Two conditions have to be satisfied to exercise the public interest override. First, the material before the Tribunal has to be capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. Second, the Tribunal has to actually form the opinion that the public interest requires that access to the documents should be granted.

93 The applicant had not established that the public interest override requires the release of the CCTV footage. There was a clear public interest in preserving the confidentiality of prison security mechanisms.

94 It was important to preserve the confidentiality of the identity of corrections officers.

95 It is not suggested that the applicant will be prevented from commencing civil litigation unless he obtains the footage.

96 The ability of the applicant to commence civil proceedings in respect of the injury to his arm is of considerable importance.

97 In Musso v Department of Justice[25] His Honour Judge Bowman stated:

Where there have been allegations of violence and misconduct by prison officers, and a detailed investigation has been carried out, it seems to me that the public interest requires that access be given to documents relating to both the relevant incident and to the investigation, subject as stated, to the protection of the individuals involved.[26]

98 The validity of that statement has not been affected by the statements concerning s 50(4) contained in Osland's case. However on the material before the Tribunal, there is no evidence of violence and none of misconduct in a strict sense.

99 Matters which, from one perspective, are the applicant's private interests, can also attract the public interest. There is a considerable public interest in ensuring that prisoners, like members of the public, are not injured by persons acting on behalf of the State.

100 I accept that the applicant has encountered difficulties in obtaining a pro bono lawyer to take up his case. The release of the CCTV footage to him is likely to make it easier to obtain that legal representation, than if prospective pro bono lawyers are only able to view the footage pursuant to the arrangement offered by Corrections Victoria. There was little material on which a conclusion could be based as to whether the applicant is likely to obtain pro bono legal representation It was not established that it was a precondition to obtaining that representation that the applicant have the DVD.

101 The fact that the applicant does not have the footage does not prevent him commencing civil proceedings, even without a lawyer. I accept however that this will not be a simple task as he is in prison.

102 If the applicant is able to commence proceedings, the CCTV footage may well have to be produced to him on discovery.[27] Its production would then be subject to the implied undertaking not to use it for any purpose other than the legitimate purposes of the litigation.[28] That is an important consideration.

103 Ordinarily, a plaintiff will commence civil litigation without possessing all the documents that are in the possession of the defendant. The applicant has been given the opportunity of having any solicitors, who may be considering representing him, view the footage.

104 I mention the last matter not to suggest that the respondent's offer to allow prospective solicitors to view the footage is a legitimate form of providing access to documents to which an applicant is otherwise entitled to access under the Freedom of Information Act. Rather, I refer to it as one of a number of considerations of relevance in determining whether the public interest requires the release of the footage. It is relevant to an assessment of the limitations that the applicant will encounter in exercising his right to commence civil proceedings if he does not have access to the footage.

105 The matters relied on by the respondent are of significance. The maintenance of prison security and order are important both to the public and to prisoners.

106 The ability of prison authorities to keep confidential methods used by staff to deal with prisoners in emergency situations is important. An exception to this proposition is likely to be found where the methods involved unlawful conduct, including for example criminal conduct. The footage does not appear to reveal conduct of that character.

107 I accept the evidence of Mr Taylor concerning prison security and the fact that the procedures used to handle emergencies are not known publicly.

108 Having considered the evidence and the submissions, I do not consider that the public interest requires the release of the footage to the applicant.

109 Limited attention was directed in submissions to the application of the rights contained in the Charter of Human Rights and Responsibilities Act 2006 to the present application. The letter from Prisoners Legal Service Victoria on behalf of the applicant referred to a number of human rights. The rights that may be relevant include the right to humane treatment when deprived of liberty: s 22(1) and possibly the right to a fair hearing: s 24(1).

110 In XYZ v The Victoria Police[29] Bell J stated with respect to the human right of freedom of expression:

Although the right to freedom of expression in s 15(2) of the Charter includes a positive right to access government-held documents, and that right is independent of the right to seek access to documents in s 13 of the Freedom of Information Act, it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act. When the government properly processes a request for access to documents under the Freedom of Information Act, it will also be respecting, and acting compatibly with, the applicant's right to freedom of expression under s 15(2) of the Charter. In most cases at least, nothing more or less would be required.

111 That reasoning applies equally to other human rights that might be engaged by the applicant's application for access to the DVD. When the provisions of the Freedom of Information Act are properly applied the respondent, and the Tribunal on review, will be acting in a way that is compatible with the applicant's human rights, recognized by the Charter.

112 The DVD is an exempt document under the provisions of s31(1)(a), s 33 (1) and s 38 of the Freedom of Information Act 1982.

[1] The Prisoners' Legal Service Victoria had written a previous letter to the respondent on 24 November 2010 in support of the applicant's FOI application.

[2] [2009] VSC 68.

[4] [2011] VCAT 2384.

[6] [2010] VCAT 454 at [17].

[7] [2010] VSC 338.

[8] [2010] VSC 338 at [89].

[9] [2009] VCAT 2526.

[10] [2008] VSCA 218; (2008) 23 VR 223.

[14] (1988) 2 VAR 243, 245-246.

[16] [1994] VicRp 2; [1994] 1 VR 41 at 50.

[17] See eg Re Vaughan v Department of Sustainability and Environment (2004) 21VAR 307 especially at [68]-[78].

[18] Department of Agriculture v Binnie [1989] VicRp 73; [1989] VR 836, 842.

[19] [2010] VSC 338 at [73].

[20] [1994] VicRp 2; [1994] 1 VR 41.

[23] [2010] HCA 24; (2010) 241 CLR 320.

[25] [2004] VCAT 1268.

[27] Cf State of Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553.

[28] Harman v Secretary of State for the Home Department [1983] 1 AC 280 and British American Tobacco Australia Services Pty Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571.

[29] [2010] VCAT 255 at [573].