Victorian Civil and Administrative Tribunal|2002-12-20

Knight v CORE [2002] VCAT 1769 (20 December 2002)

Freedom of Information Act 1982, Section 25A, Section 33, New sub-section 33(2A), release of prison rosters.

RESPONDENT: CORE - The Public Correctional Enterprise

1. Mr Knight is a prisoner at HM Prison Barwon. In a letter dated 16 December 2001 addressed to the information and privacy manager in the Department of Justice he made a request under the Freedom of Information Act 1982 (the FOI Act) for:

Full access to the daily staff rosters for HM Prison Barwon since the 1st May 2001.

He then outlined in the letter the periods within which he had been held at two

units in that prison during the time identified in his request and said:

As part of my request I seek full access to the unit staff rosters for the above units for the designated period.

2. The Department and on internal review, CORE, refused to process the request under section 25A(5) of the FOI Act. The Respondent's refusal to process the request cited section 33 of the FOI Act as the basis for exemption of staff rosters from release.

"An agency or Minister may refuse to grant access to the documents in accordance with the request without having identified any or all of the documents to which the request relates and without specifying, in respect of each document, the provision or provisions of this Act under which that document is claimed to be an exempt document if -

(a) it is apparent from the nature of the documents as described in the request that all of the documents to which the request is expressed to relate are exempt documents; and

(i) it is apparent from the nature of the documents as so described that no obligation would arise under section 25 in relation to any of those documents to grant access to an edited copy of the document; or

(ii) it is apparent, from the request or as a result of consultation by the agency or Minister with the person making the request, that the person would not wish to have access to an edited copy of the document."

4. In effect, for section 25A(5) to apply, two requirements must be met: first it must be apparent from the nature of the documents as described that they are exempt and second it must be apparent either from the nature of the documents that no obligation to grant access to an edited copy arises or from the request that the Applicant would not wish to have access to an edited copy.

5. The Respondent claims that staff rosters for the prison are exempt by their nature under section 33 of the FOI Act which relevantly provides:

(1) A document is an exempt document of 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 that person or discloses their address or location; or

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

6. For a document to be exempt under section 33 it must relate to someone's personal affairs and its disclosure must involve unreasonable disclosure of that information. As to whether the information on the staff roster relates to personal affairs, section 33(9) makes it clear that information which identifies a person relates to his or her personal affairs. Here, the names of staff on the roster would identify those staff. A number of cases decided before the insertion of section 33(9) found that the names of staff on rosters were information relating to the personal affairs of those staff. For example, Re Cremmen and Frankston Hospital (1989) 4 VAR 197, in relation to nursing and general staff. Section 33(9) puts this beyond doubt. Therefore I accept the Respondent's submission that the rosters, in containing names of staff rostered to work contain information in relation to their personal affairs.

7. I note also that the statement provided in evidence for the Respondent by Mr Johns (who is the General manager Operational Review and Inspection in the Operational Review Unit of CORE) included a mock copy of a blank page in the Barwon Prison roster known as the staff daily list. The headings of that list include the word "changes". Mr Johns said that this column is used to record changes between officers who might swap times or dates. This is also obviously information which would identify individuals and is therefore personal information.

8. The second requirement to be met if section 33 is to be found to exempt a document is that disclosure of the information relating to personal affairs would be unreasonable. The Applicant submitted that disclosure of this information to him would not be unreasonable since from his everyday observations he already knows this personal affairs information. He referred to Mazurek v Russell (unreported County Court of Victoria, Hassett J, 21 November 1984) to support this contention that disclosure of information already known to him is not exempt under section 33. However while he obtained in cross examination of Mr Johns evidence that a prisoner might obtain much of this information by his own observations, he did not prove that all of the personal affairs information contained in the staff rosters he seeks was already known to him. The re-examination of Mr Johns showed that no one prisoner would by observation alone be able to identify the names and ranks of all staff and officers working in the prison.

9. The Applicant asked Mr Johns about various publications which include the names of prison officers and staff. Mr Johns answers showed identifying information about these persons is published from to time; it did not show that all staff identities are public. Nor did it show that staff work arrangements are public knowledge.

10. In any case, reasonableness must be considered from the view-point of disclosure to the world at large. See Re Trainer and Melbourne Metropolitan Board of Works 2 VAR 358 at 365 where Ms Preuss of this Tribunal said "in considering the test of unreasonableness one must not consider merely the disclosure of the documents to a particular applicant. Reasonableness must be considered as if disclosure was to the world at large". I agree. Once a document has been found not to be exempt from release to one applicant it is hard to imagine how it could be exempt from release to another, so reasonableness must be considered as if release of the document were to the world at large, not to this particular Applicant however much of it he already knows.

11. There are a number of other factors to consider in relation to unreasonableness. As the Respondent submitted, the classic statement of these factors can be found in Re Page and Metropolitan Transit Authority (1988) 2 VAR 243 at 245 - 246;

"[the question of] whether disclosure of ... information would be unreasonable ...requires a balancing of interest; the right to personal privacy of an individual whose personal affairs may be unreasonable disclosed by granting access to the information and the object of the Act to extend as far as possible the right of the community to access to information in the possession of the government or agencies ...More particularly, this balancing of interests requires a consideration of all the circumstances, including the interest that the Applicant has in the information in question, the nature of the information that would be disclosed, the circumstances in which the information was obtained, 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. It is apparent that the purpose of section 33(1) of the Act is to prevent the unreasonable invasion of the privacy of third parties."

12. This proposition was not really disputed by the Applicant's submission, although his statement of public interest grounds refers to only one side of the equation, namely the right of the community to access to information in the possession of the government or agencies.

13. One of the relevant factors is the Applicant's interest in the information in question. In his request the Applicant stated that he seeks access to the prison rosters -

"... In order to complete my personal records to assist me in formulating official complaints to the Correctional Services Commissioner and the Ombudsman, and to aid me in preparing for a number of legal matters."

14. In relation to the Applicant's possible complaints, I accept the Respondent's submission that responsible bodies could be expected to enquire into the names of staff if this was relevant to a complaint. Also, in relation to any civil proceedings initiated by the Applicant, he has the opportunity to subpoena relevant documents should such proceedings eventuate.

15. I agree with the Respondent's submissions that the Applicant's interest in the documents is a private and personal one. There was no evidence that any public interest would be served by release of the rosters to the Applicant. There is a public interest simply in making information about the conduct of government agencies freely available, but where the information relates to the personal affairs of others section 33 requires that general public interest to be weighed against the individual's rights to have information about them remain outside the public sphere and a decision must be made taking all the circumstances into account.

16. Other relevant factors referred to in Re Page include the circumstances in which information was obtained and the nature of the information. The information includes the name, rank and serial number of staff members. It is used for the information of staff only, according to Mr Johns' evidence. Since release of this information would be release to the world at large, release could disclose to the world at large information which indicates the patterns of staffing levels and shift changes at the prison, as Mr Johns' evidence, which I accept, attests. This could as he says jeopardise the security of the prison and more to the point in considering a possible exemption under section 33, it could jeopardise the safety of prison staff or put their safety at risk of being jeopardised. Looked at in this light, the nature of the information indicates that its release would be unreasonable.

17. Another factor to be considered is the likelihood of information being information that the person concerned would not wish to have disclosed without consent. Given what I have already said about the nature of the information in question it would be, as the Respondent submitted, reasonable to expect that the staff members would not wish the rosters to be known to the public or to the prison population. I also accept Mr John's evidence that such information found in the possession of a prisoner would be seized as dangerous. It is therefore unlikely that the staff members who would see the information as dangerous would want it released to a prisoner.

18. Section 33(2)A is also relevant. It requires the decision maker in deciding whether disclosure would be unreasonable to take into account whether the disclosure would or would be reasonably likely to endanger the life or physical safety of any person. The Respondent submitted that this provision should be interpreted broadly. I agree.

19. Factors to be considered in deciding whether section 33(2A is relevant here include the Applicant's known violent history, and the lack of a commendable motive for wanting the information and therefore the possibility that it would be used for a mischievous purpose. I accept Mr John's evidence that the rosters could reveal patterns of staffing to the world at large. This brings section 33(2A) in to the equation so that these factors weigh in favour of finding disclosure to be unreasonable. Taking all these factors into account, I find the rosters to be exempt under section 33, by their nature.

20. The Respondent also submitted that the secrecy provision in section 38 of the FOI Act applies. It provides:

"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."

21. Section 30(2) of the Corrections Act 1986 provides:

"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."

22. Section 30(1) of the Corrections Act defines "confidential information" as meaning a number of kinds of information including, relevantly:

"Information concerning the management of, or the operation of the security measures in, or in relation to, a prison; ..."

23. Section 30(2) of the Corrections Act 1986 has been held by the Tribunal to be an enactment covered by section 38 of the FOI Act; for example, Deputy President Macnamara was of that view in re Brygel and Department of Justice (unreported, AAT 17 July 1996).

"the roster is only intended to be used for the management and good order of the prison" and

"as part of proper prison security, the roster is not made available to other than staff members."

25. These statements indicate that the staff rosters concern the management of the prison and its security measures. Such information is confidential under section 30(1)(f) of the Corrections Act 1986 and so prohibited from disclosure by section 30(2) of that Act. The description of the roster and Mr Johns evidence both show that it is a document to which this secrecy provision recognised by section 38 of the FOI Act applies. Had the Applicant's request been processed, the rosters would have been exempt for disclosure on this ground.

26. The letter from the Department of Justice Information and Privacy Manager dated 5 January 2002 which refused access pursuant to section 25A(5) did not mention section 38. I agree that the section 33 is sufficient to exempt the documents. However, the fact that section 38 also applies is relevant because it bolsters the considerations of physical safety in applying section 33(2A). If information is exempt from release because it affects prison management and security, then it is also likely to be exempt because its release may endanger the physical safety of prison staff.

27. The second requirement of section 25A(5) is that either it is apparent from the nature of the documents that no obligation to provide an edited copy arises under section 25 or it is apparent from the request that the Applicant does not wish an edited copy.

28. The Respondent argued that the request makes it apparent that the Applicant did not want an edited copy of the roster because it seeks "full access to the daily staff rosters ...." This is not obvious. The request, as set out above, goes on to seek "as part of my request full access to the unit staff rosters for the above units for the designated period" referring to the different periods when the Applicant was held in different units. This seems to indicate that the Applicant would accept staff rosters edited to show only staffing for the units where he was held at the time he was held there. The Applicant reminded the Tribunal of this specification at the hearing. It is possible the Applicant would have accepted a version edited in this way. However, that would still leave in the document personal affairs information about the staff in those units at the relevant times.

29. Would it then still be unreasonable to release an edited version of the rosters which discloses that personal affairs information about staff in a particular unit over a short period or even for one day? Mr Johns said in evidence "disclosing information about individual prison officers may considerably increase the risk of endangerment of those officers. The very possession of knowledge concerning the movements of prison officers outlining specific times and locations potentially exposes each officer to a higher element of risk. The safety of the prison officers could potentially extend to outside the prison boundaries, by highlighting to the world at large staff shifts and change overs." I accept Mr Johns' evidence as indicating that the information sought would be reasonably likely to endanger the physical safety of prison officers even where only a period as short as one day is concerned.

30. Logically, the considerations of unreasonableness in relation to all rosters, as set out above, also apply to the question of whether it would be unreasonable to release a roster for one day.

31. Accordingly it was appropriate for the Respondent to conclude that editing the documents to show only some staff rosters would still leave a document which involved unreasonable disclosure of personal affairs information . So even if the Respondent had read the Applicant's request as indicating willingness to accept rosters for only some days and units, the rosters thus edited would still have been exempt under section 33.

32. The Applicant's request made it clear that editing out personal affairs information (ie. names and other identifying information about officers and staff) would not have resulted in a document to which he would wish to have access.

33. The Applicant also made submissions about the application of section 50(4) of the FOI Act. That sub-section allows the Tribunal to grant access to a document on review, "not being a document referred to in section 33 ... where the Tribunal is of the opinion that the public interests requires that access ... should be granted". I have not considered these submissions because I have found that the documents are exempt pursuant to section 33, so this "override" is not available.

34. For the above reasons I affirm the Respondent's determination.

Information Act 1982

Knight v CORE [2002] VCAT 1769

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Judgment (56 paragraphs)

Knight v CORE [2002] VCAT 1769 (20 December 2002)

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Legislation Cited (1)