1. In its letter refusing the applicant's request for access to the report and in this tribunal the respondent relied on exemptions in ss 30(1), 31(1)(a), 35 and 38 of the Act.
2. Section 30(1) of the Act provides 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; and

1. The purpose of s 30(1) exemption is to encourage the free and frank exchange of views and ideas between members of the public service, public servants and their Minister, and Ministers during the process of deliberation and policy making.[1]
2. Section 31(a) of the Act provides as follows:

(1) 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. One of the purposes of s 31 is to exempt access to a document if to do so would or, be reasonably likely to, prejudice proper administration of the law in a particular instance. The expression 'administration of the law' where used in the section has been held to embrace the administration of prisons and prisoners and the classification of prisoners in a prison.[2]
2. Section 35 of the Act provides as follows:

35. Documents containing material obtained in confidence

(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-

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(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.

(a) acquired by an agency or a Minister from a business, commercial or financial undertaking; and

(b) that relates to trade secrets or other matters of a business, commercial or financial nature.

1. As the section makes clear, s 35(1)(b) applies where release of a document will impair the ability of an agency to obtain similar information in the future. That is to say, release of the document will result in information of the kind no longer being forthcoming.[3]
2. Section 38 of the Act provides as follows:

38. Documents to which secrecy provisions of enactments apply

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 purpose of s 38 is to permit an agency to deny access to a document when the document is clearly a confidential document because of a competing provision in other legislation. Here, the Respondent contends there is other legislation, namely ss 30(2) and 30(1)(a),(b),(d) and (f) of the Corrections Act 1986 ('the Corrections Act'). Relevantly, those sections provide as follows:

(1) In this section-confidential information means-

(a) information relating to the classification of a prisoner given to the Secretary or to the classification committee established under the Corrections Regulations 1988; or

(b) information given to the Adult Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board for a decision of the Board; or

(d) information relating to the personal affairs of a prisoner; or

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

(2) 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. The respondent bears the onus of making out the exemptions claimed. To discharge this onus it called a body of evidence.

1. The respondent tendered two witness statements from Mr Brendan Money. The first statement was dated 4 March 2011[4] and the second was dated 25 May 2011.[5] Mr Money is the Assistant Commissioner, Offender Management Services of Corrections Victoria. He has held that position since June 2008. He is also the chair of the Major Offender Panel. Mr Money has held a variety of prison officer and management positions within the Victorian prison system dating back to 1985.
2. Mr Money summarised his concerns about release of the report to the applicant in his first witness statement where he said:

4.1 The Tier 2B Report is an important internal working document. Disclosure will undermine its value in this applicant's case (and in others). It contains clinical advice, opinion and recommendations from the Senior Clinician of the Major Offenders Unit, Corrections Victoria to Corrections Victoria. The Senior Clinician, Nicole Sakellaridis is a Corrections Victoria officer and has provided her advice to assist me in making decisions relating to the applicant's rehabilitation, treatment, management and classification.

(a) I am responsible for decisions relating to the applicant's location, placement and the treatment programs in which he is placed. I rely on the Tier 2B Report, as a source of information, to make decisions about the applicant's treatment. This is an important and confidential deliberative process for Corrections Victoria.

(b) Similarly, I am responsible for decisions relating to the applicant's classification. I rely on the Tier 2B Report, as a source of information, to make decisions about the applicant's classification. This is also a major, confidential deliberative process for Corrections Victoria.

4.2 The disclosure is likely to prejudice the applicant's rehabilitation and treatment by compromising the integrity of the treatment process. Providing the Tier 2B Report, which contains the analysis of the applicant's treatment needs, his risks, development goals and current concerns, is akin to providing the applicant with the answers to a complex, subjective risk assessment.

4.3 The disclosure is also likely to prejudice the management of the prison and the applicant.

4.4 Furthermore, the Tier 2B Report contains detailed and sensitive information relating to the personal affairs of the applicant. This information is confidential to the applicant and relates to his family, childhood, prior offending, the offence for which he was incarcerated, opinions on his physical and psychiatric health and opinions on his risk of re-offending. Disclosure will create a real danger of the document being circulated throughout the prison which may be to the detriment of the applicant. I cannot guarantee a prison environment where, upon release to the applicant, other prisoners do not access it. Another consequence of this is that, as Tier 2B assessment reports are not provided to prisoners that dissemination of the format, content and analysis contained in such reports would also provide a 'blueprint' for other prisoners undergoing similar assessments. Again, this would significantly compromise the treatment process of which the Tier 2B assessment forms an important component.

4.5 The Tier 2B Report contains detailed discussion of the applicant's offence and offences while in custody and the associated investigations and findings. The details of this information are confidential. The applicant has access to his plea report, sentencing comments, and a report which records the prison incidents in which he has been involved and those recorded as proven against him.

4.6 The Tier 2B Report may be provided to the Adult Parole Board as part of the information on which it may rely to determine the applicant's prospects for parole. The Tier 2B Report or its contents would not be disclosed to the applicant in a decision of the Board or in its reasons.

1. Mr Money went on in his first witness statement to explain the management of the MOU at Port Phillip Prison. Major offenders are those prisoners who pose a serious risk to the prison system and the community and require an intensive case-management process. Mr Money explained major offenders raise particular prison management concerns. He explained that the Major Offenders Unit was set up as a specialised unit with experience in managing major offenders and the associated risks of major offenders to the good order, security and management of the prison. He said each major offender, including the applicant, presents a unique management challenge for those in charge of the prison. Mr Money said, rehabilitation and management are inter-related functions. He said in his first statement that the assessment of prisoners for treatment, and any treatment which follows, is relevant both to the prisoner's rehabilitation and to the management of that prisoner and of the prison generally. He said assessment of prisoners and major offenders is central to how prisoners like the applicant are managed. Assessment affects how rehabilitation proceeds, what preparation for treatment is provided and what treatment is provided. It also affects placement, classification, security rating and other prisoner management issues. It also assists in daily management issues, by assisting to guide staff in relation to management issues in respect of a prisoner.
2. At paragraph 15 of his first witness statement, Mr Money explains the role of various types of assessment that are carried out by the respondent at various stages of the sentence being undertaken by a prisoner. In this context he explained the role played by the report to which the applicant now seeks access. He said:

15.3 A Tier 2B assessment and report may be undertaken to determine the intensity of intervention required and what factors need to be targeted in the intervention to reduce re-offending. It may also recommend how to prepare a prisoner for treatment readiness. It is useful to facilitate therapeutic and management discussion and decision-making. Thus, it has two functions: rehabilitation and management. The function of the applicant's Tier 2B report also includes providing the Major Offenders Unit with information relevant to decisions on the day-to-day and ongoing management of the applicant and the applicant's rehabilitation and treatment. Such a report has been prepared in respect of Mr Knight, and it is this report he now seeks under FOI.

15.4 The report is confidential, and the prisoner is told in advance it will not be disclosed. It uses a variety of confidential information sources and discloses therapeutic and management methods. That occurred in Mr Knight's case.

1. Mr Money gave evidence specific to the applicant whom he said does not engage or demonstrate insight into his attitude towards treatment, but is confrontational and impatient. He said in his annual reviews the applicant has at times been aggressive, confrontational and resistant to alternative views on his behaviour and questions posed to him that challenge his opinions. Mr Money said the applicant has behaved in a threatening, personal and theatrical manner during annual reviews. He said the applicant is not currently engaged in offence-specific treatment because he has not yet been assessed as ready to commence offence specific or related treatment.
2. Mr Money said that so far as good management of the prison and the welfare of the applicant are concerned it is important the applicant participate in rehabilitation provided to him but he said it is important that any rehabilitation of the applicant be genuine and not be a mere display. Therefore, readiness for treatment, as well as treatment itself, is a priority in the applicant's case. But if the treatment is compromised, so too the value of the assessments of any rehabilitation. Mr Money said were this to occur it would adversely affect prison management and other bodies who may have the need to consider such assessments, such as the Parole Board, as it is relevant to rehabilitation in assessing suitability for parole.
3. In his first witness statement Mr Money addressed what he said would be the problems caused to the respondent by disclosure of the report. He said the report is an essential part of the deliberations of the Major Offender Unit concerning management and rehabilitation of prisoners within it. He said the value of the report to the unit stems from the open and frank information and clinical opinion it contains, and from the proposed methodologies it contains for assessing and assisting offenders for treatment-readiness. The report, he said, is not prepared with a view that it will be released to a prisoner. He said it is taken as a given the report is prepared on a confidential basis and is written without concern that it will be released to a prisoner or into the prison system. He said release of the report would adversely impact on the integrity of treatment programs within the prison.
4. Mr Money said the effect of releasing Tier 2B reports generally would be adverse because:

28.1 Prisoners armed with the information and methodology in the Tier 2B Report will be in a position to mimic a readiness for treatment.

28.2 More generally, prisoners armed with that information could more easily mimic remorse, empathy and the other signs of rehabilitation, once they qualified to enter actual treatment programs. This is undesirable. It means genuinely rehabilitated prisoners would remain under suspicion, since intelligent, manipulative prisoners could mimic rehabilitation successfully. That would be pose a serious threat to the community and would be unjust and dangerous. It would undermine the faith of the MOU in a prisoner's rehabilitation, and severely hamper its decision making processes leading to cautious or suspicious decision-making.

28.3 Prisoners will react adversely to opinions and information in the Report - in some cases, understandably so.

28.4 These dangers all apply acutely in the applicant's case.

1. Mr Money gave evidence of further concerns. He said release of the report will undermine good management of the prison. He said, were the report to be released there would be a significant reduction in the flow of information which clinicians put into such reports. This, he said, would deprive the MOU of an important source of clinical advice and information and would limit the inclusion of sensitive, confidential material, and limit the frank communication of ideas, plans and contingency plans. It would neutralise an important information resource and limit its value and integrity.
2. Mr Money gave evidence that the importance of Tier 2B reports is elevated for high-risk offenders, particularly in the case of the applicant. In such cases these reports assist Mr Money and the MOU make decisions about such things as, the appropriate and tailored case management of a prisoner, the way prison staff should engage with a prisoner, the prisoner's rehabilitation and services to be offered given their suitability for treatment programs and, security risks related to a particular prisoner. He said without such confidential reports being made available, the MOU and those responsible for its operation, risk making incorrect decisions relating to high-risk prisoners.
3. Mr Money conceded that he continues to use the report to make decisions in relation to security and management issues that relate to the applicant. He said in dealing with the applicant within the MOU at Port Phillip Prison he takes account of information within the report relating to the applicant's personality traits, the notoriety of his offending and his behaviour whilst in custody and the complexities of his treatment needs. He said, in making decisions about the applicant, he also has regard to the applicant's individual rehabilitation needs. These include concerns raised by the clinician Ms Sakellarides confidentially about the applicant's rehabilitation.
4. Addressing concerns about the applicant specifically he gave evidence that over the last two years the applicant has become less settled and increasingly hostile towards prison management. He said that the applicant has expressed anger at not being moved from maximum security to moderate or low security. Mr Money expressed the opinion the applicant is having difficulty understanding his treatment readiness and his focus is not on benefiting from the treatment opportunities but on fighting the system.
5. Importantly, Mr Money expressed the view that should the report be released to the applicant he will be harder to manage within prison and he believes this will have a negative impact on the applicant's treatment, readiness and/or rehabilitation prospects.
6. Mr Money gave evidence that a sentence plan is devised for each prisoner soon after the prisoner enters a prison. The sentence plan is reviewed annually. The Tier 2 B report assists in review of the sentence plan. Mr Money gave evidence that provision of a Tier 2B type report to a prisoner would undermine that process. The report has been used in this way in relation to the applicant.
7. Mr Money said the Tier 2B report, if prepared, is usually requested by the Adult Parole Board as part of its assessment of a prisoner for release on parole. He said in such a case the Board does not provide written reasons about its decisions and a Tier 2B report would not be disclosed or quoted in the Board's reasons for any decision relating to parole. He said the value of availability of a Tier 2B Report and, subsequent assessments to the Adult Parole Board would be undermined should an applicant for parole be given access to the Tier 2B Report.
8. Mr Money said that were the report to be released to the applicant there is a risk he would provide it to other prisoners or they could gain access to it. Mr Money could not guarantee an environment in which written information provided to one prisoner is not accessed by other prisoners. Access to the report by other prisoners could adversely affect the applicant's rehabilitation, the rehabilitation of the other prisoners and their management within the prison and the management of prisons generally.
9. Were the report to be released, Mr Money said there was a risk that other high-risk prisoners may use the contents of the report to assist them participating in their own Tier 2B assessment. He said there was a risk other prisoners having access to the report may pick and choose particular components of the report to restate the applicant's profile and their attitude to the applicant and this would undermine the applicant's treatment. He said the report contains information private to the applicant and were the report to be released the applicant's privacy could not be protected by the respondent.

1. Ms Sakellaridis is employed by Corrections Victoria as the Senior Clinician for the Major Offenders Unit. She has worked in this position since 2007. She is the person who prepared the report. The respondent tendered a witness statement for Ms Sakellaridis which went into evidence as exhibit C. In that document Ms Sakellaridis said that a Tier 2B report is an assessment that assists in the determination of a prisoner's offence-specific treatment needs at a particular moment. She said such a report is very much a step in a broader process. She said the Tier 2B report is considered as part of a prisoner's management and rehabilitation. She said the Tier 2B report has a number of functions from a rehabilitation and treatment perspective which she said were to identify a prisoner's treatment needs and the prisoner's suitability for the types of offence-specific programs provided by Corrections Victoria. She also said that such reports were used for identifying clinical issues for a prisoner to address, and may include detailed information around intervention targets. Such a report also makes suggestions and recommendations on the intervention approach for the particular prisoner.
2. In her witness statement Ms Sakellaridis explained the process involved in the preparation of such reports which include explaining the process to the prisoner and obtaining a prisoner's consent to engage in the Tier 2B assessment. This includes seeking the prisoner's consent to generating the Tier 2B report and their consent in consulting with other parties within Corrections Victoria. The process may also include Sentence Management and the Parole Board.
3. Ms Sakellaridis gave evidence she conducts a clinical interview with the prisoner and, depending on the complexity of the prisoner's clinical needs, a number of sessions may occur. The clinical interviews occur before Ms Sakellaridis looks at other source material. She said her practice is to hear the individual's account of their offending and any other relevant issues, such as breaches of prison security or engagement with past treatment or educational services within prison, before seeking factual input or opinion from other sources after which she prepares the report.
4. Ms Sakellaridis said the purpose of the Tier 2B is not to provide an accurate account of events. If during the process of the interview with the prisoner and, looking at other source material, contradictions or competing perspectives on certain matters are identified, then they can assist to in turn identify areas for further clarification related to potential clinical needs of a prisoner. This she said necessarily means the Tier 2B report can contain separate and, sometimes differing accounts, that have not yet been reconciled. Ms Sakellaridis said if differences have emerged between a prisoner's version of a relevant matter they are noted and may form part of 'treatment readiness', and pre-treatment intervention process. This is a therapeutic assessment. She emphasised her task is not to make judicial style findings.
5. Ms Sakellaridis gave evidence that a part of any prisoner's rehabilitation is learning to understand the consequences of their actions and to understand differing, but valid, opinions of their actions, even if such opinions challenge their own account. This is part of any early intervention (treatment readiness) and treatment process for any prisoner including the applicant. The person preparing the report does discuss with the prisoner any differences that may have emerged from the clinical interviews and the external sources and such discussion is part of the subsequent intervention.
6. Importantly, Ms Sakellaridis gave evidence that when a Tier 2B report has been completed, the clinician meets the prisoner and discusses the report and recommendations. The prisoner has the opportunity to refuse the recommendations and to refuse to engage in clinical intervention.
7. Ms Sakellaridis gave evidence that in preparing the report relating to the applicant she clearly explained the process to him. She said she told the applicant that the report she prepared would go to Sentence Management, including Brendan Money. She said she also informed the applicant that the Tier 2B report would be provided to the Adult Parole Board for its consideration of the applicant's eligibility for parole. Further, she said she told the applicant that if the Board asked her for a progress report, she would have to provide such a report to the Board. She produced, as an annexure to her witness statement, a form of consent signed by the applicant on 17 January 2008.
8. Ms Sakellaridis said the report she prepared in relation to the applicant contains sensitive and detailed personal information and what she described as 'confidential, clinical opinion'. She said factual material in the report is included according to relevance and connection with the confidential opinions expressed in the report. She said the facts and the opinions are closely linked and cannot be meaningfully extracted from the report.
9. The report, Ms Sakellaridis said, was written by her on the basis that it is a confidential document. This she said allowed her to include frank opinions and a range of potential factual material that assists good decision making in respect of treatment options and management of prisoners. The report is in a form designed for use by clinicians and senior managers. Whilst the report is discussed with the prisoner after its completion the prisoner in never given a copy of it.
10. Ms Sakellaridis gave evidence similar to Mr Money that were a prisoner to be given a copy of the Tier 2B report prior to what she described as 'the intervention process' then there is a risk that the prisoner would manipulate his responses to provide what he perceives to be the answers the clinician is seeking. The prisoner may also be inhibited in his answers or resist the intervention process. She said the intervention process is intended to challenge and support the prisoners in addressing their issues. The aim of pre-treatment intervention is that at the end of the intervention process, the prisoner will recognise that he has areas that he needs to further explore. To facilitate this outcome, the intervention process is intended to occur in an open environment requiring the prisoner to honestly and willingly engage in it. Ms Sakellaridis conceded experienced clinicians are generally adept in identifying when an individual is providing 'anticipated' responses, but she said it is best if the opportunity to enable a prisoner to give anticipated responses is removed by not providing a Tier 2B report to that prisoner.
11. Ms Sakellaridis said that providing prisoners with a Tier 2B report may also lead to the prisoner engaging in self-harm or acting out generally. The prisoner may react adversely to the opinions expressed in the report. This risk is increased if the prisoner is allowed to have a copy of the report and can dwell on the report on their own, rather than discussing their concerns with the clinician.
12. Having worked closely with the applicant, Ms Sakellaridis said he has the potential to engage in manipulative behaviour. She said that should the report be given to the applicant she had concerns that it would undermine his future treatment processes.
13. Ms Sakellaridis gave evidence in her witness statement that release of the report would be likely to cause scepticism and manipulation of the process among other prisoners. Further, she said the form of the report and the information in it, may lead to misunderstanding which in turn could lead to scepticism, anger, recrimination and disengagement in the treatment process. These were all dangers to be avoided according to her evidence.
14. Importantly, Ms Sakellaridis gave evidence in her witness statement that should the report be released she would not in the future provide the same level of detail regarding clinical issues and recommended interventions, including suggested approaches for implementation. Otherwise, she said, prisoners may be able to manipulate their answers which would significantly diminish the effectiveness of any clinical intervention and reduce a prisoner's readiness for release.
15. In reference to the provision of Tier 2B reports to the Adult Parole Board, Ms Sakellaridis said that were such reports to contain less detail and were known to have been provided to a prisoner, the Board may have less confidence in such reports and, if there was a concern that the prisoner had relied on the report to manipulate his treatment, the Board may have less confidence in the clinical intervention.
16. Ms Sakellaridis said she would have concerns for her own safety should the report be released and she made reference to a third party mentioned in the report who could be identified by the applicant should the report be released to him and this could lead to conflict between the applicant and that other person.
17. For the purposes of deciding the application, the tribunal was provided with a copy of the report which it has read in full.

1. The Applicant filed a witness statement that he tendered in evidence.[6] With numerous attachments the witness statement filed by the Applicant totalled 168 pages. The attachment included a statement of legal contentions of some 31 pages and a statement of public interest grounds of some 2 pages. In reaching this decision I have had regard to all of the material filed by the Applicant. In addition the Applicant gave evidence viva voce.
2. The Applicant also filed a witness statement of another prisoner one Paul Steven Haigh dated 21 March 2011. That statement related facts concerning Haigh's treatment through the criminal justice system and referred to other cases. It also contained Haigh's opinions of various matters. In hearing this application I ruled the Haigh statement irrelevant and inadmissible in this application by the Applicant. In reaching my decision I have disregarded it.
3. In his witness statement the applicant expresses many criticisms of the Respondent and the way he has been treated during the term of his imprisonment. He makes a number of points.
4. According to his witness statement, the applicant has served his entire sentence in maximum security. Other prisoners serving long sentences, including life sentences, he says have been moved to lower security prisons after serving one third of the earliest release sentence. He says he is the only such prisoner who has not been moved to lower security. He is currently the seventh longest serving prisoner in Victoria. He contends he has no meaningful sentence plan in place.
5. He draws a distinction from the fact that whereas he has been denied access to the report, whilst in custody he has received copies of all previous psychiatric and psychological reports prepared in relation to him. He does not refer to the fact these reports have been prepared from time to time and for different purposes than that for which the report has been prepared.
6. The applicant states he has a copy of his Tier 1 assessment report dated 20 August 2004 which stated that his assessed risk of re-offending was low.
7. The applicant is critical of the way Ms Sakellaridis conducted the assessment for the report and he disagrees with or does not accept almost all aspects of her evidence. He says in his witness statement, Ms Sakellaridis did not record her sessions with him for the purposes of preparing the report. During those sessions he accuses Ms Sakellaridis of misquoting what he said to her.
8. In his witness statement he made his views about Corrections clear. He said:

I do not trust, and have no faith in, Corrections Victoria as an organisation or any of those its employees employed at its Head Office. I have repeatedly requested that my risk of re-offending assessment and any counselling deemed appropriate or necessary by the APB be conducted by Forensicare, by Victoria Police or by a private practitioner.

1. The applicant went on to say in his witness statement that 'I firmly believe that reports on me prepared by Corrections Victoria are prepared, in part, with a view to defending or supporting the position that they have taken in court.' This is a reference to what the applicant himself described as 'constant litigation' between himself and Corrections Victoria both in the Supreme Court and in this tribunal since 2001.
2. The applicant accuses Corrections Victoria of preparing reports about him with a view to averting adverse media publicity about him which he asserts could occur were he to be transferred to a lower security prison or should he gain any privileges such as access to a computer. He said in his witness statement:

I also firmly believe that senior Corrections Victoria personnel, including Mr Money, intend to assess my participation in the Tier 2B Assessment process - and any other therapeutic or clinical process - in such a way as to justify my continued detention in Maximum Security prisons.

1. In summary, the applicant accuses Corrections Victoria of acting in bad faith towards him.
2. The applicant's evidence that attacks Corrections Victoria also attacks individuals with whom he has dealt with. He accuses Ms Sakellaridis of dishonesty in her dealings with him. He says:

In relation to paragraph 46, my belief is that Ms Sakellaridis is being dishonest when she claims that if the Tier 2 B reports prepared by her were released, then she 'would not provide the same level of detail regarding clinical issues and recommend interventions'. For instance, in early 2009 she provided such a report to the County Court as part of the review of the indefinite sentence of Kevin Carr.

1. Again, the applicant does not take into account that such a report will have been prepared for a different purpose than a Tier 2B report.
2. Expressing his frustrations with Corrections Victoria and the way he asserts he has been treated whilst in prison, the applicant seems to be saying that he finds himself in a catch 22 situation. Whilst Justice Hampel in sentencing him set a non parole period, the applicant believes that he is being handled in a way that means there is no realistic chance he will ever be released. Commenting on paragraph 23 of the witness statement of Mr Brendan Money the applicant said at paragraph 77:

My focus on the pre-parole and parole process has intensified due to my stagnation within the prison system and my impending eligibility for release on parole. On 8 May 2011, I will have three years left to serve of my minimal non parole term. It has long been the practice of the APB that, 'Three years prior to the earliest eligibility date (EED) for parole, in appropriate cases, the Board may fix a tentative date for release on parole'.....The broad accusations regarding 'the substance of rehabilitation, including victim empathy, remorse, taking responsibility for [my] actions and their impact upon all members of the community, regulation of [my] impulses and removal of the risk of serious re-offending', are a mixture of media canards, baseless assertions and self serving claims advanced by Corrections Victoria as justification for the decisions they have taken in relation to my sentence management.

1. The applicant described Mr Money's evidence that he (the applicant) has not yet been assessed as ready to commence offence specific or related treatment as 'an invention designed to provide justification for my lack of progress through the prison system.' He added 'I also firmly believe that such a stance is designed to provide a future justification for the delay of my release on parole'.
2. The applicant gives evidence in his witness statement that he wants access to the report so that he knows what issues he must address in order to be considered eligible for parole or even to advance through the prison system to a lower security prison. The applicant also wants access to the report so that he can see how opinions and recommendations have been arrived at so that if they are based on incorrect facts he can have the opportunity of correcting any error.

Further evidence in reply to the applicant from Mr Brendan Money

1. The respondent tendered a further witness statement of Mr Brendan Money in reply to the witness statement tendered by the applicant. That further witness statement went into evidence as exhibit B.
2. In answer to criticisms of the applicant that he has not had the opportunity to address errors or contradictory information in the report Mr Money said he and his staff meet regularly throughout the year with the applicant. He deposed that in these meetings, information is put to the Applicant, including adverse information, to seek his response. Mr Money said the Applicant is given regular opportunities to respond to information, including that which might be seen as adverse information and which may be of significance in a decision.
3. Where there is conflict between the evidence of the Applicant and the evidence of Mr Money, I prefer the evidence of Mr Money.

Further evidence in reply to the applicant from Ms Sakellaridis

1. The respondent tendered a further witness statement of Ms Sakellaridis in reply to the witness statement tendered by the applicant. That further witness statement went into evidence as exhibit D.
2. In her reply witness statement, Ms Sakellaridis commented on attachment 2 to the witness statement of the applicant which was a report prepared by Dr Paul E. Mullen. She said Dr Mullen prepared his report at the request of the Adult Parole Board to assess the Applicant's mental health ten years into his incarceration. Dr Mullen recommended the Applicant be provided with education opportunities in order to broaden his interests and capacities and to help him to mature. Ms Sakellaridis deposed Dr Mullen made this recommendation in the context of addressing the Applicant's absorption with the military. He opined education would assist the Applicant to develop alternative interests and capacities. She said that since Dr Mullen's report the Applicant has been provided with many opportunities for education. The Applicant sets out these opportunities at [12] and Attachment 3 of his statement.
3. In his witness statement the Applicant attached as attachment 4, a Tier 1 assessment report dated 20 August 2004, which contained a rating of the risk of him re-offending as "2 - low". Ms Sakellaridis said in reply that the Tier 1 Assessment was prepared by members of the Sentence Management Unit of Corrections Victoria and it was a non-clinical assessment of the Applicant based on self-report by the Applicant and historical records.
4. Ms Sakellaridis addressed the Tier 1 Assessment of the Applicant in reply and said:
   1. I have read the Tier 1 Assessment Report and note that the Applicant did not have a criminal history prior to being taken into custody. While I did not write the Tier 1 Assessment Report, in my view, this would be one of the reasons for why his risk of re-offending was classified as low. However, due to the nature of his offences, there was (and is) a capacity to override this raw score risk assessment. This was done in the case of the Applicant's Tier 1 Assessment. It is therefore selective and misleading for the Applicant to say that his risk of re-offending rating was classified as low, when this classification was overridden as part of the Tier 1 Assessment process and this was noted in the Tier 1 Assessment Report.
5. Ms Sakellaridis went on to detail that since the Tier 1 Assessment the Applicant has been further assessed as part of the Tier 2 Assessment process. She conducted a Tier 2A interview on 13 December 2007. This she said was a general clinical assessment that aimed to identify 'offence specific treatment areas' of the Applicant that would require further assessment. The Applicant was apparently given part access to the Tier 2A assessment under a previous Freedom of Information request.
6. Subsequently Ms Sakellaridis prepared the Tier 2B assessment which is the subject of this application.
7. In paragraph 11 of her reply witness statement Ms Sakellaridis addresses the reasons for the delay in completing her Tier 2B Assessment. This is in response to criticisms by the Applicant made in his witness statement. In my view, such criticisms are largely irrelevant to deciding this application.
8. In paragraphs 13 to 20 of her reply witness statement Ms Sakellaridis addresses criticisms advanced by the applicant concerning counselling sessions she conducted with the applicant. Again, in my view, such criticisms are largely irrelevant to deciding this application.
9. Ms Sakellaridis in her reply witness statement deposed, contrary to what had been advanced by the applicant, that a prisoner who is not willing to immediately engage in the clinical intervention process is not thereby denied opportunities for rehabilitation or parole.
10. Repeating what she had said in paragraph [29] of her first affidavit, Ms Sakellaridis in her reply witness statement deposed it would be counter-productive and very unhelpful to the Applicant's rehabilitation to reveal to him the methodology and his case formulation (such as found in the Tier 2B Report) prior to his participation in the Tier 2B assessment process or any future clinical intervention. She said, that non-disclosure of the methodology is not about 'tripping him up'; rather, it enables the Applicant to engage honestly, without tailoring his answers or conduct to what he thinks is being tested. She said that means the counselling relationship can take place in an open and dynamic environment. Ms Sakellaridis added that if the methodology of preparing a Tier 2B assessment is understood by the prisoner, this would limit the clinician's ability to provide an accurate judgment of the individual's engagement or the significance of that individual's answers or behaviour. She said information in the Tier 2B Report provides a clear outline for the current treating clinician and any future clinician. This outline is not intended to be viewed by the Applicant and, if disclosed, it would be difficult to determine the extent to which the Applicant had engaged in the process or the ways in which he had understood and conceptualised his targets.
11. In her reply witness statement, Ms Sakellaridis, in paragraphs [26] to [39] replied to criticisms and arguments advanced by the Applicant in which he is critical of his treatment by the Respondent and Ms Sakellaridis. In my view, such criticisms are largely irrelevant to deciding this application.
12. Where there is a conflict between the evidence of the Applicant and the evidence of Ms Sakellaridis on any issue I prefer the evidence of Ms Sakellaridis. I found her to be a very balanced and professional in her evidence and the way that she gave it. She was prepared to make concessions where appropriate. In my view, the criticisms of her by the Applicant as to how she engaged with him when conducting the Tier 2B assessment and the counselling sessions that followed are unjustified. She is properly concerned with the continued integrity of the process she engaged in with the applicant and that is reflected in her evidence.
13. The Applicant, on the other hand, I found to be a person unwilling to listen to anyone but himself and who is focused entirely upon release from prison at or about the time of his earliest release date. In pursuit of that goal, in my view, he would do or say anything to anyone, or about anyone, if he thought it would advance his case for release from prison. He argues about every aspect of his treatment by the respondent constantly portraying himself as a victim. He is unwilling to allow for any assessment process designed for the purpose of providing an objective assessment of himself as a prisoner who is a major offender within the prison system. In my view, Ms Sakellaridis' concerns that if allowed access to the Tier 2B report the Applicant could take advantage of such access to manipulate the way he partakes in any further counselling or treatment are well justified.

1. The Applicant called the secretary of the Board, David Provan who gave evidence viva voce. He gave evidence Tier 2 Assessments are prepared automatically in respect of all prisoners and are submitted to the Board for its consideration. He said the Board also receives progress or completion reports in relation to prisoners that are recommended by the Tier 2 process.
2. He gave evidence that in compliance with s 31(b) of the Corrections Act 1986 reports of any kind that come into the Board's hands are treated as confidential and are prohibited from release by the Board. He said, reports that may be prepared by the Board for the Supreme Court on an application by a prisoner who may have been sentenced to a term of imprisonment for life to have the Court fix a minimum term fall into a different category because such a report is prepared to assist the Court in its role, not the Board.
3. In reaching my decision, I accept, and act upon the evidence given in both witness statements and orally by Mr Money, Ms Sakellaridis and Mr Provan. I do not act upon the applicant's evidence.

1. The Respondent made the point that in granting the Applicant leave to bring this application as a vexatious litigant, Justice Bell granted leave limited to allowing the Applicant to apply to the Tribunal for review of the Respondent's decision of 19 October 2010 to refuse the Applicant access to his Tier 2B Assessment.
2. The Respondent argued, and I accept, that this proceeding is not a general inquiry into the Applicant's management, rehabilitation or parole. For that reason large parts of the Applicant's witness statement and subsequent statements in reply to it by Mr Money and Ms Sakellaridis are irrelevant to the application.
3. Relying upon the evidence of Mr Money and Ms Sakellaridis, the Respondent submits the report is a critical document to three important deliberative processes (both specific to the Applicant and with general application) that must be undertaken by the Respondent.
4. First, the Applicant's rehabilitation and rehabilitation systems within the prison more generally. Secondly, the Applicant's classification and management (including sentence planning) and the management of the prison more generally. Thirdly, the Adult Parole Board's decision-making and any future decision it may make with respect to the Applicant.
5. The Respondent contends the Tier 2B Report is critical to these processes and that releasing the Report to the Applicant would undermine the flow and quality of information that is provided to authors of Tier 2B reports in the future, and this will undermine the quality of the decision-making.
6. The Respondent relies upon Debono v Department of Justice - FOI Officer [2008] VCAT 1791, where a Tier 2B Report was held to be exempt under ss 30, 31 and 38. The Respondent submits this case is analogous.
7. The Respondent also contends the Tier 2B report sought by the applicant here is analogous to the document sought in Fogarty and Office of Corrections (1989) 3 VAR 214 which was a memorandum from the senior psychologist to the A/Supervisor of Classification.
8. The Respondent makes the point that in both Debono and Fogarty disclosure of the documents sought was held to be contrary to the public interest.
9. Relying on the evidence of Mr Money, the Respondent submits the report was prepared by the then Senior Clinician for Corrections Victoria, Ms Sakellaridis who is employed by and is an officer of Corrections Victoria. This evidence it contends supports the exemption claimed in s 30(1) of the Act.
10. The Respondent also contends the report is an internal working document containing Ms Sakellaridis' opinion, advice and recommendations to the Major Offenders Unit of Corrections Victoria relating to the Applicant's sentencing, classification, suitability for treatment programs and rehabilitation. The report contains Ms Sakellaridis clinical assessment of the Applicant's risk factors and readiness to commence rehabilitation treatment. This evidence, it contends, supports the exemptions in ss 30(1), 31(1)(a) and 38 (relying on s 30(2) and 30(1)(a) and (f) of the Corrections Act).
11. Relying on the evidence of both Mr Money and Ms Sakellaridis the Respondent further contends that discussions between the Senior Clinician and the MOU are conducted on a confidential basis. It argues, the report was prepared by Ms Sakellaridis, the Senior Clinician and received by the MOU on a strictly confidential basis. It argues on the evidence that it is important for there to be free and frank disclosure of information to the MOU from the Respondent's clinician so that the MOU makes its decisions concerning management and rehabilitation with full knowledge of all of the issues. This evidence, it contends, supports the exemptions in ss 30(1), 31(1)(a) and 35.
12. The Respondent contends the evidence shows that disclosure of the report to the Applicant would inhibit the frankness and candour of clinicians providing future reports. When making decisions about the management, sentencing plans and rehabilitation of major offenders, this would affect the integrity of the MOU's decisions in these processes. Also, relying on the evidence of Ms Sakellaridis, the Respondent contends disclosure of the report to the Applicant would enable him to manipulate future risk-assessments, including assessments relevant to his rehabilitation. This evidence it contends also supports the exemptions in ss 30(1), 31(1)(a) and s 35.
13. The Respondent contends the report reveals the analysis used by Ms Sakellaridis to assess risk factors, treatment readiness and treatment suitability and that disclosure of these assessment methodologies and risk factors to the Applicant, or other prisoners, would undermine the integrity of the assessment system. This evidence it contends also supports the exemption in s 31(1)(a).
14. The Respondent also contends that the report contains information about the management of the Applicant within the prison. This evidence it contends also supports the exemption in s 31(1)(a).
15. Finally, the Respondent contends the evidence shows that the report may be confidentially provided to the Adult Parole Board and it is important for there to be free and frank disclosure of information to the Board so that it makes its decisions concerning parole of any prisoner in full knowledge of all of the issues. This evidence, it contends, also supports the exemption in ss 31(1)(a) and 38 (relying on s 30(2) and 30(1)(b) of the Corrections Act).
16. As to public interest arguments the Respondent contends that there is a strong public interest in protecting and promoting the management of prisons and the welfare of all prisoners. In this regard it relies on Corrections Act 1986 and the purposes of that Act as stated in s 1, and the clear purpose stated in s 7. It also relies on the principles as stated in decisions in Musso v Department of Justice [2004] VCAT 1268 at [47] per Judge Bowman VP; Mallinder and Lapidos v Office of Corrections (No 4) (1990) 3 VAR 214. The Respondent argues Corrections Victoria provides rehabilitation treatment opportunities to all prisoners, including the high-risk prisoners who, like the Applicant, are managed by the MOU. This treatment entails the operation of a system of assessments, preparation for treatment and offence-specific treatment programs. That system is relevant to the management of the prison, and also to the rehabilitation of prisoners. The effective operation of such systems requires that not all information about a prisoner be disclosed to him or her.
17. The Respondent further contends the report forms an important part of the system of assessment and assistance operated by Corrections Victoria and is necessarily kept confidential from prisoners because it forms a basis of ongoing assessment and management, and because its disclosure could hinder their treatment and rehabilitation, and would have damaging consequences to the system and, more generally, to the good management of the prison.
18. The Applicant advanced arguments in comprehensive written contentions as to each of the exemptions claimed by the Respondent. He was however, as one would expect, unable to gainsay the evidence lead by the Respondent. He did attack the motives and credit of Corrections generally in almost every aspect of his handling within the prison system. He obviously harbours a sense of grievance at the way he perceives he has been handled and he freely admitted in his evidence that he is hostile, suspicious and contemptuous towards Corrections Victoria. That evidence seemed to be for the purpose of setting up the basis for an argument for disclosure in the public interest.
19. The Applicant gave evidence "it is the non-disclosure of the Tier 2B Assessment Report, combined with such factors as the lack of faith or trust in Corrections Victoria, that has resulted in 'scepticism, anger, recrimination and disengagement' on my part". He pressed this approach unsuccessfully in his cross-examination of witnesses in the tribunal. The Applicant may well hold the views of Corrections Victoria that he does. I have not seen any evidence that shows he is justified in holding such views. I reject his evidence.
20. The Applicant sought to have the tribunal treat the report as akin to a pre-sentence report prepared for a court. The evidence does not permit of such reasoning. A Tier 2B report is prepared for Corrections for a number of different uses.
21. The Applicant argues he is being treated differently to other prisoners because he has not progressed to a lower security prison as others have. The Respondent leads evidence as to the reasons why the applicant remains in the MOU. Based on the evidence lead by the Applicant as to his attitude and opinions of Corrections, in my view, he has only himself to blame if he has not advanced through the prison system as he would have wished. In my view, his argument that he is treated as 'an exception to the rule' is not made out.

1. Having considered the contentions advanced by the parties and the evidence, I am of the view that the Respondent has made out a case that each exemption claimed by it applies.
2. As to the s 30(1) exemption the evidence shows that if released the report would disclose matter in the nature of opinion, advice or recommendation prepared by an officer in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency of the government.
3. The report was prepared by Ms Sakellarides, an officer employed by Corrections Victoria as a senior clinician. I accept the purpose of the report is to assess and report on the suitability of the Applicant for preparation and treatment in specific programs. I accept the report is relevant both to the rehabilitation of the Applicant and to his management in prison. In my view, the report falls squarely into the category of opinion, recommendation or advice given by one officer of the Respondent to another for the purpose of the deliberative processes involved in the functions of Corrections Victoria and its management of the Applicant within the prison system.
4. I agree with the Respondent's contention that it is not in the public interest to release this report. I accept there exists a public interest in maintaining the confidentiality of a key deliberative document in the process of assessing prisoners for suitable treatment programs and classification and management within the prison system. This public interest is to be balanced against releasing the report to the Applicant for the purpose of informing him of what has been written about him. In my view, a balancing of competing interests favours maintaining the application of the exemption.
5. In my view, there is a public interest in maintaining the confidentiality of reports likely to be used by the Parole Board in determining parole applications. The evidence shows the report has been provided to the Parole Board, and will be relied upon by it to make a decision in relation to the Applicant. Release of the report would likely undermine these processes, impede the free exchange of information and inhibit candour in compiling the Report.
6. In my view, release of the report would disclose methodology used by clinicians preparing such reports. Such disclosure would seriously undermine the Applicant's treatment and any future assessment.
7. The Respondent has made out the exemption it claims under s 30(1) of the Act.
8. I accept the evidence shows release of the report would, or would be reasonably likely to, prejudice the enforcement or proper administration of the law in relation to the way Corrections Victoria carries out its duties under the Corrections Act 1986. The expression 'administration of the law' in s 31(1)(a) of the Act includes the administration of prisons and the classification of prisoners in a prison.
9. I accept that release of the report will be reasonably likely to prejudice Corrections by undermining its assessment and rehabilitation of the Applicant, and of other prisoners subject to the assessment and rehabilitation process administered by Corrections. I accept the evidence of Mr Money and Ms Sakellaridis that shows the Report is an important document in understanding the Applicant's current treatment needs and providing it to the Applicant will undermine the Applicant's future treatment and the assessments of such treatment.
10. I also accept the evidence shows that release of the report is reasonably likely to undermine the assessment of the Applicant (and other prisoners) by the Parole Board and prejudice it.
11. Further, I accept the evidence shows, that release of the report is reasonably likely to restrict the open and frank assessments provided by psychiatrists in the future in relation to the Applicant and prejudice Corrections Victoria and the proper administration of the law in the case of the Applicant.
12. The Respondent has made out the exemption it claims under s 31(1)(a) of the Act.
13. I accept the evidence shows release of the report would result in the divulging of information or matter communicated in confidence by Ms Sakellaridis to Corrections and the disclosure of the information would be contrary to the public interest because the disclosure would be reasonably likely to impair the ability of Corrections to obtain similar information from either the Applicant or other prisoners in the future.
14. The unchallenged evidence is that Ms Sakellaridis provided the report to the MOU on a confidential basis. I accept the evidence of Mr Money and Ms Sakellaridis and the contentions of the Respondent that if the report were released to the Applicant, or disclosed to other prisoners, clinicians would provide less information and be less candid in their written reports in the future with a view to the report being released to a prisoner or into the prison more widely. I accept that disclosure would impair Corrections Victoria's capacity to obtain the current level of detailed information in the future. The system for reporting to Corrections Victoria on a prisoner's risk factors and treatment readiness would be impaired and rendered less valuable.
15. The Respondent has made out the exemption it claims under s 35 of the Act.
16. Section 30(2) of the Corrections Act 1986 prohibits a person within Corrections from disclosing confidential information. The expression 'confidential information' is defined in s 30(1) of the Corrections Act. Relevantly, I am of the view the report contains confidential information as defined within s 30(1)(a) and s 30(1)(b) and s 30(1)(f) of the Corrections Act 1986.
17. Section 38 of the Act provides for an exemption from the release of information where there is in force another enactment which provides for the absolute prohibition of disclosure of information of the kind contained in the document which it is sought to have access to.
18. Having read the report, I am of the view that the information contained in it is confidential information within s 30(1)(a) and s 30(1)(b) and s 30(1)(f) of the Corrections Act 1986 and is therefore the kind of information caught within the s 38 exemption.
19. The Respondent has made out the exemption it claims under s 38 of the Act.

Can the report be edited applying section 25 of the Act?

1. I accept the Respondent's contentions that the evidence establishes the exemptions in ss 30, 31, 35 and 38 attach to the report in its entirety. The Respondent submits the facts, opinions and case formulation advanced by Ms Sakellaridis in the report cannot be separated as the opinions are imbedded with factual references and the opinions lead to the case formulation, or recommendations.
2. I accept it is impossible and impractical to excise or delete only the exempt material. That is because it is interconnected with the facts upon which it is based. If the report was edited then in my view the edited report would be rendered devoid of context or coherent meaning and it would be meaningless to any person, including the Applicant. An edited report would be devoid of the major features such that its content would be misleading. It is not possible to edit the report in such a way that would not have this effect.
3. I am of the opinion the report cannot be edited within s 25 of the Act.

1. I turn to consider whether the report, being exempt from release because of operation of ss 30(1), 31(1)(a), 35 and 38 the Act, should nonetheless be released to the applicant in the public interest exercising the discretion in s 50(4) of the Act. The respondent bears the onus of proving that the override should not be invoked where a relevant public interest in the release of the document can be identified.
2. The Applicant lodged with the tribunal a statement of public interest grounds dated 27 April 2011. Grounds numbered 1 to 3 advanced by him merely mirror the purposes of the Act.
3. Grounds 10 to 16 advanced by the Applicant in general terms concern the question of the public interest in the proper administration of prisons and prisoners and the need for public confidence in the operation of the parole system. Were the report to be released the public would not be informed in any way that would address these grounds.
4. The Applicant's case, in the end, comes down to the grounds advanced in paragraphs 4 to 9 of his statement of public interest grounds. In short, those grounds may be summarised as a submission that there is a public interest in a person whose interests are affected by a document, such as the report, having access to it so that he can have the opportunity to address any criticisms raised by its content and correct any errors.
5. The Respondent agrees there is a public interest in the proper administration of the prison system and the liberty and rights of the individual. It also agrees there is a public interest in the fair and humane treatment of prisoners. It repeats the public interest grounds I have summarised in paragraphs [101] to [103] hereof.
6. The Respondent argues the public interest grounds advanced by the Applicant are either general or personal only to him and as such he has not made out a case for a relevant public interest that requires release of the report.
7. 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 s 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'.[7]
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 have been unable to identify 'a high threshold public interest' warranting the exercise of the discretionary power in s 50(4) of the Act in this application. In my opinion, the grounds advanced by the applicant are either general grounds in favour of the application of the Act generally or they are personal to him. None of the grounds advanced by the Applicant identify public interest factors of a high order that should be balanced against the contentions advanced by the Respondent. I therefore decline to exercise any discretion under s 50(4) of the Act.
2. For these reasons the decision of the respondent on 19 October 2010 refusing a request by the applicant for access to documents in its possession is affirmed.

[1] Fogarty v Office of Corrections, Fogarty v Health Department [1989] VAR 214.

[3] Debono v Department of Justice - FOI Officer [2008] VCAT 1791 at paragraph 22.

[7] 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.