Little v Department of Communities and Justice

Information to which the application relates

1. At the commencement of the hearing, the information to which the access application related comprised: 1. Any reports (other than the Officer Report) by the named correctional officer in relation to the incident on 11 December 2006. 2. The Intelligence Report. 3. The Recorded Calls.

Scope of review by the Tribunal

1. Section 80 of the GIPA Act sets out the reviewable decisions that may be the subject of review by the Tribunal. The parties agreed that the hearing would proceed on the basis that the reviewable decisions in this matter are the respondent's decisions: 1. that it does not hold further reports by the named correctional officer in relation to the incident on 11 December 2006 other than the Officer Report (s 80(e) of the GIPA Act); and 2. to refuse to provide access to the Intelligence Report and the Recorded Calls (s. s 80(d) of the GIPA Act).

Confidentiality of part of hearing

1. Section 107(1) of the GIPA Act provides that the Tribunal must ensure that information in which there is an overriding public interest against disclosure is not disclosed. Section 107(2) of the GIPA Act provides that the Tribunal must receive evidence and hear argument in the absence of the applicant and the public, if necessary, to prevent the disclosure of such information.
2. Accordingly, and following submissions from the parties, I conducted part of the proceedings in the absence of the applicant to consider the information the respondent claimed to be subject to an overriding public interest against disclosure and confidential submissions and statements in support of the respondent's claims in this regard.

Material before the Tribunal

1. The applicant did not file any written submissions and did not seek to rely on any evidence at the hearing. The applicant made oral submissions during the hearing.
2. The respondent filed and served written submissions as well as statements of Ms Forbes, Information and Privacy Officer of the respondent, Ms McDade, Executive Officer and Registrar of the Serious Offenders Review Council and Ms West, Senior Assistant Superintendent of the Corrections Intelligence Group. The respondent relied on these statements at the hearing. The respondent also relied on a certificate regarding the Intelligence Report signed by Ms West, General Manager of the Corrections Intelligence Group.
3. In addition, and as outlined above, the respondent filed submissions, copies of the Recorded Calls and statements with the Tribunal on a confidential basis. A copy of the Intelligence Report was made available to me during the confidential part of the hearing on 15 January 2020.

The GIPA Act

1. Section 5 of the GIPA Act provides a presumption in favour of disclosure of the information unless there is an overriding public interest against disclosure. Section 9(1) of the GIPA Act gives the applicant a legally enforceable right to access the information requested, unless there is an overriding public interest against disclosing the information.
2. Section 12(1) of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information. Section 12(2) provides that nothing limits the considerations in favour of disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure.
3. Section 13 of the GIPA Act provides that there will only be an overriding public interest against disclosure if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 14 contains a table (the Table) which sets out the only public interests considerations against disclosure that can be taken into account.
4. Section 15 of the GIPA Act provides that determinations by agencies are to be made in accordance with the principles set out in s 15 of the GIPA Act. Those principles include promotion of the objects of the GIPA Act and a provision that disclosure cannot be made subject to any conditions on the use or disclosure.
5. Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision.

Whether the respondent holds further reports by named correctional officer

1. The applicant contends that there are reasonable grounds to believe that the respondent holds further reports by the named correctional officer regarding the incident on 11 December 2006.
2. The respondent's obligation to search for information is set out in s 53 of the GIPA Act and requires the respondent to undertake "reasonable searches". Where an agency identifies information that it holds and provides or refuses access to that information (but it does not make an explicit decision that it holds no further information) it can be inferred that the agency has made a decision that it holds no further information relevant to the access application (Robinson v Commissioner of Police [2014] NSWCATAP 73 at [8]).
3. The approach the Tribunal takes to a question as to the reasonableness of searches has been put as follows (see Camilleri v Commissioner of Police [2012] NSWADT 5): 1. The Tribunal must ask whether there are reasonable grounds to believe the information requested exists and is information of the agency. 2. If the answer to (1) is yes, the Tribunal must consider whether the efforts made by the agency to locate the information have been reasonable in the circumstances.
4. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information exists but has not been released (Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57]). This requires the applicant to put forward some credible material or submission that information of the kind exists. The respondent bears the onus of satisfying the Tribunal that the searches conducted were reasonable in the circumstances (Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187).
5. The applicant's submissions were that he recalled there being three reports that would fall within the scope of his access application request for reports by the named correctional officer in relation to the incident on 11 December 2006. The first is the Officer Report. The second is a report the applicant recalls receiving with the brief of evidence provided by the NSW Police in respect of charges against the applicant arising from the 11 December 2006 incident. The third is a report the applicant recalls receiving as part of a bundle of materials provided for the purposes of a hearing of the Serious Offenders Review Council (SORC) in respect of the incident on 11 December 2006.
6. In support of his recollection, the applicant stated that he recalled that the report provided by the NSW Police referred to the time the applicant was to be taken from one block of the correctional facility to another as 9:30am, whereas the applicant recalls the report provided for the SORC hearing referred to 9:45am as the relevant time. The applicant also recalled that the three reports contained similar information, but that the report provided for the SORC hearing was prepared at a later point in time and probably sometime in 2007. In respect of all three reports, the applicant's position appears to have been that the reports were all substantially the same except the differing times noted as outlined above.
7. The respondent submitted that Mr Little's recollections do not put forward credible material or submissions that further reports exist. In respect of any further report that may have been provided as part of a brief of evidence, the respondent submits that may be a report prepared by the NSW Police and therefore information held by that agency and not the respondent.
8. The applicant is an inmate in a maximum security correctional facility and stated at the hearing that he has limited access to documentation. In addition, the relevant incident took place almost fourteen years ago. Accordingly, it is to be expected that the applicant may have difficulty recalling elements of the two reports he considers the respondent holds.
9. However, during his submissions the applicant appeared to suggest the two missing reports were substantially the same as the Officer Report in both form and content. The Officer Report is a report signed by the relevant correctional officer, being (at the time) an employee of a division of the respondent. Given this, it seems unlikely that the NSW Police or SORC (being an independent statutory authority) would procure a report in substantially the same form as that prepared by the relevant correctional officer, albeit with different times in each report as the applicant claims. While I consider that it is possible that the NSW Police or SORC may have produced reports themselves for the purposes of exercising their functions regarding the incident on 11 December 2006, I would expect such reports take a different form from the Officer Report.
10. Further, the report the applicant recalled was provided to him by the NSW Police may have been a document created by the NSW Police as part of the brief of evidence in respect of the criminal charges against the applicant. This document may not have been provided to the respondent at the same time as it was provided to the applicant and therefore may not be 'held' by the respondent for the purposes of the GIPA Act.
11. While I expect there would be a large number of documents that were produced in respect of the incident on 11 December 2006, the applicant has not put forward credible material or submissions that the two further reports he described exist and are information of the respondent.
12. I now consider the extent of the searches carried out by the respondent and set out my finding in respect of those searches.
13. The sworn statement of Ms Forbes identifies the steps she took on receipt of the access application and following clarification of the scope. Ms Forbes' statement indicates that she: 1. Requested relevant searches by the Dawn De Loas Correctional Centre where the applicant was previously located. 2. Requested relevant searches by the applicant's current correctional facility. 3. Requested relevant searches by the Corporate Records division of the respondent. 4. Requested relevant searches by SORC. 5. Requested relevant searches by the Corrections Intelligence Group. 6. Requested relevant searches by the Professional Standards Branch of the respondent.
14. The Corporate Records division of the respondent provided a number of records. In her statement Ms Forbes states "the majority [of the] records were not within the scope of the application … because they were not reports of the [named correctional officer]". The Officer Report was one document that was identified as within scope and relevant to the access application. The Dawn De Loas Correctional Centre had referred the request from Ms Forbes to the Corporate Records division of the respondent as it had not identified any relevant information.
15. The applicant's current correctional facility stated it held no relevant records because the incident occurred prior to the applicant being moved to his current location.
16. The Director of the Professional Standards Branch stated that no reports (other than the Officer Report) were identified.
17. Ms Forbes' statement indicates that SORC replied advising that they did not hold any relevant information because they "did not commence their management of the applicant until March 2007". I asked the respondent to clarify the position of SORC in this regard because it was unclear if SORC had actually conducted a review of its files. A sworn statement of Ms McDade was provided on the second day of the hearing which stated that Ms McDade conducted searches of SORC's records and located three files relating to the applicant. Ms McDade states she reviewed the three files but was unable to locate anything relating to the incident on 11 December 2006 or any reports by the named correctional officer.
18. During the hearing, the applicant demonstrated a broad understanding of the way in which information was collected and stored at various correctional facilities (although the applicant's submissions in this regard appeared to be directed in part to the Intelligence Report as well as any further reports by the named correctional officer). However, when I asked the applicant what concerns he had with the nature of the searches conducted by the respondent and described in Ms Forbes' statement, the applicant remarked that he wasn't able to "challenge that" and that's "her process". The applicant was not able to take me to any further searches that should have been carried out but were not, or to identify deficiencies with the searches carried out by the respondent.
19. I find that the scope of the searches were broad enough to identify any reports by the named correctional officer, including the reports the applicant recalls were provided to him by the NSW Police and SORC. I also find that the facilities and divisions of the respondent requested to carry out the searches were appropriate for the nature of the information requested.
20. Based on the material before me at the hearing, I find the searches carried out by the respondent were reasonable in the circumstances and that the respondent holds no further reports by the named correctional officer in relation to the incident on 11 December 2006.

Refusal to release the Intelligence Report

1. The respondent's submission was that the Intelligence Report is subject to a conclusive overriding public interest against disclosure pursuant to s 14(1) of the GIPA Act and cl 7(d) of Sch 1 to the GIPA Act. Section 14 (1) of the GIPA Act relevantly provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
2. Clause 7 of Schedule 1 to the GIPA Act relevantly provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in any of the following documents - ... (d) a document created by the Corrections Intelligence Group of Corrective Services NSW, Department of Justice, in the exercise of its functions concerning the collection, analysis or dissemination of intelligence.
3. The Tribunal has previously stated Betzis v Commissioner of Police [2020] NSWCATAD 71: "The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interests in favour of or against disclosure before refusing access to it and the Tribunal is precluded from considering the public interest test in relation to that information."
4. In support of the Intelligence Report being a document of the kind described in cl 7(d) of Sch 1 to the GIPA Act, the respondent filed a certificate signed by Ms West, General Manager of the Corrections Intelligence Group. The certificate purports to be "certification pursuant to clause 7(d) Schedule 1 of the [GIPA Act]". The certificate "certifies" that a report referred to as "IR 1446.06" was created by the Corrections Intelligence Group "in the exercise of its functions concerning the collection, analysis or dissemination of intelligence". A sworn statement of Ms West was also filed and served. The statement confirms the information set out in the certificate.
5. The applicant submitted that he had previously been provided with a copy of the Intelligence Report as part of the brief of evidence served on him by the NSW Police in relation to the 11 December 2006 incident. When I questioned the applicant further about the Intelligence Report and his position that it had been provided to him in the past, it became apparent that the applicant was not previously provided with a copy of the Intelligence Report but rather that he considers he is sufficiently aware of its contents. It appears the applicant considers he knows the contents of the Intelligence Report because, during interviews about the incident on 11 December 2006, various officers and officials mentioned aspects of what the Intelligence Report contained. The applicant also submitted that he knows the "people who would have been consulted or interviewed" for the Intelligence Report and what they would have said.
6. I have reviewed the Intelligence Report. The Intelligence Report is titled "IR 1446.06" as set out in the certificate and statement of Ms West. Following my review, I am satisfied that the Intelligence Report is a document prepared by the Corrections Intelligence Group which has been prepared in the exercise of that group's functions concerning the collection and analysis of intelligence information relating to prisoners in NSW correctional facilities.
7. While I note that the applicant considers he knows the contents of the report, the task before me in respect of the Intelligence Report is to determine whether it is a document of the kind described in cl 7(d) of Sch 1 to the GIPA Act. Based on the unchallenged evidence of Ms West and my review of the Intelligence Report, I find that it is a document of the kind described in cl 7(d) of Sch 1 to the GIPA Act. Accordingly, the Intelligence Report is subject to a conclusive presumption of an overriding public interest against disclosure to the applicant (or any member of the public).

Refusal to disclose the Recorded Calls

1. The respondent submitted that the disclosure of the Recorded Calls would reveal personal information in a manner contrary to cls 3(a) and 3(b) of the Table.
2. Relevantly, cl 3 of the Table provides: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 …
3. The relevant public interest consideration against disclosure of information applies if disclosure of the information "could reasonably be expected to" have one or more of the effects set out in the clause.
4. The words "could reasonably be expected to" have been held to require "something which is more than a mere risk or chance". It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived": Leech v Sydney Water Corporation [2010] NSWADT 198 at [28], adopted in Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]-[42]. While it must be a 'real' risk, the chance of it materialising need not be more probable than not (Neary v State Rail Authority [1999] NSWADT 107 at [35]-[36]). The phrase "'simply calls for an objective assessment, on the evidence before the Tribunal, as to whether the claimed effects could be expected to arise, from the standpoint of a reasonable administrator. Ultimately, it is of course a question of fact" (Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]).
5. In determining whether the public interest against disclosure outweighs the public interest in favour of disclosure, each matter is to be determined on its own facts and, as stated by the Tribunal in Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [70], the balancing of the competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation".

Consideration of cl 3(a) - reveal an individual's personal information

1. Clause 4 of Schedule 4 to the GIPA Act defines personal information to mean "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion".
2. The respondent submitted that the disclosure of the Recorded Calls would reveal the personal information of an individual (being a person with whom the applicant was in a domestic relationship (Former Partner)) and should not be disclosed to the applicant.
3. The applicant was one of the two parties on the two telephone calls that now comprise the Recorded Calls. Accordingly, the Recorded Calls involve information that is the personal information of the applicant. The notes to s 12(2) of the GIPA Act give examples of public interest considerations in favour of disclosure and note (d) provides for information that "is personal information of the person to whom it is to be disclosed". Accordingly, where the information includes personal information of the applicant this should be taken into account as a consideration in favour of release of the information.
4. The NSW Information Commissioner has published GIPA Guideline 4 - Personal Information as a public interest consideration under the GIPA Act published pursuant to s 14(3) of the GIPA Act (Guideline 4). Section 15(b) of the GIPA Act requires decision makers have regard to Guideline 4. Paragraph 3.4 of Guideline 4 states: "Clause 3(a) … should not be used as a reason for denying people access to their own personal information. Rather, it is intended as a balance between the public interest in having access to government information, and the public interest in protecting and controlling the disclosure of personal information to people other than the person to whom the information relates."
5. In the Recorded Calls, the applicant's personal information is intertwined with the personal information of another person whose identity is apparent or can reasonably be ascertained. The disclosure of this personal information must be balanced against the applicant's interest outlined above.
6. Clause 3(a) of the Table requires the personal information to be revealed. The word 'reveal' is defined in cl 1 of Sch 4 of the GIPA Act to mean "to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)".
7. Section 73(1) of the GIPA Act provides that no conditions on the use or disclosure of information may be imposed when access to the information is given in response to an access application. In Sherman v Commissioner of Police [2016] NSWCATAD 107 at [14], the Tribunal found that disclosure under the GIPA Act is, in effect, a disclosure "to the world at large".
8. Paragraph 3.5 of Guideline 4 states that "if the personal information has already been publicly disclosed, this consideration against disclosure cannot be relied on".
9. The respondent submitted that the Recorded Calls were recorded pursuant to, amongst other provisions, s 233(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) which provides that the governor of a correctional facility has the "care, direction, control and management" of the facility and in accordance with the requirements. The respondent also submitted that the Recorded Calls were recorded as required by Part 2.2 of the 'Custodial Operations Policy and Procedures' which requires inmate calls to be recorded and, from time to time, monitored.
10. The respondent submitted that information such as Recorded Calls is not publicly disclosed and the Recorded Calls have not been so disclosed. The applicant did not challenge the respondent's submissions in this regard at the hearing.
11. The applicant stated that he wishes to understand the reasons why he was given a particular inmate risk classification in 2006 and the Recorded Calls may assist him with this inquiry. This is a relevant personal factor in favour of providing access to the Recorded Calls pursuant to s 55(2) of the GIPA Act.
12. The applicant stated on a number of occasions during the hearing that he knew what was said in the Recorded Calls. However, at the hearing, while the applicant was able to identify the Former Partner as the other person involved in the Recorded Calls, the applicant did not identify the content or nature of any of the personal information discussed during the calls. While this is perhaps not surprising given the period of time that has passed since the time the recordings were made and the hearing, I find that the applicant does not know the content of the Recorded Calls, as he submitted at the hearing. While not determinative because the relevant test is whether the personal information has been publicly disclosed, it is relevant to note in so far as the personal information has not, to date, been publicly disclosed by the respondent and is not information currently known by the applicant.
13. The applicant also submitted that he was able to obtain the information he seeks (which I understood to include the Recorded Calls) from other sources, including the brief of evidence provided to the applicant by the NSW Police and through issuing subpoenas in separate unidentified legal proceedings the applicant has on foot or proposes. Despite these sources, the applicant stated he preferred to use the GIPA Act to obtain the information.
14. Unlike a written document, the information under consideration is an electronic recording of a discussion between two people. Given this, it is not practical to delete those parts of the person information of the Former Partner to enable the release of the remaining parts of the Recorded Calls to the applicant. In addition, the relevant information is the Recorded Calls and the GIPA Act does not impose an obligation on the respondent to create information (such as a written transcript) not held by the respondent at the time the application was received (see s 75(2) of the GIPA Act).
15. I have listened to the Recorded Calls and am satisfied the content of the calls includes personal information about the Former Partner including information relating to social events she had attended, matters arising from the management of her home and matters pertaining to her relationships with family members. I find that the Recorded Calls have not been publicly disclosed and that disclosing the information would have the effect of revealing the personal information. Accordingly, I am satisfied that the respondent has established that a disclosure of the information in issue could reasonably be expected to reveal the personal information.
16. The applicant seeks information from calls made around 14 years ago for the purposes of understanding why he was given a particular inmate risk classification in or around 2006. The applicant has, from various sources, obtained a range of documents relevant to his inquiries, including the Officer Report and the Transcript. In addition the applicant has stated he has access to the information he seeks through other means. Considering these matters and in the balancing of the competing interests of the applicant and those set out in cl 3(a) of the Table I consider the public interest consideration against disclosure of the personal information from being publicly disclosed should be given greater weight than the applicant's interest in being given access to the Recorded Calls.

Consideration of cl 3(b) - contravene an information protection privacy principle

1. The respondent relies on the principle in s 18 of the Privacy and Personal Information Protection Act 1998 (NSW). Relevantly, s 18 provides: A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - … (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body …
2. As outlined above, the respondent identified s 233(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) and Part 2.2 of the 'Custodial Operations Policy and Procedures' as relevant to the purpose for which the Recorded Calls were recorded. The respondent also submitted that all callers hear a preliminary recorded message which states that the call will be recorded and may be used for "monitoring purposes".
3. The applicant's submissions outlined above in relation to cl 3(a) of the Table were made in respect of cl 3 of the Table generally and therefore can be taken as submission in respect of cl 3(b) of the Table.
4. I do not consider it reasonably likely that participants in a phone call with an inmate would be aware that information of the kind contained in the Recorded Calls would be disclosed to a person who makes an application under the GIPA Act. Accordingly, I am satisfied that disclosure of the information could reasonably be expected to contravene an information protection principle for the purpose of cl 3(b) of the Table.
5. For the same reasons as set out above in respect of cl 3(a) of the Table, in the balancing of the competing interests of the applicant and those set out in cl 3(b) of the Table, I consider that preventing the contravention of an information protection principle should be given greater weight than the interests in favour of access to the Recorded Calls.

Consideration of other matters raised by the respondent

1. The respondent submitted that cl 6(1) of the Table applied as another public interest consideration against disclosure. A further public interest consideration against disclosure was raised by the applicant during the confidential parts of the hearing. Given my decisions regarding cls 3(a) and 3(b) of the Table, there is no need to consider either of these matters in this decision.

Conclusion

1. The orders of the Tribunal are as follows: 1. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 107 of the Government Information (Public Access) Act 2009 (NSW), the evidence, submissions and record of the parts of the proceeding conducted in private on 15 January 2020 and 5 February 2020 are not to be released to either the applicant or the public. 2. The decision of the respondent is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 21 May 2020 - Representation of Respondent changed from Crown Solicitor to Department of Communities and Justice DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2020