Victorian Civil and Administrative Tribunal|1999-12-31

Lomax v DOJ [1999] VCAT 2125 (31 December 1999)

General List - Freedom of Information - Prisoner seeking documents relating to Parole Board's consideration - Whether documents would prejudice the enforcement or proper administration of the law - Sections 31(1) and 50(4).

For the Respondent: Mr Batskos instructed by FOI Solutions

2. The applicant made a request pursuant to the Freedom of Information Act 1982 ("the Act") by letter dated 5 July 1999 whereby he sought various documents, including reports about himself that had been or were about to be submitted to the Adult Parole Board by staff at the Ararat Prison, where the applicant is incarcerated, including the Sex Offender Programme Unit.

3. Initially, the respondent was of the view that there were three documents in dispute that related to the applicant's request. However, after further examination, the respondent formed the view that the document previously described as document 1 in its schedule of documents did not come within the request. As a preliminary point at the hearing before me, the applicant objected to this ruling. However, after viewing the document and hearing submissions and hearing evidence from Mr Lucas who is a permanent member of the Adult Parole Board, I formed the view that the document in question had never been submitted to the Adult Parole Board and was not about to be so submitted and, as a consequence, that was not one of the documents that was in dispute for the purposes of this application. The two documents in dispute are, document 2 dated 1 June 1999 and described as "Sex Offender Programs, Intensive Sex Offender Program, Completion Report" to which exemptions pursuant to ss.30(1), 31(1)(a) and 38 of the Act were claimed. The second document being document 3 bears the same date as the first document and is a "Parole Officer's Assessment Report" to which exemptions pursuant to ss.30(1), 31(1)(a) and (c) and 38 were claimed.

4. The documents in dispute are described by Mr Lucas, in his statement which was tendered in evidence, as follows :

"Document 2 is a confidential report to the Board from the Co-ordinator and a therapist of the Wimmera Treatment Unit. It is a completion report of the kind referred to in paragraph 20 above. Written upon it in bold text and capital letters is the word, "CONFIDENTIAL". The report contains various sensitive information including details about the prisoner's progress in the program and conclusions and recommendations about the prisoner. The majority of the document is in the nature of opinions about the prisoner and his future and includes various recommendations.

Document 3 is a confidential report to the Board from the relevant community corrections officer generated in accordance with the usual procedure outlined in paragraph 17 above. It is headed, `Parole Officer's Assessment Report'. It is apparent from the nature and content of the document that the author consulted a number of different confidential sources of information. Disclosure of the document would disclose the identities of the individuals who provided confidential information to facilitate the making of the report. It is well known within the corrections system that any information provided to corrections officers for the preparation of reports such as this may be included in a confidential report to the Board.

The report contains various sensitive information including details about the prisoner's participation in the sex offenders program and a large number of statements of opinion or recommendation in relation to the prisoner. The sensitivity of the nature of the information in the document is largely self-explanatory".

5. The applicant is currently serving sentences at the Ararat prison for various sex offences. In July 1996, he was sentenced to six years jail with a non-parole period of three years. He thus became eligible for parole in July of this year.

6. Mr Batskos in written submissions to me, summarized the background relating to this dispute :

"During his (the applicant's) term in prison the applicant has participated in an intensive program for sex offenders conducted at the Ararat Prison in a unit known as the Wimmera Treatment Unit. In accordance with usual procedures, upon his completion of that program the Co-ordinator and a therapist in the Wimmera Treatment Unit prepared a confidential report for the Adult Parole Board. That confidential report is the first document remaining in dispute and numbered document 2.

When a prisoner becomes eligible to be considered for parole an automatic procedure is in place which results in a corrections or parole officer from the nearest Community Correctional Service (in this case Ballarat Community Correctional Services) preparing a confidential report for the Board in relation to the prisoner. That confidential report is the second document remaining in dispute and numbered document 3".

7. Richard Lucas, a full time member of the Adult Parole Board, gave evidence of the composition of the Board and of the fact that the Board considers the question of release on parole of a number of prisoners that are eligible for parole at various times. He stated in his evidence that the usual procedure was that reports such as those in dispute at the moment are commissioned by the Parole Board and considered by it when making its decision. He further stated, that in many cases, the Board makes its decision on documentation rather than hearing the prisoner concerned. Although, he stated on some occasions the Board does hear from the prisoner. At paragraphs 7 and 8 of his witness statement, Mr Lucas describes the report as follows :

"7. The Board itself initiates the task of gathering relevant information for the purpose of considering whether to make a parole order. It has a responsibility to consider the position of prisoners at a point in time before they become eligible for parole. A correctional officer may be asked to prepare a report about the relevant prisoner as part of the information gathering process of the Board. The reports are in the nature of case histories including details of sentence and information from police, correctional officers and other relevant persons depending on the prisoner. The reports are available to and considered by the Board when a decision is made about whether to make a parole order. If needed medical, psychiatric or psychological reports are supplied by appropriately qualified persons.

8. The reports often address matters such as the considerations to be borne in mind as to whether a prisoner, if released, would be a risk or not to the community, as well as the need for any continuing treatment of a medical, psychological or psychiatric nature. If the prisoner was a sex offender, as is the present case, the reports often deal with issues concerning the families of the offender and release of the reports in those circumstances could create further concerns and potential for further abuse of victims. These are all matters that may bear upon conditions that may be placed on the parole order".

8. The applicant in his statement said that he requested the documents so that he could examine them and possibly use them as evidence in an application that he had made to the Commonwealth Administrative Appeals Tribunal, concerning an order for deportation to New Zealand. The applicant stated that the Parole Board is currently unable to consider a parole date because the Department of Immigration and Multi Cultural Affairs had issued him with a deportation order, which order he was currently seeking to review before the Commonwealth Administrative Appeals Tribunal..

"My reason for applying for these documents is as evidence in my appeal against deportation.

a) show that I have attended all possible rehabilitation programmes and activities;

b) indicate the extent of rehabilitation achieved in these programmes; and

c) enable me to decide whether to call one or more of the therapists as witnesses in the appeal.

A secondary reason is to ensure that appropriate and accurate information about me has been given to the Adult Parole Board".

10. Mr Batskos in his submissions at paragraph 1.5 summarizes the respondent's claim for exemption in relation to each of these reports. He states :

"The Department claims that the confidential reports to the Board are exempt from access :

(a) under section 31(1)(a) of the Act as disclosure of the document would or would be reasonably likely to prejudice the administration of the law in a particular instance; and

(b) under section 31(1)(c) of the Act as their disclosure would or would be reasonably likely to disclose or enable a person to ascertain the identity of a confidential source of information in relation to the administration of the law.

(c) under section 38 of the Act as there is a secrecy provision in an enactment that prohibits the disclosure of the information in the document (ss.30(1) and (2) of the Corrections Act 1986); and

(d) under section 30(1) of the Act as there would be disclosure of matter in the nature of opinions and recommendations prepared by an officer of the Department as part of and in the course of the deliberative process of the Department or the government and that disclosure of that matter would be contrary to the public interest".

11. Section 31(1)(a) reads as follows :

"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 a possible breach of the law or prejudice the enforcement or proper administration of the law in a particular instance".

12. Mr Batskos submitted that, in this instance, both the documents in dispute are exempt because to disclose the same would "prejudice the proper administration of the law". Mr Lucas in his evidence, made a number of salient points which I will attempt to summarize :

(a) reports to the Board from a variety of sources are of vital and paramount importance to the ability of the Board to properly carry out its functions;

(b) reports to the Board are made by persons on the understanding that the information they are giving is confidential;

(c) without the confidentiality of reports, it would be difficult if not impossible to obtain, full and frank reports, which in turn would make it difficult if not impossible for the Board to carry out its function properly or at all; and

(d) the reports contain highly sensitive information from diverse confidential sources, which information the Board requires to make a proper decision.

13. Mr Batskos correctly makes the point that it has been held on numerous occasions that the expression in s.31(1)(a), "administration of the law", applies to the administration and management of prisons and prisoners and the classification in parole of prisoners, see Haigh v Health Commissioner of Victoria (Judge Rendit, unreported 19 June 1984); Re Mallinder and Office of Corrections (1988) 2 VAR 566, 580; Re Fogarty and Office of Corrections (1989) 3 VAR 214, 231; Re McCubbin and Office of Corrections (unreported Deputy President Galvin 14 April 1993); Re Brygel and Department of Justice (unreported Deputy President Macnamara 17 July 1996).

14. The meaning of the word "prejudice" was considered by Nathan J in Sobh v Police Force of Victoria [1991] 1 VR 41 and he held the same to mean, "impede or derogate from".

"Justice Nathan also stated that the qualifying word, `proper', imputes a notion of being appropriate to the administration of the law. Justice Ashley stated that `proper' means `strictly belonging to or applicable; that is, in conformity with rule; strict, accurate, exact, correct'. Therefore, there must be an impediment or derogation from the strict, exact or correct administration of the law in a particular instance. In the present case, an impediment to or derogation from the administration of the parole system would occur".

16. After having considered the evidence of Mr Lucas, and what the applicant has had to say on this matter, I agree with the conclusion of Mr Batskos.

17. In Re Fogarty and Office of Corrections (1989) 3 VAR 214, Judge Jones was required to consider a situation which was almost on "all fours" with the present application. There the applicant was also seeking documents which were put before the Parole Board. The head note summarises the documents as follows :

"The documents included memoranda between officers of the Office of Corrections, Parole Board reports and correspondence to and from psychiatrists concerning the applicant".

18. At page 227, Judge Jones commented on the evidence given by Mr Lucas, which appears to be very similar to the evidence given by Mr Lucas in the present application. His Honour stated :

"The provision of full and frank information is vital to the operation of the Parole Board. Information that the Board receives about prisoners is received in confidence. If it became known that reports to the Parole Board were made available to prisoners the extent and quality of reports would be affected and, as a result, the effectiveness of the Board? (sic) The practice is and has been at all relevant times to receive reports on prisoners, from whatever source, in confidence and not to make them available.

Authors of reports supply them to the Parole Board ... on the basis they will not be released".

19. In dealing with a report and two addenda to reports provided by a parole officer to the Board, Judge Jones stated that the documents were exempt pursuant to s.31(1)(a) and stated :

"Such reports are fundamental to the administration of the statutory parole system by the Parole Board. I am in agreement with Judge Rendit's view in Haigh that such administration is administration of the law within the meaning of s.31(1)(a). The proper administration of the law requires that the Parole Board be able to perform its functions and duties fully, and in fulfilling its duties, require and be able to obtain full, frank and meaningful reports from parole officers on prisoners and parolees. Such reports are essential if the Parole Board is to be able to carry out its parole tasks in accordance with the requirements of the law. It must be kept firmly in mind that what the Parole Board is about is the release and supervision of prisoners on parole. This is a vital function for the community and prisoners. If inadequate reports are furnished because parole officers are loath to report fully and state their frank opinions and recommendations because those reports could be obtained by the prisoner concerned the administration of the parole system and thereby the law would be prejudiced. Proper administration of the parole system by the Parole Board requires that a proper evaluation of a prisoner's suitability for release on parole and to continue on parole take place. If due to lack of sufficient information, such evaluation is defective the public in general is put at risk.

I am satisfied that these reports were provided in confidence to the Parole Board and are so treated by the Board. As I have said they are fundamental to its operation. If they were released to this applicant as a result of these proceedings I am satisfied that parole officers would be inhibited in the provision of reports to the Parole Board on the applicant and other prisoners. In this regard it is noted that the applicant would now be eligible for parole and would be under consideration by the Parole Board. ..... There would an inhibition which is likely to result in reports of officers being less frank and informative than they would otherwise be. There is a risk that officers might not be prepared to provide reports at all or the reports might be so bland that they will be of little value to the Parole Board in decisions it has to make about the applicant and other prisoners".

20. In considering the question of psychiatric reports, Judge Jones at pp.235-6 stated :

"It is clear that these reports have been provided to the Parole Board to assist it in making decisions about the parole of the applicant. They are regarded and treated as confidential to the Board. The comments I have expressed about the importance of full and frank parole reports to the Parole Board apply as much if not more to psychiatric reports such as these. ...... The comments on the effect of such reports not being provided also apply with as much if not more force to psychiatric reports. It is of critical importance that the Parole Board have comprehensive, open and frank psychiatric reports. The consequences would be serious if such reports were not provided because psychiatrists were concerned that their reports could be disclosed to the prisoner concerned. Such a situation would prejudice the administration of the parole system and consequently the administration of the law".

21. Everything Judge Jones has said about the situation in Fogarty's case, applies equally to this application and, in my view, his Honour is completely correct in his analysis of the facts and their application to s.31(1)(a).

22. The applicant has submitted, that he would have no objection to the names of the persons being deleted from the reports that were released. However, it is likely that even if the names were deleted, the applicant would then still be able to identify a lot of those people concerned and, in any event, to start deleting portions from these reports would be extremely difficult if not impossible because the information is so intertwined..

23. The applicant has submitted, that s.31(1)(a) does not apply because of the exception referred to in s.31(2)(d), that is :

"This section does not apply to any document that is .....

(d) a report on the degree of success achieved in any programme adopted by an agency for investigating breaches of, or enforcing or administering, the law;

if it is in the public interest that access to the document should be granted under this Act".

24. As to the submission relating to s.31(2)(d), Mr Batskos submits as follows :

"The reference to `programme' in section 31(2)(b) (sic) is a reference to the whole of the programme. In this case, the whole of the sex offenders treatment program conducted by CORE (the maker of document 2). It may apply to a report relating to a review of the whole of that program, but not to any report relating to a particular prisoner's participation in the program. In Re Fogarty the applicant submitted that a report from a doctor or other officer to the Board would be a report on the degree of success in the classification programme of the Office of Corrections in administering prison law in relation to the applicant. The AAT (Judge Jones) held that a report on a review of the classification system as a whole could fall into that category, but not a report such as the one in question, which related to a particular prisoner and not the system".

I agree with Mr Batskos' submission and, as a consequence, sub-section (2) does not assist the applicant in relation to this application.

25. In any event, even if the applicant's submission is correct in relation to the applicability of s.31(2)(d), Mr Batskos has submitted that it is not in the public interest that access be granted to the documents. On the other hand, the applicant has submitted that it is in the public interest that access be granted to the documents for the following reasons :

(a) there is no certainty that the documents are accurate and without the applicant seeing the documents that cannot be verified;

(b) it is in the public interest that prisoners entitled to parole be given the relevant documents and as a consequence they be entitled to comment on or correct any inaccuracies that may be in the documents;

(c) the therapists concerned may have a personal grudge or the like against a particular prisoner which may be reflected in the documents and the prisoner if he does not see the documents is given no chance to correct the same;

(d) as a matter of justice the applicant should have a proper chance to prepare his case and put any relevant matter before the Commonwealth Administrative Appeals Tribunal;

(e) as the Parole Board in large operates on a documentary system in determining applications the correctness or otherwise of those documents is of paramount importance;

(f) it is in the public interest that the Parole Board should be supplied with correct and accurate information and the only way that can be checked is by the applicant viewing the same;

(g) as the therapists have not supplied the applicant with information the only way he can improve himself is to know what is in their reports; and

(h) identifying names in documents could be removed from the documents if they were released.

26. On the other hand, the respondent has summarized its public interest grounds as follows :

"1. Disclosure of the documents would impede the full and frank disclosure of similar reports on information to the Adult Parole Board (`Board') in the future;

2. The absence of full and frank reports to the Board would affect the ability of the Board to function properly or at all given its reliance on receiving full and frank reports about prisoners;

3. The public has a substantial interest in the proper administration of the parole system. The absence of full and frank reports to the Board would cause the administration of the parole system and thereby of the law to suffer. It could result in defective decision making by the Board which could be to the detriment of prisoners and the community.

4. It is important that in providing frank and full reports, corrections officers are not rendered vulnerable to recrimination from existing prisoners or parolees;

5. There is no countervailing public interest in the documents being released - their release would only satisfy the curiosity or interest of an individual to the detriment of the administration of the parole system and broader corrections system".

27. It is noted, that there is overwhelming authority, that to release reports of this nature and type would be quite contrary to the public interest. Judge Rendit in Haigh's case stated, at p.13 :

"I am satisfied that if access were to be given to these psychiatric reports, no reports or inadequate reports would be provided to the Adult Parole Board and to the Minister and that being so, the disclosure of these reports would be contrary to public interest".

28. Likewise, Judge Jones in Re Fogarty at p.240 stated :

"There is a public interest in ensuring the security and good order of prisons and the welfare of prisoners and prison staff. It is in the public interest that the parole system and classification system operate effectively. To do so they require a free flow of full and frank information so that the decisions are in the public interest".

29. Mr Batskos, also summarized the view of Deputy President Galvin in McCubbin's case in the following terms :

"* That the public has a substantial interest in the proper administration of the parole system.

* That the frank and full flow of information in the reports to the Board is important for the purposes of the Board.

* That the evidence and the documents themselves lead to the conclusion that it is more probable than not that release of the kind of information in the documents would have the likelihood of causing officers to omit from their reports information which, whilst provoking reaction from parolees concerned were they to see it, would be of undoubted value to the Board in the performance of its duties".

"It is important that the Board be well informed and that, for the purpose, reports of officers be as frank and full as possible. It is also important that, in providing frank and full reports, officers are not rendered vulnerable to recrimination from parolees. Taken together or alone, those two considerations militate against disclosure.

The reports of Parole Officers are to be viewed in much the same way as the psychiatric reports considered by the Court in Haigh's case (supra) - viz as vital elements in the making of proper determinations in the administration of the parole system. In my opinion, to inhibit officers in regard to the expression of information in their reports would be neither in the public interest nor that of prisoners all of whom have an interest in the best possible operation of the parole system".

30. Thus I am of the view, that for the purposes of s.31(2) it is not in the public interest that access be granted to either of the documents in dispute.

SECTION 50(4) PUBLIC INTEREST OVERRIDE

31. It was made clear by the Court of Appeal in Department of Premier and Cabinet v Hulls (unreported 1999), that the override cannot be invoked unless the public interest requires the release of the document. That is, demands or necessitates disclosure. In this regard, for the reasons that I have already stated in relation to the public interest matters in s.31(1), I am of the view that the public interest neither requires nor demands that these documents be released.

32. Further, Mr Batskos correctly makes the distinction that a personal interest by the applicant in the release of a document, does not equate to a public interest. See Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. In this particular instance, while the applicant may have a real personal interest in having the document released, I am not satisfied that there is any public interest in the document being released at all, in fact, for the reasons I have already stated, in my view the public interest militates against the documents being released. Thus, it follows that the public interest does not require or demand that the documents be released.

33. Therefore, I am of the view that not only has the exemption claimed pursuant to s.31(1)(a) been made out but that the public interest override in s.50(4) has not been made.

34. Bearing in mind the findings that I have made in relation to s.31(1) and s.50(4), it is not necessary for me to consider the other grounds of exemption which are claimed and as a consequence, release of the documents should be refused and the decision affirmed.

I certify that this and the preceding 14 pages are a true and correct copy of the reasons for decision of Mr Robert W Davis, Presiding Member of the Victorian Civil and Administrative Tribunal.

Information Act 1982

Lomax v DOJ [1999] VCAT 2125

At a glance

Court

Decision date

Source

Judgment (93 paragraphs)

Lomax v DOJ [1999] VCAT 2125 (31 December 1999)

Parties

Legislation Cited (1)

Cases Cited (1)