Victorian Civil and Administrative Tribunal|2004-07-02

Musso v Department of Justice [2004] VCAT 1268 (2 July 2004)

Freedom of Information Act 1982 - incident in prison - investigation - various exemptions claimed - s.33(1) - s.25.

Reasons for decision delivered. Formal minutes to be provided by parties subject to agreement.

1 These applications, which were heard before me as the one case and to which I shall refer as if they were the one case, come before me pursuant to s.50 of the Freedom of Information Act 1982 ("the Act"). They are brought by three men ("the Applicants") who seek to review a decision of the Department of Justice ("the DOJ") taken on 7 December 2002. This decision was one to refuse to the Applicants access to certain documents on the grounds of exemptions under the Act, following a request by the Applicants to the DOJ for documents essentially relating to an incident at Port Phillip Prison on 19 November 1999 ("the incident"). At the time of the incident the Applicants were prisoners held at Port Phillip Prison. As I understand the situation, they are alleging that they sustained physical injuries during the incident, and civil litigation concerning this is underway.

2 I am conscious of the objects of the Act as set out in s.3. I am conscious of the method of interpretation of the Act to be adopted as set out in s.3(2). I am aware of the various authorities, which could be summarised as standing for the proposition that it is proper to give the relevant provisions of the Act a construction which would further, rather than hinder, free access to information and that the Act is to be interpreted generally in favour of access but not so as to override specific provisions. I am also aware that the DOJ bears the onus of proof in attempting to establish that the documents are exempt documents. I am also conscious of statements that have been made both inside and outside Parliament by Members, including the Attorney-General of the present Government, concerning the desirability of there being openness and accountability in Government and by various agencies. I have borne the above matters in mind, and have applied them, in coming to a decision in the present case.

3 I am also conscious of the fact that some care has to be taken by me in formulating the wording of this judgment so that details of the information sought are not revealed. I am aware that, should the result be in favour of the Applicants, I should not render any appeal process effectively useless by "letting the cat out of the bag" in my reasons. Similarly, should the result fall the other way, I should not descend into such detail as to give the Applicants the information which they seek, whilst at the same time finding against them.

4 As indicated to the parties on more than one occasion, this hearing was not in the nature of a Board of Inquiry or Royal Commission into the behaviour of prisoners, the methods adopted by prison officers, the effects of the privatisation of the prison system or the like. Whilst some factual material is necessary in order to place an application pursuant to the Act in context, the ultimate decision is one relating to the operation of the Act and access to documents. There will be no finding in relation to the merits of the allegations made by either side.

5 Freedom of information cases generally, and ones like this in particular, often involve considerable emotion. Even in a case such as this, where each side is represented by most experienced and competent counsel, there is a tendency, at times, for the matter to drift into the area of the merits of the grievance which lies behind the application. However, the issue to be ultimately determined relates to documents and access to them. Accordingly, I repeat that I am making no finding of any kind in relation to the merits of the dispute which forms the background to this application, and matters of fact to which I refer are assumptions made solely for the purpose of placing this application in context.

6 Mr Ginnane SC and Mr Gurr of counsel appeared on behalf of the Applicants. Mr Dennis of counsel appeared on behalf of the DOJ. The case was conducted over a number of days and, because of the necessity for some witnesses to give evidence from Port Phillip Prison by means of the video link when it was available, the cases were not presented in the order that might be anticipated, and some interruption to the flow of witnesses was required. This is in no way a criticism of those presenting the case, but was made necessary because of practical concerns. Further, a substantial interruption was required so that some persons could be notified pursuant to s.53A of the Act.

7 In any event, those to give evidence in the presentation of the Applicants' case were Messrs Musso and Iaquinto, Messrs Edwards & Devine (also prisoners who were witnesses to some of the events on 19 November 1999 and who have some interest in the matter) and Mr Singh (a person with considerable interest in prisons and prison reform and who could be described as a public interest witness). On behalf of the DOJ, evidence was called from Ms Read, a Duty Supervisor at the Prison and, whilst not a witness to the actual events, one familiar with prison operations.

8 Each side also submitted legal contentions in writing and made oral submissions.

9 As indicated, the following findings are to be treated as factual assumptions made solely for the purpose of placing this application in context.

10 On 19 November 1999 there was a considerable disturbance in Port Phillip Prison. A prisoner was stabbed. A lock-down ensued. A group of prisoners, including the Applicants, were forcibly extracted from their cells in Swallow Unit for the purpose of relocating them in Charlotte Unit, which is apparently more secure. This extraction was carried out by members of the Tactical Operations Group ("TOG"). It is alleged, in essence, that, during this extraction and relocation, excessive force was used by TOG, and that prisoners suffered injuries as a result.

11 At the time, Port Phillip Prison was operated pursuant to contract by an entity known as Group 4. The contractual arrangements are quite complicated, and do not require examination or comment in this decision. In any event, Group 4 commissioned an investigation into the incident. This investigation was carried out by Mr John B Barclay ("Barclay") who interviewed a considerable number of people, including both prisoners and prison officers; arrived at certain conclusions; and made recommendations. Barclay compiled four reports ("the Barclay Reports") to which are appended various statements, notes of interviews, records of interview and the like. The Barclay Reports also contain summaries of those interviews. Considerable portions of the Barclay Reports have been released and there is no dispute concerning them. Other portions have not been released and are in dispute.

12 In addition, and as would be expected, there exists a considerable volume of paperwork and documentation in relation to the whole affair. This includes various Use of Force Report forms, memoranda, other reports and the like. Again, a considerable portion of this material has been released and is not in dispute. Other documents, or part documents, are claimed to be exempt and there is argument concerning them. In several instances it is only names or identifying material for which exemptions are claimed, but even this has the effect of placing a large number of documents in dispute, particularly as the Barclay Reports have appended to them numerous documents.

13 Thus, there are many documents to be considered. I shall not list them here. Mr Dennis, in conjunction with Mr Ginnane, kindly provided a document headed "Amended Schedule of Exempt Documents" which is of great assistance in establishing what is in dispute and what provisions are relied upon in support of an exemption. Rather than setting out all those particulars in the body of this judgment, I have added the Schedule as an annexure.

14 Against that brief outline of the background of the matter, I shall now turn to the case as presented by each side. In addition to the evidence called, each counsel spoke at some length to detailed written submissions and referred to and supplied many authorities. Again, I shall not set these out in detail, but will attempt to set out a very brief précis of them. I shall deal with the cases in the order in which they were presented, but not use the language or sequence employed. I should point out that Mr Ginnane and Mr Gurr had availed themselves of the opportunity to inspect the documents in dispute pursuant to the provisions of s.56 of the Act. When this can be done, the task of the Tribunal is made considerably simpler.

15 The case for the Applicants could be summarised as follows.

16 The DOJ has the burden of establishing that exemptions should operate. It has failed to discharge that burden.

17 In relation to the operation of s.33(1), it is conceded that items such as names and signatures are "personal affairs" for the purposes of the Act. However, the question that then arises is whether the disclosure of such information can be characterised as unreasonable. The individual's right to privacy must be balanced against the community's right to access, bearing in mind various factors such as the Applicants' interest and the public interest in the information.

18 In a situation such as this, where there are serious allegations concerning the misuse of force and coercive power, and where there has been a detailed investigation into such misuse, the results of the investigation should be released in full, and should include the names of all those directly involved (insofar as the documents contain names of people not directly involved, a disclosure of those names is not sought). Those against whom allegations are made and who have been investigated should not be entitled to anonymity. The names of persons entitled to wield such power should be available to the public.

19 There is considerable public interest in the proper conduct of the prison system, and this has been recognised in a number of previous decisions. The Applicants have a direct interest in knowing who was involved and what those individuals said. That some violence did occur and that some injuries were sustained by the Applicants cannot be denied, so that they have an immediate interest in these matters. Furthermore, they have expressed an interest in ensuring that such a situation does not arise again.

20 There is no evidence that the prison officers concerned need fear recriminations from the Applicants or those associated with them. As is evident, the Applicants have pursued the matter along proper legal avenues. In that regard, the fact that they have on foot civil proceedings in which they seek damages for the injuries sustained by them does not militate against their right to obtain access to documents under the Act.

21 Whilst it is positively asserted that the various names should be disclosed, if necessary s.25 of the Act could be applied so as to delete names and identifying material and render documents no longer exempt.

22 Exemption is also claimed pursuant to s.38 of the Act which then requires consideration of s.30 of the Corrections Act 1986. Insofar as prisoners are named or identified in documents, it is conceded that such information is confidential information for the purposes of that section. However, this is subject to the operation of s.50(4) of the Act - the "public interest override" - and in some instances prisoners have exhibited a preparedness to be named. Information which identifies prison officers carrying out their duties does not fall within s.30 of the Corrections Act. Further, the documents do not contain information concerning the operation of security measures for the purposes of s.30(1)(f). Apart from the fact that there is little, if anything, in the documents that deals with what could genuinely be described as security matters, the incident took place more than four and a half years ago. Accordingly, s.30 of the Corrections Act has no application other than in relation to the identity of the prisoners, and it is subject to s.50(4) of the Act in any event.

23 The DOJ also places reliance upon s.35(1)(b). However, there is no satisfactory evidence that disclosure of the information sought would be reasonably likely to impair the ability to obtain similar information in the future. In relation to statements made or information supplied by the prison officers, they were in fact exonerating themselves. There is no evidence that the information which the prison officers were passing on to Barclay was meant to be confidential. They were clearing their names, rather than passing on admissions which could be used against them. The reference to confidentiality on the face sheet of the Barclay Reports does not mean that the information contained within the Reports falls within s.35(1)(b).

24 Reliance is also placed by the DOJ on s.31(1). The DOJ has not established that it is reasonably likely that disclosure of the documents could prejudice the proper administration of the law. In addition, the documents are such that s.31(2) would operate so as to negate the operation of s.31(1). Further, it is not conceded that the documents concerning which reliance is placed upon s.31(1)(c) come within the operation of that subsection.

25 With the exception of the exemptions claimed pursuant to s.33(1), the "public interest override" operates so as to overcome any other exemption. The public interest in the proper administration of prisons is well known and has frequently been accepted by the courts and by this Tribunal. Unless the documents in dispute are released in toto, details of the conduct of the investigation, reports by the relevant prison officers, and issues of accountability will remain hidden from the public.

26 Under the umbrella of these submissions, the documents were then dealt with on an individual basis, with reliance placed upon the arguments advanced above.

27 The case for the DOJ could be summarised as follows.

28 The case is really quite a simple one if arguments concerning merits, and the emotional issues raised by them, are left to one side. The DOJ has been forthcoming with the supply of documents, even though this has been a lengthy and costly exercise. There has been no "cover-up". Its interest has been in protecting the rights of the individual and the integrity of the prison system. This is to be contrasted with the approach of the Applicants, who basically are intent only on furthering their interest in their civil litigation. If the Applicants were genuinely interested in obtaining documents in order to advance reform of the prison system or ensuring that such an incident did not occur again, they would also have taken such steps as complaining to the Ombudsman, reporting matters to the police, making complaints about the Barclay Reports or the like. These things have not occurred.

29 Whilst it is admitted that there is general public interest in the proper administration of prisons, it is not conceded, and is denied, that there is public interest in the release of the parts of the Barclay Reports not yet disclosed. It is further asserted that the Applicants who gave evidence have serious criminal records, as do their witnesses. The Applicants who gave evidence have been convicted in relation to serious crimes of violence.

30 Reliance is placed on s.33(1). The authorities establish beyond doubt that the identification of a person's identity is information relating to the personal affairs of that person, and s.33(9) of the Act sets this out. Information sufficient to identify a prison officer who is carrying out the duties of his employment falls within s.33. S.33 is not subject to the operation of s.50(4).

31 What occurs in relation to prisoners is also a matter relating to the personal affairs of the prisoner. Accordingly, the argument boils down to a question of what is unreasonable disclosure. Various factors have to be balanced in this regard, bearing in mind that disclosure will be to the world at large, and also bearing in mind that it may still be unreasonable to disclose a document even if the person seeking it has some knowledge of its contents. In performing that balancing exercise, the fact that the Applicants are seeking the information in order to assist their civil litigation is something which should carry minimal weight in their favour.

32 It is reasonable to assume that the prison officers involved would not want their identities disclosed, even if their names may be known to the Applicants. Their identities and the roles which they played should not be confirmed either to the Applicants or to the world at large. Consideration must be given to s.33(2A). Bearing in mind what allegedly occurred in the incident and the history of criminal violence of some of those involved, the risk of physical retaliation to prison officers, and possibly to some other prisoners, is a real one. S.33(2A) militates strongly against the disclosure of personal information. It would be unreasonable so to do. Persons should be able to write reports and carry out their duties without their privacy being invaded and without incurring the risk of recrimination. This is particularly so when there is no apparent purpose for the release of the information.

33 Reliance is also placed upon s.38 of the Act and s.30 of the Corrections Act 1986. Some of the documents contain information relating to the personal affairs of a prisoner, and such information can only be released for specified purposes. Other documents include information relating to the operation of security measures in the prison, and also should not be released.

34 In some instances reliance is placed on s.35(1)(b). In the present case information was disclosed in confidence. If it were known or suspected that information given to someone such as Barclay did not remain confidential, the obtaining of such information in the future would be impaired to a degree beyond a trifling or minimal impairment. The nature and sensitivity of the information, and the circumstances in which it was provided, indicate that it was intended to be given in confidence. If it is now disclosed, it would be reasonably likely to impair the ability of the DOJ or a relevant agency to obtain similar information in the future. Both prisoners and prison officers would be most unlikely to co-operate in the investigation of such an occurrence in the future if it was thought that there was a real risk that their confidential communications would later be released to other persons or to the world at large.

35 Some documents contain information the disclosure of which would be reasonably likely to prejudice the proper administration of the law and therefore are exempt pursuant to s.31(1)(a). The term "the administration of the law" embraces the administration of the prisons. The documents do not fall within the scope of s.31(2) and, even if they did, it is not in the public interest to give access to them.

36 Certain documents are also exempt because of the operation of s.31(1)(c). Their disclosure would be reasonably likely to enable someone to ascertain the identity of a confidential source of information in relation to the administration of the law. Given the circumstances of the present case, disclosure of the identity of the persons who provided information is contrary to the public interest and exposes the persons who supplied the information to the real risk of recriminations.

37 In relation to s.50(4) of the Act, firstly it does not apply to documents exempt pursuant to s.33. Secondly, the public interest must require, in the sense of demand or necessitate, the release of the document. Thirdly, the consideration of public interest must be sufficiently strong as to override the factors that confer exempt status. Whilst there may be public interest in the proper administration of the prison system, the overwhelming bulk of the documents have been released and there is no public interest requiring release of the parts now claimed to be exempt.

38 In summary, in relation to s.33(1) the question of reasonableness or unreasonableness is really one of balancing the risk of recriminations and the right to privacy against a desire on the part of the Applicants to get further information to assist their civil litigation. This tilts the balance strongly in favour of unreasonableness. The other grounds for exemption have been made out, and there is no public interest of sufficient magnitude to override those exemptions. S.25 should not be applied so as to edit those documents where deletions have not previously been made and where exemption of the entire document is claimed. This would be impractical. Furthermore, without going into detailed evidence concerning the workings of the prison system, there would be risks that important and confidential information concerning identities and prison management could be unwittingly passed on to persons who should not, in the interest of safety and security, possess such information.

39 As stated, a great many authorities were referred to during the course of argument. I shall not refer to them all. Many stand for or support propositions which are well established in this area of law.

40 One decision to which I shall now refer is that of Deputy President Galvin in Re Lapidos and Office of Corrections (No. 4) 4 VAR 283. I refer to that decision in particular because of some similarities between that case and the present case, and because the approach adopted by Deputy President Galvin is basically the approach which I intend to adopt. Whilst the facts in Lapidos were more bizarre, it was also concerned with the behaviour of prison officers and an inquiry into their conduct. The majority of the exemptions there relied upon are also exemptions relied upon in the present case. Although there may be marked similarities between that case and the present case, I am not saying that I am bound by the decision. Rather, I am saying that the approach adopted in that case seems to me to be essentially correct, and, in the broad, I intend to adopt a similar approach.

(a) There is widespread public interest in the proper administration of the prison system - apart from the fact that there was little if any argument concerning this, the various authorities, in addition to common sense, would support such a proposition. For example, I would refer to the decision in Re Coburg Brunswick Community Legal and Financial Counselling Centre v DOJ (1998) 15 VAR 208.

(b) There is public and community interest in the incident. I refer not only to the evidence of the Applicants, but also to that of their witnesses, and to the substantial article contained in the Herald Sun of 5 January 2004 and tendered as part of the witness statement of Mr Devine.

(c) I accept that at least two of the Applicants and one of their witnesses have lengthy criminal histories which include convictions for crimes of violence.

(d) Common sense would dictate that there is probably a real and understandable fear on the part of certain prison officers and certain prisoners in relation to recriminations should their identities and their roles in the incident be made public. Such fear could well extend to the fear of violent or physical recriminations. Of course, I am not saying that such recriminations would be carried out by the Applicants or their witnesses. However, it is to be remembered that disclosure, once ordered, is to the world at large.

(e) Many of the documents contain information relating to the personal affairs of a person within the meaning of s.33 of the Act. This information includes names and other information by which a person's identity can be determined. The contrary view seems to me to be one that is scarcely arguable.

(f) The events which are the subject of this application occurred in excess of four and a half years ago. Whilst, as pointed out by Mr Dennis, many of us may have little real idea as to what goes on inside a prison, the passage of time seems to me to have removed some of the potential hazards to security associated with the release of information which hazards arguably earlier existed.

(g) The protection of the identity of those who might have provided, or might even be thought to have provided, information, however harmless, to the authorities is in both their interest and the public interest.

(h) I do not accept that the application of s.25 of the Act is inappropriate. Some documents have already been edited prior to release. S.25 is often used in cases such as this, and, indeed, was so used in Lapidos. Its use seems to me to be appropriate.

42 Against the background of those general findings, I make the following specific rulings.

43 As is probably evident, I am of the view that the exemptions claimed pursuant to s.33(1) of the Act have been made out. The documents do contain information relating to the personal affairs of persons. The DOJ has satisfied me that, after balancing the various factors to be considered, disclosure of the information would be unreasonable. I do not accept Mr Ginnane's argument that those who possess the power to wield coercive force should be named. Indeed, the public interest in the proper administration of prisons may demand the opposite. I also accept that it is unlikely that the particular prison officers would wish their identities to be disclosed. Both the fear of and the possibility of recriminations which may be violent are factors to be taken into account. Whilst appreciating that s.50(4) does not operate in relation to s.33, as indicated above it does not seem to me that it is in the public interest that the names of either the relevant prison officers or prisoners be disclosed and I find that the DOJ has discharged its burden in relation to exemptions claimed pursuant to s.33.

44 I shall not go through each document in turn. The relevant information has already been deleted from all documents in dispute. Of course, some of those documents contain information or material over and above names or identifying features, and other exemptions are claimed in relation to them. My ruling at this stage is solely in relation to s.33(1). Some of the information relating to personal affairs is readily identifiable, has been so identified, and the relevant deletions made. This is particularly so in relation to documents 13 to 42. In relation to the Barclay Reports, in addition to names and some identifying features in some statements having been deleted, in some instances exemptions have been claimed in respect of whole documents. As shall become apparent, I otherwise find that exemptions have not been made out. Accordingly, there are documents and statements in which, because there has been total non-disclosure, no attempt would appear to have been made to delete individual names and identifying material. In relation to such documents, this may lead to arguments concerning what is and what is not information from which a person's identity, address or location could reasonably be determined. If no agreement can be reached in this regard, I will hear further argument and make a further determination.

45 As I am determining that, pursuant to s.25 in conjunction with s.33, both the deletions already carried out by the DOJ should remain and that there should be further deletions in relation to relevant persons in the other documents in dispute, there is no need to consider the operation of some of the other exemptions upon which reliance was placed insofar as they also relate to the identity of persons. Accordingly, whilst I have taken into account the question of fear of recriminations in relation to the reasonableness of disclosure, I make no specific finding in relation to s.33(2A) other than it has been so taken into account. I probably need not make any specific finding in relation to s.38 of the Act and s.30 of the Corrections Act 1986, although my impression is that, at least in relation to s.30(1)(d), the exemption has been made out and that s.50(4) of the Act would not operate so as to defeat that exemption. I would have a similar view concerning s.31(1)(c) of the Act.

46 In my opinion, s.50(4) does operate so as to defeat the exemptions otherwise claimed and require that access be granted in relation to those documents where exemptions are claimed on the bases of what could be described as security and the proper administration of the law. In this regard I refer to exemptions claimed pursuant to sections 31(1)(a), 35(1)(b) and s.38 of the Act, the latter being read in conjunction with s.30(1)(f) of the Corrections Act 1986.

47 As stated, there is widespread public interest in the proper administration of the prison system and the liberty and rights of the individual. I refer again to the remarks of Kellam J and Deputy President Galvin in Re Coburg Brunswick. Where there have been allegations of violence and misconduct by prison officers, and a detailed investigation has been carried out, it seems to me that the public interest requires that access be given to documents relating both to the relevant incident and to the investigation, subject, as stated, to the protection of the privacy of the individuals involved. In weighing up considerations in relation to these matters, the passage of time does seem to me to be relevant. Despite Mr Dennis' urgings, I am not greatly impressed by the threat posed to security by releasing, for example, information concerning the movements of an ambulance in excess of four years ago, or the somewhat neutral location of an implement which was found. The type of information contained in the disputed documents in this case seems to me to be vastly different from the type of information sought in cases such as Knight v CORE. In my view, exemptions based upon these provisions have not been made out, and s.50(4) would prevail in any event. In this regard, I might add that it seems to me to be in the public interest that the accounts of eyewitnesses to these events be available for inspection by and on behalf of the general public, even if the identity of the eyewitnesses is not disclosed.

48 Accordingly, I determine that access be granted to all documents in dispute, those documents having been edited pursuant to s.25 of the Act so that there has been deleted from such documents all information identifying any persons or disclosing their address or location or from which any persons identity, address or location can reasonably be determined. The persons to whom I am referring are the prison officers and prisoners whose names have already been deleted in the documents in dispute, or whose names would have been so deleted if the entire document had not been withheld. Obviously I cannot publicly identify them with any greater precision, but I am confident that counsel can establish those to whom I am referring. This is another of the benefits which can result from inspection of exempt documents pursuant to s.56. The type of identifying information to which I am referring includes such things as cell numbers and locations. Again I am hopeful that this information which is to be deleted can be established and agreed upon, but, as stated, I shall certainly hear further argument if such agreement cannot be reached. The only thing I might add is that page 47 of the documents in dispute is one page to which I feel particular attention might be paid.

49 In conclusion, the decision of the DOJ of 7 December 2002 will be set aside and the documents in dispute will be released subject to deletions pursuant to s.25 of the Act of information of the type described in s.33(9) of the Act and as referred to above. However, I make no specific orders at this stage and would ask the parties to prepare minutes giving effect to the above findings. If agreement as to the minutes cannot be reached, I shall hear further argument.

Musso v Department of Justice [2004] VCAT 1268

At a glance

Court

Decision date

Source

Judgment (60 paragraphs)

Musso v Department of Justice [2004] VCAT 1268 (2 July 2004)

Parties