Plaintiffs v Defendant

Supreme Court of Victoria|2007-11-29|Before: OSBORN J

Confidential documents of Corrections Victoria obtained by the Defendant - injunctive relief sought to restrain publication - right to restrain publication dependent on public interest - net public interest affected by competing considerations - question of fact with respect to each document - public interest in free speech with respect to governmental action and specifically in ventilating questions of misconduct or inaction in administration of criminal justice system - outweighed in some instances by public interest in the security and proper administration of prisons.

2 In 2007, the mislaid files came into the possession of the defendant. The defendant conducts the business of a television network and formed the view that it wished to publish portions of the documents. Upon realising that the files contained documentation of a potentially sensitive and apparently confidential nature, however, the defendant acted entirely properly and advised the first plaintiff ("Victoria") of its possession of the documents and sought Victoria's response to their publication.

3 Officers of the Victorian Department of Justice then reviewed the documents and identified some as public and others as confidential.

4 It appears that this process generated some dispute as to what should be regarded as confidential. Victoria then obtained interim orders from this Court restraining publication of the material in respect of which it claimed confidentiality.

5 The parties then joined issue by way of this proceeding as to Victoria's right to restrain publication of the documents.

6 In the course both of interlocutory steps and of the hearing before me, there has been further refinement of the position of the parties. First, Victoria has more precisely defined the documents in respect of which it claims confidentiality. Secondly, the defendant by a process of progressive redaction has sought to confine the dispute with respect to such documents to edited components of certain documents only.

7 The second plaintiff asserts confidentiality with respect to one of the documents in issue being a report prepared for the benefit of the Western Australian Department of Justice. In respect of that document the defendant seeks only to publish a statement as to the character of its contents, but not to further publish the content of the document. It is this proposed statement which remains in issue.

8 In broad terms the documents relate to the following categories of subject matter:

(a) The history of a particular prisoner who has alleged she was the subject of sexual misconduct by a prison officer while in custody;

(b) The history of the departmental response to this allegation;

(c) The history of allegations concerning a prison officer's involvement with an ex-prisoner after the release of the prisoner from custody and related issues of alleged similar impropriety;

(d) The history of the Department's response to these allegations;

(e) The departmental investigation into the suicide of a prisoner whilst in custody;

(f) A report prepared for the Western Australian Department of Justice by officers of the Victorian Department of Justice reviewing security at a correctional facility in Western Australia.

9 The original documents in issue have been returned to Victoria, but copies have been retained by the defendant.

(a) Permanent injunctions restraining the dissemination and publication of the confidential documents;

(b) Declarations that the confidential documents and the information in them is confidential to Victoria; and in one instance Western Australia; and

11 The plaintiffs' claim was supported by evidence from a series of witnesses, directed to demonstrating that the documents in issue, comprise matters the disclosure of which would adversely affect the public interest in a series of respects.

12 It was ultimately submitted that the evidence disclosed the following public interests:

(a) the public interest in the maintenance of confidentiality over private information, including but not limited to health records;

(b) the public interest in the good order, management and dynamic security of prisons;

(i) the security and wellbeing of individual prisoners and ex-prisoners;

(d) the public interest in minimising the incidence of deaths in correctional custody;

(e) the public interest in the orderly coronial investigation process; and

(f) the public interest in the maintenance of candour of confidential communications between the States.

(a) the public interest in freedom of information concerning governmental activity generally;

(b) the public interest in knowing of matters occurring in prisons and in particular misconduct within prisons;

(c) the public interest in knowing of the governmental response or lack of response to incidents involving alleged or actual misconduct within prisons;

(d) the public interest in protecting prisoners from abuse by prison staff;

(e) the public interest in the good order and management of prisons generally;

(f) the public interest in reducing the incidence of suicide in prisons;

(g) the public interest in maintaining an appropriate level of security in prisons.

14 The fact that the documents have passed to a third party does not determine their confidentiality. In Johns v Australian Securities Commission[1] Gaudron J stated:

The jurisdiction to grant equitable relief with respect to confidential information is not in doubt. Nor is it in doubt that the basis for the jurisdiction lies in an obligation of conscience. The question whether there is an obligation of that kind ordinarily depends on the "circumstances in or through which the information was communicated or obtained."[2] However, other circumstances may be relevant when it is claimed that persons who were not parties to the original confidence are bound by it or come under a duty with respect to the information involved.

It has been held, both in Australia and in the United Kingdom, that a third person who comes by information innocently may be restrained from making use of it once he or she learns that it was obtained in circumstances involving a breach of confidence.[3] And it was conceded by counsel for the 6th and 7th respondents that the law in this regard is as stated by Lord Denning MR in Fraser v Evans[4], namely, that "(e)ven if (a recipient of information) comes by it innocently, nevertheless once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence." The law of confidence has not developed to the point of identifying in a definitive or comprehensive way the matters which determine whether a duty of confidence has devolved onto third parties.[5] However, the question whether there is or should be a duty on third parties must depend, at least in part, on the extent to which the information in question is generally known or available.[6]

15 I am satisfied that each of the documents which remain in issue in this proceeding was produced in circumstances where the maker intended it to remain confidential. I am further satisfied that the documents which have found their way into the defendant's hands were intended to be kept in confidence by the Department of Justice. Such documents have only come into the hands of the defendant as the result of human error by officers of the Department of Justice or contractors acting for or on behalf of the Department.[7]

16 The confidential character of the information contained in the documents may still be in issue, however, by reason of the matter last referred to by Gaudron J. In some instances it is the defendant's case that the information contained in the documents is already substantially within the public domain. The question arises with respect to these documents as to whether the information "is so generally accessible that, in all the circumstances, it cannot be regarded as confidential."[8]

17 Putting this issue to one side, it was not disputed that the principles otherwise critically governing the present case were stated by Mason J in the Commonwealth of Australia v John Fairfax & Sons Ltd ("the John Fairfax case").[9] It was accepted that even if the plaintiffs could show that the information contained in the documents in issue was of a confidential nature its publication should not be restrained unless it is in the public interest to do so. The relevant principles were stated by Mason J in the John Fairfax case as follows:

However, the plaintiff must show, not only that the information is confidential in quality and that it was imparted so as to import an obligation of confidence, but also that there will be "an unauthorised use of that information to the detriment of the party communicating it."[10] The question then, when the executive government seeks the protection given by equity, is: What detriment does it need to show?

The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.

It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.

The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.

18 His Honour went on to approve the statement of Lord Widgery LCJ in Attorney-General v Jonathan Cape Ltd:[11]

The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.

19 The statement of principle by Mason J above explicitly acknowledges the public interest in free speech with respect to the actions of government generally as an incident of a democratic society.

20 The significance of that public interest may also be regarded as having been affirmed in this State by freedom of information legislation.[12]

21 I accept that, as the Defendant submits, there is both a general underlying interest in the free publication of information bearing on governmental action and that there may be a special public interest arising with respect to information concerning activities of Government which bear directly on the liberty of the subject.

22 Allegations of misconduct or inaction in the administration of the criminal justice system raise questions of particular sensitivity. In Australian Broadcasting Corporation v O'Neill[13] Gleeson CJ and Crennan J stated:

... In our society allegations of misconduct are sometimes made against the police and public officials. ... It may well be in the public interest that inaction on the part of the police and prosecuting authorities be called publicly into question. It is certainly in the public interest that it is open to be called into question.

Their Honours subsequently affirmed the principle that:

The public interest in free speech goes beyond the public benefit that may be associated with a particular communication.[14]

23 The public interest in free speech is recognised despite the obvious fact that free speech may cause collateral damage to society. In Australian Broadcasting Corporation v O'Neill[15] Gummow and Hayne JJ emphasised that the rules with which they were concerned in respect of the prior restraint of allegedly defamatory publication, were the product of striking a particular balance between competing interests:

The stance taken by the courts against prior restraint was not adopted in innocence of the malign influence, on occasion, which may be exerted by media of mass communication. Indeed, in R v Shipley [16], Lord Mansfield, after speaking of the liberty to print without previous licence, continued:

"The licentiousness of the press is Pandora's Box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State."

As in other fields[17], the policy of the law struck here represents a particular balance between competing interests. With respect to tortious liability to be determined at trial, that balance for this case is struck by statute, the 1957 Act.

24 In R v Home Secretary, ex parte Simms[18] a prison authority denied a request by journalists for access to prisoners convicted of murder, unless the journalists signed undertakings not to use information obtained on visits for professional purposes. The prisoners' applications for leave to appeal against conviction had been refused by the Court of Appeal but they continued to protest their innocence. They were visited in prison by journalists who had befriended them and were interested in publicising their stories. The decision to refuse access to the prisoners, save on the basis set out above, was set aside. Lord Steyn weighed the risk to discipline and order in prisons against freedom of expression supporting access to justice for prisoners:

The two new affidavits make a case that any oral interviews between prisoners and journalists will tend to disrupt discipline and order in prisons. In my view these affidavits do not take sufficient account of the limited nature of the applicants' claims, viz to have interviews for the purpose of obtaining a thorough investigation of their cases as a first step to possibly gaining access through the Criminal Cases Review Commission to the Court of Appeal (Criminal Division). The affidavits do not refute the case that until 1995 such interviews enabled a substantial number of miscarriages to be undone. Moreover they do not establish that interviews confined to limited purposes caused disruption to prison life. In any event the affidavits do not establish a case of pressing need which might prevail over the prisoners' attempt to gain access to justice: see the decision of the Court of Appeal in Reg. v Secretary of State for the Home Department, ex parte Leech,[19] the correctness of which was expressly accepted by counsel for the Home Secretary.[20]

25 The general public interest to which I have referred requires that the onus is upon the plaintiffs to satisfy the Court that the public interest demands non-disclosure.[21]

26 In the present case the plaintiffs assert probable prejudice to the workings of government and probable prejudice to individuals belonging to classes affected by the workings of government, whose interest in confidential material it is in the public interest to protect.

27 The plaintiffs and the defendant thus rely upon competing considerations of the public interest. The resolution of the appropriate balance may not be easy. As Mason J stated in the John Fairfax case:[22]

There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and expressing its opinion, outweighs the need to protect confidentiality.

28 The notion of net public interest or net community benefit as a determinant of decision making is not unique to this area of the law. Thus, in a criminal trial the public interest may require the exclusion of evidence obtained at a price which is unacceptable having regard to prevailing community standards.[23]

29 Speaking of public interest immunity with respect to the production of documents in evidence in civil litigation, Gibbs ACJ stated in Sankey v Whitlam:[24]

The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer as follows:

"There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done."

It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. [footnotes omitted]

30 In Victoria v Seal Rocks Pty Ltd[25] Ormiston JA (with whom Phillips and Buchanan JJA agreed) stated: [26]

In my opinion, therefore, public interest immunity in a document or other communication is a right by way of an immunity or a privilege which enures in the body politic and indeed in the nation (or relevant polity) as a whole, and not merely in the executive, being designed to protect the operation of the instruments of government at the highest level and for the benefit of the public in general, subject only to a court's reaching a conclusion to the contrary on sound grounds that no other public interest, especially in the administration of justice, should prevail in the particular circumstances.

31 These principles were applied in the Royal Women's Hospital case, [27] a decision which highlighted the distinction between the public interest in achieving objects of public policy and the public interest arising from the need to ensure the effective functioning of the executive government and the public service. That distinction is potentially relevant to the process of the weighing up of the public interest in the present case. Both kinds of consideration have been raised by the plaintiffs.

32 Public interest immunity is also invoked by the law governing the exclusion of evidence of the identity of police informers. In the Royal Women's Hospital case Charles JA recorded:[28]

Public interest immunity is similarly invoked when objection is made by the Director of Public Prosecutions or police officers to the production of documents or the giving of evidence which will reveal the identity of a police informer. The identity of an informer has been protected against disclosure in order to prevent damage to the administration of criminal justice since Eyre CJ laid down the rule in Thomas Hardy's case[29] in 1794. The rule was reaffirmed in 1846 in Attorney-General v. Briant[30]. In D v. NSPCC, Lord Diplock[31] said that by the time of Marks v. Dreyfus[32] this had "hardened into a rule of law.

What explains the successive extensions of the informer immunity[34] is the recognition that the very function which an informer performs means that information about the informer's identity and whereabouts will almost always need to be immune from disclosure, in order both to protect the individual and to encourage the provision of such information in the future. This remains true whether the informer is assisting police, or a child protection agency, or the Gaming Board. The same exigencies have been held to override the requirements of natural justice, or to rob them of content, where adverse information has been provided to a decision-maker by an informer.[35]

34 The operational rationale postulated with respect to the preservation of the confidentiality of police informers is closely akin to that claimed for the confidentiality of aspects of the information in issue in this proceeding.

35 In D v The National Society for the Prevention of Cruelty to Children[36] Lord Simon articulated the public interests that are balanced in the application of the principle.

Then the law proceeds to recognise that the public interest in the administration of justice is one facet only of a larger public interest - namely, the maintenance of the Queen's peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be divulged.[37] The law therefore recognises here another class of relevant evidence which may - indeed, must - be withheld from forensic investigation - namely, sources of police information.[38] Here, however, the law adds a rider. The public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial:[39] It would appear that the balance of public interest has been struck, both in the general rule and in its rider, in such a way as to conduce to the general advantage of society, with the public interest in the administration of justice as potent but not exclusive.

I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it.

36 The making of suppression orders pursuant to s.18 of the Supreme Court Act 1986 may also involve balancing competing considerations of the public interest.

37 In BK v ADB[40] Nettle J stated with respect to an application for the anonymisation of parties to a proceeding:

Courts at the highest level have stressed the fundamental importance of openness in the administration of justice and thus it is the ordinary rule of this court, as with other courts of this country, that proceedings shall be conducted publicly and in open view. That rule has been said to have the virtue that proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses might flourish undetected. It has been said also that the public administration of justice tends to maintain confidence in the integrity and independence of the courts and that the fact that courts of law are held openly and not in secret is an essential aspect of their character.[41]

Plainly, however, the rule requiring open justice is not absolute and there are exceptions to it. As it was put by Kirby P in John Fairfax Group Pty Ltd (Receivers and Managers appointed) and Anor v Local Court of New South Wales and Ors[42], a common justification for the special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case, as for example, by vindicating the activities of the blackmailer, or discourage its attainment in cases generally, as by frightening off blackmail victims or informers, or would derogate from even more urgent considerations of public interest, as by endangering national security, the rule of openness must be modified to meet the exigencies of the particular case.

38 In each of the areas to which I have referred, the balancing of the public interest may plainly involve questions of fact and degree.

39 I accept that in the present case the appropriate balance of the public interest may be achievable by permitting parts of a document to be disclosed. This is the necessary concomitant of the principle referred to at [17] above, that the restrictions imposed should not go beyond the strict requirement of public need.

40 The plaintiffs may or may not be able to discharge the onus cast upon them with respect to a document either wholly or in part. [43]

41 Nevertheless, the process of redaction carries with it the risk of confusion of the medium with the message. It is the confidential information within the documents which the plaintiff States seek to protect. That confidentiality will not be protected if the redacted documents are published within a context of reference, which is derived from the redacted portions of the document of which the defendant has had knowledge. If this were to occur the defendant would in truth be using the redacted portions of the document, when publishing the terms of the unredacted portions.

42 I respectfully agree with the observations of Ashley J in Falconer v ABC:[44]

In my opinion, where confidentiality attaches to information such that equity would prevent its unauthorised disclosure, equity may also protect that information from disclosure by means of the use of non confidential material. Particularly that should be so where the use of that material produces, as its inevitable outcome, not by some unintended sidewind, the means whereby the confidentiality of information may be breached. If equity did not give protection in such circumstances, the very thing that equity seeks to prevent would be effectively countenanced. Where equity has been cautious in saying, even where there has been some disclosure of confidential information, that this will destroy the protection which equity gives such material, there appears to me to be a stronger case again for restraining the use of non confidential information which may well breach the confidentiality of information which has been otherwise carefully protected.[45]

43 Before turning to the documents themselves, it is necessary to summarise the chief elements of the evidence called with respect to them. Victoria first called evidence from Mr Paul Delphine who is currently the Director, Business Environment and Business Sustainability of the Department of Justice. He has worked in the prison system for 28 years and has performed a range of senior management roles within the that system. He described the circumstances in which the documents became mislaid, and summarised the nature of those documents. He expressed the opinion based on his long experience, that the documents identified by him as confidential were extremely sensitive, in that they relate to the personal affairs of prisoners and prison staff and further relate to the proper and safe management of prisoners. He further detailed particular concerns relating to individual documents.

44 In the course of cross-examination, he freely conceded the public interest in seeking to ensure accountability in the administration of prisons, through access to confidential information, insofar as such access does not otherwise compromise the public interest in ensuring the proper operation of the correctional system.

45 He expressed concern that the disclosure of the process of internal review of contentious matters, may prejudice co-operation with future internal reviews by both prisoners and staff. Based on his experience both prisoners and staff are more likely to give information if their confidentiality is respected. In part this is because within prisons, public co-operation may give rise to issues of personal safety.

46 In his view the Corrections Act 1986 ("the Corrections Act") clearly articulates an appropriate regime of secrecy for prison-related matters, which respects privacy and other concerns.

47 The problem of recidivism means that ex-prisoners cannot be assumed to have escaped future personal risk within the prison system simply by reason of the fact that they are released at a particular time.

48 He accepts that some of the documents may be embarrassing to Corrections Victoria. He defends his own response to certain events referred to in the documents.

49 He agrees that allegations of sexual impropriety by prison officers within a prison, raise issues of particular public interest.

50 When the first allegation of sexual contact involved in what I shall call the "unlocked cell incident"[46] was made, the allegation was one of consensual contact. Nevertheless Mr Delphine referred the matter to Victoria Police immediately for investigation.

51 He accepts that the subsequent investigation by the Corrections Inspectorate resulted in criticism of the manner in which information concerning the incident was passed up the chain of command or "information hierarchy" within Corrections Victoria. He takes the view that these criticisms were made with the benefit of hindsight. He agrees that he participated personally in the hierarchy of information which was criticised.

52 There is a conflict as to the nature of the initial reporting by a Mr Johns with respect to the unlocked cell incident to those in the hierarchy above him. Mr Johns' account of what was said is at odds with that of Mr Delphine, Mr Wise and Mr Money being the persons to whom he reported.

53 Mr Delphine elaborated further specific concerns about particular documents, a number of which led to the defendant proposing further redaction.

54 He reinforced his evidence that prison officers were sensitive to having their names described in the press. He gave evidence of industrial problems as a result of such identification in the past.

55 He expressed the view that the Department had an obligation to seek to restrain publication of documents which it would not have released deliberately, having regard to its privacy obligations.

56 He emphasised that prisoners are extremely adept at finding ways of manipulating any system, any process and any person. The release of information should not facilitate such potential manipulation.

57 Prisoners are also unlikely to freely co-operate with police investigations. On the other hand, Corrections Victoria needs the co-operation of the police to implement covert surveillance and investigation. A co-operative approach is necessary for effective investigation.

58 Helen Kathryn Versey is the Privacy Commissioner of Victoria. She gave evidence with respect to the operation of the Information Privacy Act 2000 and identified certain documents in issue in this case as containing personal and sensitive information within the meaning of that Act. She expressed the view that such information would ordinarily be protected under that Act and that the Department of Justice should endeavour to contain the effect of any breaches of the Act involved in the handling of the material. She gave evidence of a systems review which had been undertaken, seeking to ensure that documents of the kind here in issue would not be mishandled in future.

59 In cross-examination, Ms Versey accepted that the provisions of the Information Privacy Act were subject to those of the Freedom of Information Act 1984. She accepted that the Information Privacy Act itself seeks to balance the public interest in the free flow of information and the public interest in protecting the privacy of personal information in the public sector. She accepted that particular cases may give rise to a conflict between these public interests.

60 Kelvin John Anderson is the Commissioner of Corrections Victoria, with statutory duties pursuant to s.8A of the Corrections Act. He has 23 years of experience in corrections, including working both in the public sector and as the director of two privately operated prisons. He supported the suppression of information that would reveal:

(a) confidential personal details of prison staff, prisoners or official prison visitors;

(b) confidential matters affecting prison security; and

61 He stated that the maintenance of security and good order in a prison system and the keeping of the peace are core functions of the State itself and the public service. He further stated:

Without adequate security, the safety of the community, and of prisoners, cannot be guaranteed, and symptoms of disorder become real. In my experience, if prisoners are living in an environment that does not feel safe, they will respond in ways that escalate the dangers rather than diminish them. This could be exhibited by increased levels of self-preservation, increased 'power groups' violent and destructive behaviour (sometimes to gain alternative placements), increased trafficking to buy safety, and increased motivation to escape. When the symptoms are prominent, staff become defensive and the situation may escalate again. In my opinion, the very fabric of prison security is at risk where either static or dynamic security are compromised.

62 Mr Anderson emphasised that prisons are a unique and dangerous place to work, that prison officers are dependent upon each other, and that participation in confidential review and investigation processes is important and must not be discouraged. Likewise, the anonymity of informants requires protection if they are to be protected as individuals and the flow of information from such sources is to be maintained.

63 In cross-examination, Mr Anderson agreed that he had received input from other senior staff members in preparing the affidavit comprising his evidence in chief. He agreed that the handling of the unlocked cell incident was the subject matter of a number of criticisms by the Corrections Inspectorate, and that he was part of the hierarchy of information handling which was the subject of criticism. With hindsight, the passage of information through that hierarchy was inadequate, and is a subject of embarrassment for Corrections Victoria. Changes have been introduced to the operation of the prison system arising out of the criticisms of the Inspectorate.

64 He agreed that the initial daily briefing given with respect to the unlocked cell incident was "pathetic". He agreed that the elements of the unlocked cell incident made it operationally serious, damaging politically, and of great interest to the media.

65 Mr Anderson further gave evidence of risks to the public interest associated with particular documents.

66 He ultimately emphasised the importance of comprehensive intelligence gathering to prison security and the necessity of maintaining confidentiality in order to maximise the provision of such intelligence.

67 Dr Michael Epstein, a clinical psychiatrist with very extensive experience in the prison system, gave evidence of an opinion formed on relevant papers (including medical records) that the prisoner involved in the unlocked cell incident has a borderline personality disorder, probably associated with a reactive depression. As such, she is psychiatrically vulnerable and publication of material from her psychiatric file would be likely to be detrimental to her mental health. The risk extends to one of causing self-harm. The prisoner is also at risk from persons in the prison subculture, if some particular aspects of the file were disclosed.

68 Dr Epstein accepted in cross-examination that the basis of his diagnosis was more limited than it would have been if he had seen the prisoner personally. Further, he does not know her present circumstances.

69 He holds to his opinion despite previous publication of details of the prisoner's case in the media.

70 He does not believe an ex-prisoner would feel positively about the publication of an investigation report into these matters.

71 He agrees that the circumstances of the unlocked cell incident gave rise to issues of grave public concern.

72 He recognises there is an overriding public interest in public awareness of the way prison institutions function, but he is concerned that collateral damage be minimised.

73 Mr Graeme Johnstone is the State Coroner. He gave evidence with respect to a particular document forming part of the Coroner's brief in the inquest into the death of Wesley Jennings. I will elaborate on this evidence in dealing with that document.

74 In final address senior counsel for the defendant described Mr Delphine, Mr Anderson, Ms Versey and Mr Johnstone (whom he had cross-examined) as "obviously good and worthy people". His primary criticism of them was that they reflected a "blinkered approach" to the question of public interest, which focussed too much upon considerations of security. I do not accept that this case falls to be determined by way of such a sweeping criticism. It seems to me rather, that the documents in question raise a series of discrete and complex issues of the public interest, which can only be determined on an individual basis.

75 It was also submitted on behalf of the defendant that the evidence of Mr Delphine and Mr Anderson should be treated with caution, inasmuch as they had a personal involvement in some of the events in issue. Further, it was said that they had not adequately considered the potential benefits of redaction. Once again these considerations, insofar as they deserve to be given any weight, fall to be resolved by reference to particular documents in issue.

76 The second plaintiff relies, firstly, on his own affidavit which deposes to his position as the Chief Executive Officer of the Department of Corrective Services, Western Australia. It further deposes to the security sensitivity of the report prepared for the Western Australian Department of Justice which is in issue.

77 In turn, the affidavit of Mr Brett Hunt, the Assistant Superintendent of the Department of Corrective Services, Western Australia, emphasises the circumstances of confidentiality in which the report was prepared.

78 The plaintiffs also tendered parts of the affidavit of Professor John Van Groningen, an expert retained by the defendant with qualifications as Adjunct Professor and consulting criminologist within the Criminal Justice Research Group, School of International and Community Studies, RMIT University. The portions tendered demonstrate Professor Van Groningen was retained to advise with respect to the principal operational bases upon which the plaintiffs seek to raise issues of public interest. In the event, Professor Van Groningen's opinion was not put in evidence, and it is submitted by the plaintiffs that inferences should be drawn that his evidence would not have assisted the defendant and that the evidence put forward on behalf of the plaintiffs can be more readily accepted.[47] Further, the second plaintiff specifically relies on the evidence of Professor Van Groningen, that the contents of the document relating to a Western Australian facility should not be made public.

79 Finally, the affidavit of a solicitor was tendered by the defendant evidencing previous media publications relating to the matters in issue.

80 I turn then to examine the documents individually.

81 Item 15 comprises a redacted version of a patient profile from the files of Thomas Embling Hospital.

82 It is apparent the defendant, if permitted, would use it as relating to allegations already the subject of media report. The essential elements of this reporting are reflected in the statement of Australian Associated Press of 24 October 2003 exhibited to the affidavit of Elizabeth Kathleen Price sworn 30 May 2007.

A Victorian prison officer was today charged with raping a 24 year old mentally ill female inmate.

The alleged rape by 27 year old Kelvin McCann resulted in a pregnancy and the woman was later taken to a secure psychiatric hospital, the Melbourne Magistrates' Court heard today. ...

Crown Prosecutor Mick Jones told the Court the woman had been moved into the management unit of the Dame Phyllis Frost Centre because of her mental state and the risk of self-harm in May this year. She was to be moved to the Thomas Embling Hospital, a secure psychiatric institution, but there were no beds available. On June 30, after trouble in the visitors area, McCann and another officer locked down the management unit before handing the keys back to the supervisor, Mr Jones said. After day staff left, McCann was left alone in the unit and at 9.30 pm he opened the door of the alleged victim's cell which had been left unlocked, the Court heard.

The prison officer then told the woman to go to the supervisor's office where he allegedly raped her.

"He ordered her to perform oral sex on him and then he had sexual intercourse with her", Mr Jones said.

After the alleged attack the woman was told to return to her cell.

In July, the inmate was transferred to the Thomas Embling Hospital and in August she made a formal complaint over the alleged rape.

Mr Jones told the Court that DNA tests indicated "the defendant was the biological father of the then foetus."

McCann was suspended on August 6 and shortly after he threatened other prison staff against implicating him in the alleged rape.

The Court also heard McCann had previously been fined but not convicted for impersonating a police officer.

... The woman has since left the correctional system and the pregnancy was terminated.

(I shall refer to the alleged incident of June 30 described in this report as the "unlocked cell incident").

83 Despite the details disclosed, the content of the patient profile which remains in issue, is not within the public domain.

84 In my view the overwhelming public interest is in the maintenance of confidentiality of the patient profile.

85 It is headed "Strictly Confidential" and I am satisfied that when prepared it was intended to remain such.

86 Section 47(1)(g) of the Corrections Act provides that every prisoner has the right:

If intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the Governor's approval outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;

87 In the present case it appears the medical officer considered it necessary or desirable that the prisoner have treatment at the Thomas Embling Hospital (the Victorian Institute of Forensic Mental Health).

88 Section 6A of the Mental Health Act 1986 ("the Mental Health Act") in turn provides that it is the intention of Parliament that a series of principles be given effect to with respect to the provision of treatment and care to people with a mental disorder. The first of those principles is:

(a) people with a mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards.

89 Section 16 of the Mental Health Act provides for the transfer of mentally ill prisoners from prison to an approved mental health service. By order of 4 July 2003 the prisoner was directed pursuant to section 16(3)(b), to be removed from the Dame Phyllis Frost Centre ("DPFC") as a security patient, to the psychiatric inpatient facility at the Victorian Institute of Forensic Mental Health.

90 It is apparent that the patient profile in issue was created for the purposes of the prisoner's psychiatric care following her transfer from DPFC for the purposes of treatment of mental illness.

91 It is in the public interest that medical records created in these circumstances be protected in order to protect a class of persons of special vulnerability by reason of their status.

92 Section 120A of the Mental Health Act reflects the vulnerability of the mentally ill. It provides for the confidentiality of information acquired by reason of the fact that a person is a patient of a relevant psychiatric service. Sub-section (2) provides that a relevant person must not except to the extent necessary -

(a) to carry out functions under this or any other Act; or

(b) to exercise powers under this or any other Act in relation to a relevant psychiatric service; or

give to any other person, whether directly or indirectly, any information acquired by reason of being a relevant person, if a person who is or has been a patient of, or has received psychiatric services from, a relevant psychiatric service could be identified from that information.[48]

93 The section goes on to state a number of exceptions to this general prohibition, commencing with the consensual giving of information, and then setting out a series of circumstances in which the public interest favours publication of the information. Sub-section (3A) further allows the Minister to authorise the giving of information if he or she considers it necessary to do so in the public interest. In my view, the scheme of the section supports the conclusion that there is ordinarily a clear public interest in preserving the confidential identity of persons who receive psychiatric services.

94 This view of the section is supported by parallel provisions of the Corrections Act. It would be anomalous if the transfer of a mentally ill prisoner to Thomas Embling Hospital reduced the privacy to which she was entitled.

95 Section 30 of the Corrections Act provides for the secrecy of "confidential information" including:

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

96 It does so by imposing an obligation of secrecy upon prison officers and other defined persons including the Secretary to the Department of Justice.

97 Section 30(5) provides an exception with respect to the recording or accessing and using of health information within the meaning of the Health Records Act 2001.

98 In turn, the provisions of the Health Records Act 2001,[49] the Information Privacy Act 2000, s.28 of the Evidence Act 1958 and s.13 of the Charter of Human Rights and Responsibilities Act 2006 also tend to support the view that the privacy of medical records should be respected unless there is a demonstrable public interest requiring their disclosure.

99 The public interest here in issue, however, goes beyond a general policy objective relating to privacy. It is in the public interest that patients and staff at Thomas Embling Hospital and like institutions have confidence in the security of psychiatric records. Such confidence must assist in obtaining co-operation within what is ultimately a custodial environment. It might also be reasonably regarded as inherently likely to have the capacity to support treatment and care of the patients.

... prisoners give their information to authorities often by self-report in terms of their own mental history and background, their substance abuse, their fears, their apprehensions, and those matters are given in good faith on the presumption that they will be kept and used by authorities to assist in the management of the individual ...

101 Free disclosure by prisoners of this information is significant for the proper management of prisons and facilities such as Thomas Embling Hospital, both in the interests of the prisoner concerned and other prisoners, patients and staff. A threat to the confidentiality of this sort of information raises serious operational issues.

102 The public interest in protecting the proper operation of the hospital may be regarded as analogous to that recognised in X v Y.[50] In that case it was held that the public interest in preserving the confidence of records identifying actual or potential AIDS sufferers, outweighed the public interest in the freedom of the press, in part because victims of the disease should not be deterred by fear of discovery, from attending hospital for treatment.

103 There are also other more specific issues of the public interest in the present case.

104 The document in issue refers to a history of security alerts with respect to the prisoner. The basis of such alerts and the characterisation of the prisoner's mental state, are matters with the potential to help reveal the identity of the prisoner.

105 The public interest requires a precautionary approach in this regard.

106 There is also a risk of damage to the prisoner's health if the document is published even in a redacted form. I accept the evidence of Dr Epstein that the prisoner has a borderline personality disorder and that it is likely that publication of the confidential profile, whether or not the prisoner's name is specifically mentioned, may be detrimental to her mental health.

107 Mr Delphine, Mr Anderson and Dr Epstein also gave evidence to the effect that public identification of the nature of the prisoner's vulnerability would create potential further risks for the prisoner by providing specific bases for potential harassment if she were identified. In my view however, this is a concern capable of being adequately addressed by redaction.

108 Lastly, it is pertinent to observe the document does not augment the information concerning the prisoner's history at DPFC and in particular the unlocked cell incident, which is currently available to the public. It is this history which is the focus of the defendant's assertion of countervailing public interest in respect of this particular document.

109 It follows from the above considerations that the public interest does, on balance, favour the suppression of publication of item 15. It does so ultimately by reason of specific considerations of the public interest in the proper administration of the records of Thomas Embling Hospital, with respect to an involuntary patient transferred from a prison. It is not simply or indeed principally a public interest in giving effect to public policy objectives relating to privacy.

Two versions of a "major investigation plan" relating in the first instance to complaints to an official prison visitor concerning sexual assault of prisoners at DPFC by prison officers;[51]
Copies of notes made during interviews with a series of officers of Corrections Victoria concerning the unlocked cell incident and other matters including the conduct of a prison officer named Falconer;
A memorandum of 9 October 2003 from the Acting General Manager, Women's Prisons Region to the Director of Prison Services concerning staff conduct at DPFC;
A memorandum of 15 June 2003 from the Acting Director, Corrections Inspectorate to the Secretary, Department of Justice concerning alleged staff misconduct at DPFC;
A memorandum of 18 February 2004 to the Commissioner, Corrections Victoria from the Director, Corrections Inspectorate concerning the outcome of investigations into allegations of staff misconduct at DPFC;
A copy letter seized from mail to a prisoner within a correctional facility.

111 Victoria submits these documents should not be published because:

(a) the documents are in part draft documents which are potentially misleading;

(b) they disclose the broad methodology proposed for a joint investigation by Victoria Police and departmental officers, of allegations of sexual misconduct by prison officers at DPFC;

(d) such disclosure will inhibit further investigations of a similar kind by affecting the willingness of prison officers to participate;

(e) the documents in part disclose personal and sensitive information.

112 It is necessary to consider these submissions by reference to the individual documents in issue.

113 These plans are directed to the investigation of matters of patent public interest, namely allegations of sexual misconduct by prison officers towards prisoners.

114 The public interest is enlivened not simply because the plans are concerned with governmental action, but more specifically because they deal with matters affecting the liberty of the subject and allegations of abuse of government power.

115 The fact that the investigation plans constitute draft documents does not, in my view, render them of no interest or evidentiary value. They can be described as drafts if published and the defendant states that it would so describe them. There is no final version which is available for publication in evidence before me and hence the draft documents constitute the best evidence of the Government's plans during the time in issue.

116 The question of the extent to which the assessment and subsequent phases of the proposed investigation were in fact implemented, is a separate question which cannot logically deprive the plans of their public interest.

117 I also do not accept that the publication of proposed investigation methodology is contrary to the public interest simply because it comprises a proposal. To the contrary, the existence of such a methodology is itself a matter of the public interest and its publication would have to be shown to have adverse operational effects before it could be said to be contrary to the public interest to publish.

118 I do not accept that the publication of the plans will inhibit the Victoria Police in undertaking further investigations of like events. Mr Anderson conceded as much in evidence. The complaints are serious ones of a kind which the police can be expected to continue to investigate when requested to do so.

119 I also do not accept that the publication of the methodology disclosed in the plans will inhibit the co-operation of prison officers in the investigation of future misconduct. The plans do no more than confirm what would otherwise be a reasonable expectation namely that allegations of misconduct would be thoroughly investigated.

120 It is not enough to postulate that prisoners may seek to use the information "creatively" (as Mr Anderson said). There must be some realistically feasible adverse result before suppression would be warranted.

121 The investigation plan documents do not contain personal and sensitive information. The names of proposed investigating officers have now been redacted. The name of a particular prison officer under investigation with respect to particular allegations has also been redacted.

122 Accordingly, publication in redacted form of the content of the investigation plans should not be restrained in redacted form. No sufficient public interest countervailing those favouring publication has been identified.

123 These documents are to be contrasted in a number of respects with the investigation plans referred to above. They contain notes of parts of interviews with named officers, concerning matters of interest to the investigators.

124 Such interviews took place in the context of a statutory regime, which explicitly recognises that the proper management of prisoners requires the maintenance of secrecy for appropriate purposes. This is most clearly illustrated by s.30(1)(f) and (g) of the Corrections Act which relevantly define as "confidential information" for the purposes of s.30:

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

(g) information concerning the investigation of a breach or possible breach of the law by -

At a glance

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Judgment (363 paragraphs)

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Legislation Cited (18)

Cases Cited (13)