The applicant applied for access to information under the Government Information (Public Access) Act 2009 ("the GIPA Act") from the NSW Department of Justice (the respondent).
The information sought included CCTV footage of movement between specified areas within the Metropolitan Remand and Reception Centre on 27 October 2016. The applicant alleged he was assaulted in the Centre on that date while being moved from one cell to another. The applicant was granted access to the CCTV footage on 1 November 2018 in the form of view only access and was not permitted to retain a copy.
The applicant sought internal review of the decision. The Internal review decision confirmed the original decision.
The applicant has applied to this Tribunal for review of the decision. At the hearing, his legal representative indicated that his application for review was limited to the decision to restrict access to providing him with a reasonable opportunity to view the footage, rather than provide a copy.
[2]
Relevant legislation
Section 5 of the GIPA Act provides:
"5 Presumption in favour of disclosure of government information
There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure."
Section 11 provides:
"11 Act overrides secrecy provisions in other legislation
This Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law."
Section 12 provides:
"12 Public interest considerations in favour of disclosure
(1) There is a general public interest in favour of the disclosure of government information.
(2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.
Note. The following are examples of public interest considerations in favour of disclosure of information:
(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.
(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.
(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
(d) The information is personal information of the person to whom it is to be disclosed.
(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
(3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies."
Section 13 provides:
"13 Public interest test
There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure."
Section 14 provides:
"14 Public interest considerations against disclosure
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.
(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.
(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).
Table
…
1 Responsible and effective government
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
(f) prejudice the effective exercise by an agency of the agency's functions,
…
2 Law enforcement and security
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):
…
(g) prejudice the supervision of, or facilitate the escape of, any person in lawful custody,
(h) prejudice the security, discipline or good order of any correctional facility.
…
3 Individual rights, judicial processes and natural justice
There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects:
(a) reveal an individual's personal information,
(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,
…
(f) expose a person to a risk of harm or of serious harassment or serious intimidation,
…
6 Secrecy provisions
(1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
(2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure."
Section 55 provides:
"55 Consideration of personal factors of application
(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section:
(a) the applicant's identity and relationship with any other person,
(b) the applicant's motives for making the access application,
(c) any other factors particular to the applicant.
(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.
(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14.
(4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.
(5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.
(6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.
Section 72 provides:
"72 Forms of access
(1) Access to government information in response to an access application may be provided in any of the following ways:
(a) by providing a reasonable opportunity to inspect a record containing the information,
(b) by providing a copy of a record containing the information,
(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),
(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
(2) The agency must provide access in the way requested by the applicant unless:
(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or
(b) to do so would be detrimental to the proper preservation of the record, or
(c) to do so would involve an infringement of copyright, or
(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant."
Section 73 provides:
"73 Access to be unconditional
(1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application.
(2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information.
(3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally."
Section 74 provides:
"74 Deletion of information from copy of record to be accessed
An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information."
Section 257(1) of the Crimes (Administration of Sentences) Act 1999 provides:
"257 Disclosure of information
(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(b1) in connection with the administration or execution of a law of some other State or Territory in its application to an inmate who has been, or is to be, transferred to that State or Territory pursuant to:
(i) a direction referred to in section 45, or
(ii) a warrant referred to in section 49, or
(iii) an order of transfer under the Prisoners (Interstate Transfer) Act 1982, or
(c) for the purposes of any legal proceedings, or
(d) in accordance with a requirement of the Ombudsman Act 1974 or with any request made by the Ombudsman, or
(d1) to the Commissioner of Fines Administration in connection with the administration or execution of the Fines Act 1996 (including for the purpose of the imposition, administration or enforcement of a fine), or
(e) with other lawful excuse.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or both."
[3]
Evidence
The respondent contends that there is an overriding public interest (as referred to in s72(2)(d) of the GIPA Act) against providing access to the footage in the form requested by the applicant. The respondent had allowed the applicant to view the footage three times.
The respondent relied upon the evidence of Paul Juhasz, Systems Security Manager at the Centre. Mr Juhasz stated that he was responsible for recording and keeping of video surveillance footage captured at the Centre and retrieving footage as required.
In relation to the incident on 27 October 2016, footage was preserved from three CCTV cameras which showed a total of five angles. On that date the nominated area of the Remand Centre housed offenders requiring protection. These could include former police officers, child sex offenders and police informants. Mr Juhasz stated that if CCTV footage of those persons were released showing them in that area of the Remand Centre, it may place those inmates in grave danger, by disclosing their identity and their need for protection to other persons who may wish them harm.
Additionally Mr Juhasz expressed his belief that the release of the footage could lead to a person identifying the camera angles and blind spots which were not covered by the cameras, and making that information known to inmates. If this information was known to inmates it may facilitate the commission of assaults or other acts having a detrimental effect on the security of the Centre and allowing inmates to evade detection. He was concerned it would compromise the security of the Centre if that information was in the public domain. He agreed that in order to make use of the information in the footage to avoid observation, an inmate would need knowledge of the area, but recidivism in the prison population meant that this was not uncommon.
The footage in question was played at the hearing. Mr Juhasz was not able to say whether the footage could be redacted so that the faces of persons in the footage could no longer be seen. The respondent's legal representative conceded that it could be done at an estimated cost of $60 per minute. There are in total 35 minutes of footage.
[4]
Public interests for and against providing access in the requested form
The respondent submitted that the following public interests in favour of disclosure applied:
1. The general public interest in favour of the disclosure of government information;
2. The information includes the applicant's personal information;
3. The applicant is seeking the information to identify the alleged misconduct of a correctional officer and for use in possible litigation.
The respondent also put forward a number of public interests against disclosure under s 14. The words "could reasonably be expected" in s 14 have the meaning that there must be a reasonable expectation (not fanciful, imaginary or contrived, or absurd, irrational or ridiculous) that the disclosure would have the prescribed effect (Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No. 2) (1985) 7 ALD 584 at 590; Attorney General's Department v Cockcroft (1986) 10 FCR 180 at 190). There must be more than a mere risk (Vincent Neary v State Rail Authority [1999] NSWADT 107).
The onus is on the respondent to demonstrate that the disclosure could reasonably be expected to have the nominated effect (s 97(1)).
The balancing exercise to be conducted under s 13 "is a question of fact and degree, requiring the weighing of competing matters, and is a task not amenable to mathematical calculation" (Battin v University of New England [2013] NSWADT 73 at [74]).
[5]
Clause 1(f), 2(g) and 2(h)
The public interests contained in these clauses relate to the security and safety of the Remand Centre and the supervision of inmates.
Clause 1(f) provides that there is a public interest consideration against disclosure of information if it could reasonably be expected to have the effect (whether in a particular case or generally) of prejudicing the effective exercise by an agency of the agency's functions. The respondent submitted that one of its key functions was to ensure the safe and secure custody of correctional centre inmates, as set out in s2A of the Crimes (Administration of Sentences) Act 1999.
Under clause 2(g) there is a public interest against disclosure if the disclosure could reasonably be expected to prejudice the supervision of any person in custody.
Clause 2(h) provides that there is a public interest consideration against disclosure of information if it could reasonably be expected to prejudice the security, good order or discipline of a correctional facility.
The respondent submitted that release of the CCTV footage under the GIPA Act could allow individuals to identify blind spots not observed by the cameras, particularly because the footage showed multiple angles. This could reasonably be expected to result in inmates identifying areas in the pod where they would not be observed. This could facilitate the commission of assault or other activities which compromised the safety and security in the Centre. The disclosure of blind spots in a secure area where protected inmates are housed would be detrimental to the core security functions of the respondent and also to the supervision of inmates in custody. The respondent also submitted this would increase the risk of inmate escape.
The word "prejudice" in this context should be given its ordinary meaning of "cause detriment or disadvantage" (McLennan v University of New England [2013] NSWADT 113).
Based on the evidence of Mr Juhasz I am satisfied that disclosure of footage that shows the areas which are not monitored by CCTV could reasonably be expected to cause detriment or disadvantage to the safe and secure custody and the supervision of inmates and would compromise security of the area concerned, by releasing without limitation information about which areas of this part of the Centre are not under observation. Security and supervision of correctional centres and their inmates are core functions of the respondent. I am not satisfied that it could reasonably be expected to facilitate escape, however, as there was no evidence on this point and in my view this does not go beyond a mere possibility.
[6]
Clause 3(a) and (b)
Clause 3(a) applies if disclosure of the information could reasonably be expected to have the effect of revealing a person's personal information. The respondent submitted that the footage contains personal information of inmates and staff other than the applicant. "Personal information'" is defined by clause 4 of Schedule 4 to the GIPA Act to mean:
"information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion."
To "reveal information" is defined by Clause 1 of Schedule 4 to the GIPA Act to mean:
"…to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure)."
The respondent submitted that images of correctional officers and inmates constitute their personal information. It relied on the decision of Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210. In that decision, Senior Member Robertson accepted that if the persons appearing in the footage could be identified, the footage would constitute "personal information" of those persons. The footage in that case was similar to the footage in the present case, in that the identities of the persons in the footage are "apparent or can reasonably be ascertained" from the information. Either the faces are visible, so that the identity of individuals is 'apparent' or in some cases the identity of individuals may not be immediately apparent to strangers. See also Meldru v Wollondilly Shire Council [2017] NSWCATAD 292.
Accordingly I accept that the disclosure of the footage could reasonably be expected to have the effect of revealing the personal information of the inmates and correctional officers in the footage whose faces are visible. As noted above, the faces of persons in the footage could be redacted, at a cost.
Clause 3(b) provides that a public interest consideration against disclosure exists if disclosure could reasonably be expected to breach an information protection principle under the Privacy and Personal Information Protection Act 1998. The respondent relies on the principle in s 18 of the Act that an agency must not disclose personal information for a purpose other than that for which it was collected. The purpose for which it was collected was for the safety and security of the Centre. I accept that this is a relevant consideration.
[7]
Clause 3(f)
Clause 3(f) provides there is a public interest against disclosure if it could reasonably be expected to expose a person to a risk of harm or of serious harassment or intimidation.
I accept that there may be a risk of harm occurring to persons in a correctional centre from various sources from time to time. However there was no evidence connecting the disclosure of the information to any risk of harm, harassment or intimidation to any persons in the footage apart from a general concern that persons who wished some ill to persons in the footage might see it and might take action to harm, harass or intimidate those persons or any of them. There was no evidence as to whether this was a reasonable expectation. I am not satisfied that this consideration is established.
[8]
Clause 6(1)
The respondent relies on the public interest against disclosure that disclosure of the information by any person could (disregarding the operation of the GIPA Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
In this regard it refers to s 257(1) of the Crimes (Administration of Sentences) Act which provides that a person must not disclose any information obtained in connection with the administration or execution of that Act unless that disclosure is made in certain specified circumstances. Contravention of this provision is an offence. However, s 11 of the GIPA Act provides that the GIPA Act overrides a provision of any other Act that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law. Section 257 is not listed in Schedule 1 as an overriding secrecy law.
I am satisfied that the footage is information obtained in connection with the administration or execution of the Act, as the Act regulates the management and control of correctional centres. Release of the footage would be a breach of s 257, however access to the information can be granted if, on balance, there is an overriding public interest consideration in favour of disclosure (Mookhey v Department of Finance, Services and Innovation [2018] NSWCATAD 128). The policy of the legislation is to ensure secrecy of information about correctional centres and inmates which is sensitive in nature or impacts on security of those centres.
[9]
The personal factors of the applicant
Under s 55(2) the personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. The applicant wishes to have the footage available to him in order to help him litigate a claim that he was assaulted while in the Centre.
[10]
The balancing exercise
I find that the relevant public interest considerations in favour of disclosure are the following:
1. The general public interest pursuant to s12(1);
2. The information is personal information of the person to whom it is to be disclosed pursuant to s12(2)(d). The footage contains the image of the Applicant and therefore contains his personal information.
3. Disclosure of the information could reasonably be expected to inform the public about the operations of the respondent and its procedures for dealing with inmates.
4. The applicant would be able to use the information to enforce his legal rights arising from an assault which he alleges was committed upon him while in custody. Such an assault, if it occurred would have been a serious breach of the respondent's duty towards the applicant.
The applicant submitted that disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. From my viewing of the footage I am unable to conclude that it could reasonably be expected that this would happen, but I accept that it is a possibility.
I afford these public interest considerations in favour of disclosure significant weight.
I also give significant weight to the public interest considerations against disclosure which I found to be substantiated. The safe and secure custody of inmates and the supervision of those inmates is very significant and anything which has a detrimental impact on that should be avoided where possible. In addition the personal information of inmates in correctional centres and the staff supervising them should be protected from unrestricted disclosure.
It would have been possible to provide the footage with identifying features of individuals redacted, pursuant to s 74 of the Act. This would remove the public interests against disclosure under clauses 3(a) and (b) and partially address 2(h). However the "blind spots" would still be detectable and so the public interests against disclosure under 1(f), 2(g) and 2(h) would remain. Given the importance of the security and supervision of the Centre, on balance I believe the public interest considerations against making the footage available to the applicant in the form requested outweigh those in favour. The correct and preferable decision in the circumstances is to affirm the decision under review.
[11]
Order
1. The decision under review is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 June 2019