Simons v Department of Justice (General) [2006] VCAT 2053

1 In these two proceedings, Ms Simons, an author and journalist, seeks review of the decision made on internal review by the Department of Justice ("the Department") refusing to grant her access under the Freedom of Information Act 1982 ("the FOI Act") to parts or all of 10 documents concerning the housing of Mr Brian Keith Jones in a house in Kent Street Flemington upon his release from prison on parole shortly before the expiration of his sentence.

2 Ms Simons sought access under the FOI Act to documents described in the following terms:

• The nature and timing of the environmental checks and assessments which were carried out before organising the placement of the parolee Brian Keith Jones (also known as Mr Baldy) in a house on Kent Street, Flemington.

• Reviews and assessments of the adequacy of these environmental checks.

3 The first proceeding (G816/2005) involves nine documents concerning the nature and timing of the environmental checks and assessments which were carried out before organizing the placement of Mr Jones. The second proceeding (G254/2006) concerns one document ("document 10") described as the "final version of the discussion paper on the release of Mr Jones"[1].

4 Following a confidential inspection of the documents by Ms Simons' counsel, an offer was made to accept partial release of the documents in dispute as set out in her statement of legal contentions. In addition, release was not sought of personal information in the documents in relation to Mr Jones, his victims or officers of the Department "that is already a matter of public record". During the course of the hearing, counsel for the parties narrowed further the parts of the disputed documents to which access was sought and marked up the disputed documents accordingly. Text in the documents highlighted in yellow is not sought by Ms Simons. Text highlighted in orange consisted of personal information which Ms Simons contends does not attract the exemption claimed by the Department under section 33(1) of the FOI Act on the basis that it was in the material filed by the Department pursuant to section 49 of the Victorian Civil & Administrative Act 1998 ("the VCAT Act"). Ms Simons seeks disclosure of any remaining text or photographic material in the documents not highlighted in yellow, and the Department claims exemption for such text on a number of grounds, including sections 30(1), 31(1)(a), 33(1), and 38 of the FOI Act.

5 Mr Vincent Delphine, Deputy Commissioner of Corrections Victoria ("CV"), and Ms Sheree Drever, General Manager, Operations, Community Correctional Services ("CCS") and Acting General Manager, Diversion and Transitional Services Group, CV, gave evidence for the Department concerning the disputed documents. Their statements pre-dated the further narrowing of the parts of the documents in dispute. Their evidence as it remains relevant to the remaining documents in dispute may be briefly summarised as follows:

a

Communications and discussions with the Adult Parole Board ("the Board") are held on a confidential basis and details of them are not released by the Board. Disclosure of matter in the nature of opinion, advice or recommendation prepared by CV officers for the purpose of enabling CV to supply information to the Board would be contrary to the public interest because it would inhibit frankness in communications by CV officers and would affect the integrity of the Board's decision making process.

b

There is a strong public interest in the reintegration of serious sex offenders into the community, but this is a difficult task, as there are limited suitable places in the metropolitan area, neighbourhoods do not welcome offenders, and no particular housing option is completely free of risk.

c

Suitable housing is only one aspect of the safe reintegration of the offender. CV and the Board may impose restrictions on the offender including curfews, limitations on travel and association and electronic monitoring. Information about risks relating to particular premises, or about measures to manage and monitor offenders should not be revealed because it may enable the offender to avoid the measures.

d

A number of the documents contain information about the personal affairs of the offender. Media attention around his release and attendance at his residence caused the offender to become agitated and to have concerns for his safety, resulting in his permanent removal from the property. Serious sex offenders are more likely to re-offend when put under pressure or stress.

e

Each of the disputed documents, apart from document 9, was created as part of CV's role in providing advice to the Board about a suitable location for Mr Jones. For these reasons, CV's system in advising appropriate accommodation for serious sex offenders should not be released to the public.

f

Documents 1- 6 and the first six pages of document 9 are internal working documents prepared as part of the process of providing assistance to the Board in relation to the identification of an appropriate residence for Mr Jones. Document 1 is an email attaching the environmental scan. Ms Drever said it was a draft report which was referred to her and others for comment before it was submitted to the Board. Document 2 is an email enclosing document 1 to other officers. Document 3 is an email requesting further information. Document 4 is a response to that request for information. Document 5 is a document enclosing document 4 to other officers along with request for comments concerning a final report to the Board. Document 6 is an internal memorandum of advice to Mr Delphine and other CV officers following a meeting with the Board.

g

Document 7 is a six-page final report prepared by CV officers for the Board and provided in confidence to the Board, containing information and discussion of issues for the Board which have not been disclosed in a decision or any reasons given by the Board. The document discusses Mr Jones' personal affairs, and contains confidential information about him relating to issues under the Corrections Act 1986 ("the Corrections Act") and the Serious Sex Offenders Monitoring Act 2005 ("the SSOM Act"). Discussions with the Board occur on a confidential basis. It is very important for there to be free and frank disclosure of information to the Board so that it makes its decisions concerning parole in full knowledge of all issues.

h

Document 8 is a 1-page email attaching a 3 page internal memorandum discussing the possibility of monitoring or home detention of Mr Jones. It contains confidential information about the operation of the electronic monitoring system that is not publicly known. The disputed paragraphs on the second page of the memorandum are inter-related and concern monitoring. Disclosure of the document may enable offenders to avoid monitoring and control and this would be contrary to the public interest in the enforcement of extended supervision orders and home detention orders.

i

Document 9 is a 15-page draft discussion paper which discusses and reviews the organisational and management issues arising out of the release of Mr Jones on parole, for the purpose of management of future cases. Document 10 is a 17-page later version of the same draft discussion paper. The disputed paragraphs in documents 9 and 10 concerning the environmental scan process or details of the properties considered should not be released because it is important for officers to be to able to engage in such a review without concern about disclosure of their discussions. The remaining disputed parts of document 10 do not address the environmental scanning process.

j

In such a controversial area as the housing of serious sex offenders, it is very important that officers are able to express their views on the merits of particular properties fully and frankly without public attention, but also important that offenders not have access to the risk assessments undertaken in respect of particular properties. The documents describe only one aspect of the safe integration of Mr Jones into the community and do not detail other security measures taken to protect the community including electronic surveillance. Disclosure of the documents would therefore provide only limited information, which may be counter-productive. Given the nature of the work they perform, and their frequent contact with offenders, officers and operational staff of CV expect that information relating to their personal affairs would not be disclosed. Documents 1-6 and 9 also contain consideration of possible risks associated with particular premises. Disclosure of the documents is undesirable because it is undesirable that offenders have access to such information.

6 Mr Delphine said the documents contain information concerning Mr Jones' personal affairs, including information in respect of housing. Mr Jones had informed CV that he objected to the release of documents concerning his personal affairs. Mr Delphine said release of the personal affairs information relating to Mr Jones would be unreasonable.

7 Mr Delphine said that Mr Jones is one of 700 registered sex offenders in the community[2] and that it is important to the proper management and supervision of sex offenders and public order and safety that CV is able to monitor these offenders without being required to disclose its methods of monitoring or the specific locations where offenders may be accommodated. Disclosure of this kind of information would be contrary to the public interest because it would give such offenders and other sex offenders information about CV's operations which might undermine the efficacy of those operations.

8 In cross-examination, Mr Delphine agreed that environmental scanning involves identifying potential locations, as well as any risks and any protective or mitigating factors associated with the locations. He agreed that a major purpose of the scan was to identify the existence of triggers for the offending conduct of the offender and to avoid such triggers. He said that what constituted a trigger in an individual case depended on the offence cycle of the offender in question, and that it was dangerous to generalise and treat a location where children gather as a trigger. He agreed that it would be helpful to know if children lived next door to a proposed location, and whether a walking bus supervised by adults met outside the house. He said that his staff do not have the authority to ask personal questions of neighbours but could observe who comes and goes from their homes.

9 Mr Delphine said that Mr Jones was moved from the Kent Street location because of concerns for his safety, and not because CV had second thoughts about the choice of location. Ms Drever said that officers conducting the environmental scans exercise some judgment in determining what was relevant, but she and Mr Delphine agreed that release of the documents would not prevent officers from carrying out their fact-finding activities. However, they said disclosure would inhibit officers from giving full and frank opinions in their reports. Both agreed that there is public knowledge of the broad ambit of security measures being taken in relation to Mr Jones.

10 The Department also relied on a letter to the Tribunal dated 15 February 2006 from the Executive Director of the Board, Mr David Provan. According to Mr Provan, the Board provides a framework for step-by-step reintegration of offenders into the community. The decision to release an offender on parole is made by the Board after consideration of the interests of the community, the rights of the victim, the intentions of the sentencing authority and the needs of the offender. The Board is not subject to the provisions of the FOI Act, as it is not a prescribed authority within the meaning of that Act. Furthermore, the reports prepared by Community Corrections Officers and others to assist the Board to carry out its decision-making function are submitted in confidence so that the information can be provided with "complete frankness and without fear" and are not released.

11 Finally, the Department relied on the responses to the Tribunal from persons referred to in the documents objecting to the release of details about their personal affairs.

12 Ms Simons was a volunteer "driver" on the Flemington Primary School "walking bus" which meets twice each day directly outside the house at 137 Kent Street. She said she was disturbed to discover that 137 Kent Street had been selected as accommodation for Mr Jones, and set out to discover how this had happened. From her inquiries, she has concluded that placing Mr Jones at that address was "a mistake", either on the basis that the environmental scanning process was defective in not revealing that there were children living next door or that a walking bus met outside, or that CV had that knowledge but nevertheless made the decision to place Mr Jones at that address. She said she did not seek any information in the documents relating to his personal affairs, but said that she and other residents of Flemington should know how it came to be that Mr Jones was placed at that location, and they "and the public generally need to know what has been done, if anything, to make sure this kind of mistake does not recur". She said the failure by CV to acknowledge that a mistake may have been made "would tend to suggest that such a mistake might indeed recur, and that the proper operation of this aspect of the corrections system is under threat".

13 In cross-examination, Ms Simons agreed that the documents sought relate to only one part of the parole process, and that disclosure of the documents might require disclosure of further documents in order to provide the "fuller picture" she desired. Ms Simons agreed that since the media publicity surrounding 137 Kent Street and Mr Jones' removal from that address, any publicity concerning the decision to accommodate Mr Jones there had been generated by her. She denied that her interest in obtaining disclosure of the documents would subside if the Tribunal concluded that they throw no light on the question as to whether there was an error in selecting the premises.

14 Ms Simons tendered a statement from Gabrielle Noonan, parent co-ordinator of the Flemington Primary School Walking Bus program since February 2004.

15 Section 30(1) of the Act provides that a document is exempt if its disclosure would disclose a matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers in the course of, or for the purpose of, the deliberative process involved in the functions of an agency or Minister or of the Government; and would be contrary to the public interest. However, section 30(3) of the Act provides that section 30(1) does not apply to a document by reason only of purely factual material contained in the document.

16 The term "deliberative processes" has been held to be wide enough to include the thinking processes of an agency concerning the wisdom and experience of a proposal, a particular decision or a course of action[3]. The term has also been held to comprise the process of thinking and discussion which leads to a decision[4] and as including the formation or refinement of policy[5].

17 In determining whether disclosure would be contrary to the public interest, the Tribunal must weigh the competing interests, on the one hand the interest to which the Act gives rise in the public having access to documents, and on the other the public interest in the efficient and economical conduct of a government agency, and the respondent must prove that, after such a balancing, disclosure would harm the Victorian public[6].

18 The balancing process involves weighing a number of factors[7]. These include: the nature of the information and of the document; the impact of disclosure on the frankness and candour of officers and on the integrity of the decision-making process; and any mischief or benefit which could result from disclosure.

19 The Department claims that all of the documents are exempt under this section.

20 Ms Richards submitted that to the extent that the documents contain purely factual material, they fall within the exception set out in section 30(3) of the FOI Act and should be released. Ms Richards also submitted that the Department's evidence falls short of establishing that disclosure might in future prevent officers from providing the Board with thorough, accurate, frank and candid reports on environmental checks conducted in relation to accommodation for parolees. Finally, she submitted that the cases relied upon by the Department are distinguishable in that the applicants were prisoners, seeking reports about individual prisoners by psychiatrists and others, and those reports necessarily include matters of opinion and degree, whereas in the instant proceedings, the documents concern environmental checks on a property and access is not sought by a prisoner.

21 In seeking disclosure, Ms Richards relied on the public interest in:

•

access to information held by government;

•

maintaining public confidence in the corrections and parole systems;

•

protecting the public, particularly children, from sex-offenders released on parole;

•

understanding the decision of CV and/or the Board to place Mr Jones in the house at Kent Street, "when that house appeared to be a patently unsuitable location for a child sex offender identified as highly likely to reoffend"; and

•

ensuring that CV is open to scrutiny in relation to environmental checks conducted prior to any decision to place a parolee in particular accommodation; and in relation to the checks carried out in this case.

22 Counsel for the Department, Mr Ginnane, submitted that the factual material in the documents and the conclusions drawn from them are inextricably linked and therefore the exception in section 30(3) of the FOI Act does not apply. He submitted that each of the documents attracts the exemption as the disclosure of them would either disclose matter in the nature of opinion, advice or recommendation prepared by officers or consultation or deliberation between officers in the course of the deliberative processes involved in the functions of an agency, namely CV.

23 Further, it was submitted, disclosure of the documents would be contrary to the public interest because disclosure would inhibit:

•

the Board's ability to perform its functions which includes receiving documents and reports on the understanding that they will be completely confidential;

•

the proper administration of the parole system through full and frank reports to the Board; and

•

the proper reintegration of serious offenders into the community.

24 Having examined each of the documents, I make the following comments. First, I note that the disputed parts of pages 1, 8 and 16 of document 10 are not relevant to the request. Second, I consider that any factual material in each of the documents is so closely bound up with the deliberative processes of administering the parole system[8] and considering suitable housing accommodation for a serious sex offender and the advice, information or recommendations to be provided to the Board about this matter, that the exception in section 30(3) of the FOI Act does not apply.

25 I am satisfied that the documents fall within section 30(1)(a) of the FOI Act. Disclosure of the documents would disclose either matter in the nature of opinion, advice or recommendations prepared by officers of CV or consultations between them for the purpose of CV's deliberative processes but also the deliberative processes involved in the Department administering the parole system in Victoria[9].

26 For the following reasons, I am also satisfied on the material before me that disclosure of the documents would be contrary to the public interest and therefore that section 30(1)(b) of the FOI Act is satisfied.

27 As Ms Drever indicated in her evidence, there are limited places in the Melbourne metropolitan area that are suitable for the housing of serious sex offenders. No location is risk proof. Most neighbourhoods are reluctant to have a sex offender living in their midst. The placement of serious sex offenders in the community raises strong emotions. The process of evaluating different potential locations and making recommendations in relation to them requires evaluation of risk factors and risk-mitigation factors. It is in the public interest that evaluation of accommodation options be made by the Board on the basis of full and frank information from the Department. I accept the evidence of Mr Provan that reports to the Board are submitted on a confidential basis to ensure the free flow of frank information to the Board and that the Board does not release details of communications and discussions it holds with the Department. I accept the uncontradicted evidence of Ms Drever and Mr Delphine that release of the documents could undermine the flow of full and frank information to the Board.

28 I acknowledge that the cases relied on by the Department concern prison files, psychiatric reports to the Board and reports of parole officers to the Board concerning prisoners. However, documents concerning the appropriate placement of prisoners within the prison system are in my opinion clearly analogous to documents concerning the placement of parolees outside prison. In the case of the prisoner classification system, the placement is critical to the security and management of the prison. In the case of a sex offender on parole, the selection of appropriate accommodation is critical to the safe reintegration of the offender while under supervision and monitoring by the Board, as well as to the safety of the public.

29 The environmental scan is but one aspect of the process of selection of appropriate accommodation, but it is inextricably linked with other considerations which may form part of the conditions of parole, including access to treatment, restrictions on movement and activities of the offender and electronic monitoring. Within the environmental scan process, fact-gathering is not done in a vacuum; judgment is exercised in determining which facts are relevant and how they are to be assessed in the light of risk factors and risk mitigation factors. Mr Delphine said that if staff undertaking environmental scans knew that their identities and reports were to be disclosed, they would be concerned about being exposed to criticism or retribution from offenders or the community for their assessments of particular properties, and would be inhibited from giving full and frank opinions in their reports.

30 The functions of the Board relate to the release of prisoners on parole. It is in the public interest that the parole system operate effectively[10]. Part of the effective functioning of the system is to reintegrate sex offenders into the community whilst on parole and subject to suitable supervision and monitoring, so as to reduce the likelihood of reoffending once the parole period ends. Those functions are part of the corrections system of this State. One of the functions of the Board is to determine where a serious sex offender will reside, if he or she is granted parole. This decision is highly sensitive given the public interest in both ensuring community safety and safely reintegrating an offender into the community.

31 I note also that documents 1 to 6, and 8 of the disputed documents provide information about only a part of the search and selection of accommodation for serious sex offenders and the safe integration of serious sex offenders into the community[11]. On the evidence before me, other parts of the process include the security measures to be taken to protect the community, including restrictions to be imposed on the offender. I accept the evidence of Mr Delphine and Ms Drever that disclosure of limited information may be counter-productive in these circumstances. This is an additional reason why it is contrary to the public interest for these documents to be disclosed.

32 Finally, I accept the evidence of Mr Delphine and Ms Drever that it is contrary to the public interest for offenders to learn details of the means by which premises are identified and assessed or of the risks relating to particular premises, as this may enable them to use such information to their advantage.

33 I therefore find the exemption under section 30(1) of the FOI Act is made out in respect of each of the documents.

34 The Department claims that each of the documents is exempt under section 31(1)(a) of the FOI Act and that documents 7-10 are exempt under section 31(1)(d) of the FOI Act. Ms Richards did not press for access to documents which may be caught by sub-section 31(1)(d) of the FOI Act.

35 Section 31(1)(a) of the FOI Act provides that a document is exempt if its disclosure under the Act would, or would be reasonably likely[12] to prejudice[13] either the investigation of a breach or possible breach of the law in a particular instance, or the enforcement or proper administration of the law[14] in a particular instance.

36 The words "in a particular instance" have been held to mean a specific aspect of the law or the subject of administration[15] and not the parole system in general[16].

37 The Department relies on the second limb of section 31(1)(a) of the FOI Act and contends that release would adversely affect the flow of full and frank reports to the Board by the Department, thereby impeding the proper administration by the Board of the parole system under the Corrections Act and the administration of supervision orders under the SSOM Act.

38 Ms Richards submitted that the documents concern environmental checks done prior to the release of Mr Jones on parole and therefore do not concern any action taken under the SSOM Act or the administration of that Act. It was submitted that Mr Jones was no longer on parole, and was no longer residing at the house at 137 Kent Street, and there was no evidence that release of the documents would adversely affect the administration of extended supervision orders. In addition, it was submitted that cases such as Haigh[17], Mallinder[18], Re Fogarty[19] and Re Lomax[20] are distinguishable because they concerned documents of a different nature to those of the present case.

39 In Re Lapidos[21], Deputy President Galvin refused the claim for exemption under section 31(1)(a) of the FOI Act on the basis that the investigation in question had long been concluded and he was not satisfied that prison officers would not cooperate with a similar investigation in the future.

40 I consider that the evidence of the Department's witnesses about the functions of the Board is not limited to its functions prior to the release of a prisoner on parole but also applies to the Board's functions in directing where an offender may reside pursuant to section 16(3) of the SSOM Act. I am satisfied on the basis of this evidence that disclosure of the documents would impede the administration of extended supervision orders under the SSOM Act. Any future decisions concerning accommodation for Mr Jones or other serious sex offenders will be adversely affected in my opinion by any interruption to the full and frank reporting by Departmental officers concerning accommodation options.

41 Accordingly, I find that the exemption under section 31(1)(a) is made out in respect of each of the documents.

42 Exemption is claimed under section 33(1) of the FOI Act for the personal affairs information of Mr Jones and other persons contained in documents 1, 2, 6, 7 and 10.

43 Section 33(1) of the FOI Act provides that a document is exempt if its disclosure under the Act would involve the unreasonable disclosure of information relating to the personal affairs of any person[22]. In deciding whether disclosure would have this consequence, an agency must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to endanger the life or physical safety of any person[23].

44 Determination of whether disclosure would be unreasonable requires a balancing of interests between the rights to personal privacy and the objects of the FOI Act to encourage community access to information in the possession of government agencies[24]. All of the circumstances must be considered, including the interests of the applicant in the information, the nature of the information, the circumstances in which it was obtained, whether the information has any current relevance and whether the person concerned would object to disclosure.

45 Ms Richards submitted that disclosure of the personal affairs information highlighted in orange was appropriate because the information was already in the public domain, having been disclosed to the Tribunal in the material filed by the Department pursuant to section 49 of the VCAT Act. Moreover, she submitted, details of titles and positions did not constitute information relating to the personal affairs of the persons involved, and disclosure would not be unreasonable.

46 I note that while public access to the Tribunal's proceedings files is governed by section 146 of the VCAT Act, Clause 30 of Schedule 1 to the VCAT Act provides as follows:

Despite anything to the contrary in section 146, the file kept by the principal registrar under that section in a proceeding under the Freedom of Information Act 1982 is not open for inspection or copying by any person.

47 In any event, having considered all the circumstances, I consider that disclosure of the information would be unreasonable for the following reasons.

48 First, I accept the uncontradicted evidence of Mr Delphine that officers and staff of CV, particularly operational staff, expect that because of the nature of the work performed and the frequent contact with offenders that is involved, the information would not be disclosed. This is particularly the case in high profile cases such as the present, where officers may fear recrimination from their involvement. I therefore consider that disclosure of the information would be unreasonable even where the individuals concerned have not written to the Tribunal to object to the disclosure of the information.

49 Second, I accept the evidence of the Board's Executive Officer that reports prepared by CV officers to assist the Board are submitted "in confidence" to the Board on the basis that they will not be disclosed, and that any information given to the Board which is not disclosed in a decision or reasons for decision of the Board is "confidential information" within the meaning of section 30(1)(b) of the Corrections Act.

50 Third, the information is of current relevance in the sense that Mr Jones is the subject of an extended supervision order for 15 years from 2005 and the identification and selection of suitable accommodation for him will be a matter for the Board during that period. Similarly, the role of any officers of CV and the Department in providing information or advice to the Board about suitable accommodation for Mr Jones may be ongoing. Fourth, the interest of Ms Simons is essentially a private one. The fact that she has generated publicity in the press about this case in recent months does not establish, without more, a public interest in disclosure of the personal affairs information sought by her.

51 Finally, there has been strenuous objection made to the Tribunal by Mr Jones, by some of the officers concerned and by the Department to disclosure of the information.

52 The exemption claimed under section 33(1) of the FOI Act is made out in respect of the personal affairs information contained in documents 1, 2, 6, 7 and 10.

53 Exemption is claimed under this section for documents 1, 2 ,6, 7 and 10.

54 Section 38 of the FOI Act provides that a document is exempt if the following three conditions are satisfied:

• There is an "enactment" in force;

• The enactment applies specifically to information of a kind contained in the document; and

• The enactment prohibits persons referred to in the enactment from disclosing such information (whether the prohibition is absolute or subject to exceptions or qualifications).

55 In this case, the secrecy provisions relied on by the Department in its written submissions are the following sections of the Corrections Act: section 91 in relation to documents 1, 2, 6, 7, and 10; section 30(1)(b) in relation to document 1, 6, 7 and 10; and section 30(1(d) in relation to documents 1, 2, 6, 7 and 10.

56 Section 91 of the Corrections Act provides that, except for the extent necessary to perform official duties, an officer must not disclose to any person except those specified in the section "information gained because of the officer's position as an officer or contained in a record, return or report prepared by the officer" under the Corrections Act. "Officer" is defined in section 85 of the Corrections Act to include a Regional Manager, community corrections officer or officer or employee in the Public Service who is working at a community corrections centre.

57 On the authorities, in order for section 38 of the FOI Act to apply to an enactment, the enactment must be formulated with such precision that it specifically "refers with particularity" to the information sought to be withheld[25]. It is not sufficient for this purpose for an enactment to prohibit disclosure of information identified only by reference to the capacity of the person who has received the information[26] or where the information is identified as having been obtained by a public servant in the course of his or her duty[27].

58 I consider that section 91 of the Corrections Act does not "refer with particularity" to the information sought to be withheld in this case. I note that it closely resembles section 30(2) of the Corrections Act prior to the amendment of that section in 1991[28], which was held in a number of cases to lack the requisite particularity to attract the operation of section 38 of the FOI Act. Accordingly, the exemption claimed by combination of section 91 of the Corrections Act and section 38 of the FOI Act is not made out in respect of any of the documents for which it is claimed.

59 Section 30(2) of the Corrections Act provides that a person who holds or has held a position must not, except to the extent necessary to perform official duties of that position, "record, disclose, communicate or make use of confidential information".

60 Section 30(1) of the Corrections Act defines "confidential information as including, relevantly:

(b)

information given to the Adult Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board for a decision of the Board; or

(c)

...

(d)

information relating to the personal affairs of a prisoner; or

61 Section 30(1) of the Corrections Act excludes from the meaning of "information relating to the personal affairs of a prisoner" information that is in the public domain.

62 The definition of "confidential information" was introduced by Act No. 19 of 1991. Prior to the amendment, the section had been held to be insufficiently specific about the nature or quality of the information required to attract the operation of section 38 of the FOI Act[29]. As amended, section 30(2) and the definition of "confidential information" have been found in a number of cases to achieve the degree of specificity required by section 38 of the FOI Act[30].

63 Section 30(2) of the Corrections Act provides that a person who holds or has held a position must not, except to the extent necessary to perform official duties powers or functions of that position, record, disclose, communicate or make use of confidential information. "Position" is also defined in section 30(2) of the Corrections Act and includes prison officers and public service employees working in a prison or with prisoners.

64 It was submitted on behalf of Ms Simons that even if section 30 of the Corrections Act is specific enough to attract section 38 of the FOI Act, only document 7, a document that was provided to the Board, would be exempt under section 38 of the FOI Act. The remaining documents would not be exempt, however, because they represent merely the fact-gathering exercise undertaken by the Department.

65 Counsel for the Department relied on Ms Drever's evidence that document 1 was provided to the Board and submitted that it fell within the terms of section 30(1)(b) of the Corrections Act and was exempt under section 38 of the FOI Act. He also submitted that section 30 of the Corrections Act applies to information given to the Board, not merely to documents given to it. Finally, he relied on Ms Drever's evidence that document 7 was provided to the Board and that document 6 contains details of discussions with the Board and submitted that documents 6 and 7 also fell within the terms of section 30(1)(b) of the Corrections Act.

66 I am satisfied that section 30 of the Corrections Act is specific enough to attract the operation of section 38 of the FOI Act. On the authorities, the focus of section 38 of the FOI Act is on the information contained in a document, not the document itself[31]. I accept Ms Drever's evidence in relation to documents 1, 6 and 7 and find that they fall within the terms of section 30(1)(b) of the Corrections Act and are exempt under section 38 of the FOI Act. In the absence of evidence as to whether document 10 or the information contained in it was ever provided to the Board, I am not satisfied that document 10 falls within the terms of section 30(1)(b) of the Corrections Act.

67 Exemption was also claimed for documents 1, 2, 6, 7 and 10 under section 30(1)(d) of the Corrections Act and section 38 of the FOI Act. In the light of my findings in relation to documents 1, 6 and 7, it is only necessary to consider documents 2 and 10.

68 Having examined document 2, I agree with Mr Delphine that it contains information concerning the personal affairs of Mr Jones. It is clear that this is also the case with document 10. Ms Richards submitted that the personal affairs information in documents 2 and 10 which was not in the public domain could be deleted under section 25 of the FOI Act, and the balance of the document released.

69 I am not satisfied on the evidence that the personal affairs information relating to Mr Jones in document 2 is information which is in the public domain. The claim for exemption under section 30(1)(d) of the Corrections Act and section 38 of the FOI Act is made out in relation to the personal affairs information in document 2 to which I have referred. However, I have already found this information exempt under section 33(1) of the FOI Act.

70 I have carefully read document 10 and consider that the personal affairs information relating to Mr Jones which is found in the first section of page 1, last two sentences of the second last bullet paragraph at page 6 of the document, is information which is in the public domain and therefore does not fall within the terms of section 30(1)(d) of the Corrections Act. I note that I have already found document 10 to be exempt under sections 30(1), 31(1)(a) and 33 of the FOI Act.

71 I consider that the remaining personal affairs information relating to Mr Jones at pages 5, 7 and 16 of document 10 is not in the public domain. It follows that this information falls within the terms of section 30(1)(d) of the Corrections Act and is therefore exempt under section 38 of the FOI Act.

Does the public interest require release of the documents under section 50(4)?

72 The Tribunal has a discretionary power to grant access to an exempt document where "the public interest requires", that is, demands, or necessitates[32] such disclosure, notwithstanding the factors that justified the claim for exemption in the first place. This power does not apply to section 33 of the FOI Act.

73 In this context, "the public interest" refers not to gratification of curiosity but to the benefit of the community as a whole and embraces matters of standards of human conduct and of the functioning of government and government instrumentalities[33].

74 It was submitted on behalf of Ms Simons that release of the documents will assist the public to determine for itself the adequacy of the environmental checks conducted prior to placing Mr Jones at 137 Kent Street and the adequacy of any review of those checks.

75 The Department relied on the public interest grounds summarised at paragraph 31 above.

76 I have already found in relation to the exemption claimed under section 31(1) of the FOI Act that disclosure of each of the disputed documents would be contrary to the public interest. In addition, in considering the exemption claimed under section 30(1) of the FOI Act, I have already found that disclosure of documents 2-10 would be contrary to the public interest.

77 As the Tribunal found in Mallinder[34], these proceedings are not an inquiry into the process by which the Department assists the Board in determining appropriate accommodation for serious sexual offenders. Nor are they an inquiry into CV's environmental scan process works or how the premises in Kent Street, Ascot Vale came to be selected as accommodation for Mr Jones. If such an inquiry were held, it would be possible to consider the ramifications of the release of the information in the context of the operation of the whole system of selection of accommodation for serious sex offenders. I am not in a position to consider those matters, nor to conclude that the disclosure of this information under the FOI Act will achieve the public interest contended for by Ms Simons.

78 There is no allegation of illegality or impropriety on the part of CV or the Department, nor of any ongoing public debate which would be meaningfully enhanced by release of the documents. Moreover, I consider that the public interest in the effective operation of the parole system, including the provision of full and frank reports by officers to the Board given the confidentiality provisions of the Corrections Act, and the Board's powers in relation to accommodation for serious sex offenders, outweighs Ms Simons' private interest in examining the process by which the property at 137 Kent Street came to be selected in a particular instance. I note also that the processes sought to be uncovered by release of the documents have not lost their currency just because Mr Jones came to be moved from 137 Kent Street within a day of being placed there. Mr Jones is the subject of an extended supervision order for 15 years from 2005. Many decisions may yet need to be made by the Board in regard to his accommodation. There are other serious sex offenders in respect of whom the Board may make decisions concerning accommodation.

79 Finally, I do not consider the public interest requires disclosure of any of the documents which I have found to be exempt.

80 I therefore consider it appropriate to affirm the decisions under review refusing access to the documents in the proceedings.

[1] The earlier version of the discussion paper is document 9 in the first proceeding.

[2] The Sex Offender Register is created under section 6F of the Sentencing Act 1991, and is maintained by Victoria Police.

[3] See Re Waterford and Department of Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588, 606, which was approved in Re Brog v Department of Premier and Cabinet (1989) 3 VAR 201, 208 and Re Pullen and Alpine Resorts Commission, (Unreported, AAT of Vic, Macnamara DP, 23 August 1996).

[4] Re Anderton and Medical Practitioners Board (Unreported, AAT of Vic, Macnamara DP, 13 June 1996).

[5] Re Pullen and Alpine Resorts Commission, (Unreported, AAT of Vic, Macnamara DP, 23 August 1996).

[6] Ryder v Booth [1985] VicRp 86; [1985] VR 869, 884.

[7] A useful list of such factors is to be found in Re Hulls and Victorian Casino and Gaming Authority (1988) 12 VAR 483; and Re Howard and Treasurer of the Commonwealth [1985] AATA 100; (1985) 3 AAR 169, 177-178.

[8] See Re Lomax and Department of Justice [1999] VCAT 2125; Re Mallinder and Office of Corrections (1988) 2 VAR 566, 582; Re Fogarty and Office of Corrections (1989) 3 VAR 214, 218, 235.

[9] Re McCubbin and Office of Corrections (Unreported, 14 April 1993, AAT, Galvin DP; Re Fogarty and Office of Corrections (1989) 3 VAR 214, 235).

[10] See Re Fogarty and Office of Corrections (1989) 3 VAR 214, 240.

[11] This was reinforced by the parties' agreement, during the course of the hearing, to further narrow the disputed documents by abandoning claims to access to large portions of some of the documents.

[12] The term "reasonably likely" does not mean more than likely than not to occur, but rather a chance which is real, not fanciful or remote: See Department of Agriculture v Binnie [1989] VicRp 73; [1989] VR 836, 842 per Marks J; which was applied in Re Elsing and Department of Justice (Unreported, 3 December 1998, VCAT, Galvin DP.

[13] In this context, "prejudice" means to "impede or derogate from"; See Sobh v Police Force of Victoria [1991] 1 VR 41, 55 per Nathan J.

[14] It is well accepted that the "administration of the law" in section 31(1)(a) of the FOI Act includes the administration or management of prisons and prisoners and the classification and parole of prisoners : See Haigh v Health Commission of Victoria (Unreported, 19 June 1984, County Court, Judge Rendit); Re Mallinder and Office of Corrections (1988) 2 VAR 566, 580; Re Fogarty and Office of Corrections (1989) 3 VAR 214, 231; Re Wiselenski (Unreported, 11 April 1990, AAT, Judge Duggan, p6; Re McCubbin and Office of Corrections (Unreported, 14 April 1993, AAT, Galvin DP); Re Brygel v Department of Justice (Unreported, 17 July 1996, AAT, Dep Pres Macnamara, p6).

[15] See O'Sullivan v Victoria Police Force (1986) 1 VAR 171, 176; Re Brygel and Department of Justice (Unreported, 17 July 1996, AAT, Macnamara DP, p6).

[16] See Re Lapidos and Office of Corrections (No.4) (1990) 4 VAR 283, 308-310.

[17] Haigh v Health Commission of Victoria (Unreported, 19 June 1984, County Court, Judge Rendit).

[18] Re Mallinder and Office of Corrections (1988) 2 VAR 566.

[19] Re Fogarty and Office of Corrections (1989) 3 VAR 214.

[20] Re Lomax and Department of Justice [1999] VCAT 2125.

[21] Re Lapidos and Office of Corrections (No.4) (1990) 4 VAR 283.

[22] Section 33(9) of the FOI Act provides that "information relating to the personal affairs of any person" includes information that identifies the person, their address or location, or from which such identity, address or location can reasonably be determined.

[23] See section 33(2A) of the FOI Act.

[24] See Re Page and Metropolitan Transit Authority (1988) 2 VAR 243, 245-6.

[25] News Corporation Ltd v National Competition and Securities Commission (1984) 1 FCR 64, 68.

[26] Ibid at 70.

[27] Commissioner of Taxation v Swiss Aluminium (1986) 10 FCR 321, 324; Re Harrigan v Department of Health (1986) 72 ALR 293, 294-295; Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1984) 1 FCR 80, 84-85.

[28] Prior to its amendment in 1991, section 30(2) of the Corrections Act provided: "A person who holds or has held a position must not, except to the extent necessary to perform official duties, powers or functions of that position, record, disclose, communicate or make use of confidential information".

[29] See Re Mallinder and Office of Corrections (1988) 2 VAR 567, 575-578.

[30] See Knight v Department of Justice (1994) 8 VAR 52, 62; Alan Brygel v Department of Justice (Unreported, 17 July 1996, AAT, Macnamara DP, p15); Re Elsing and Department of Justice (Unreported, 3 December 1998, VCAT, Galvin DP). In one case, however, Galvin DP was not so satisfied: See Re Tilley and Department of Justice (1993) 6 VAR 104, 111-12.

[31] Re Birrell and Department of Premier and Cabinet [1990] VicRp 5; [1990] VR 51.

[32] See Secretary to Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331.

[33] See DPP v Smith [1991] VicRp 6; [1991] VR 63.

[34] See Re Mallinder and Office of Corrections (1988) 2 VAR 566, 583.