State of Victoria v Brazel [2008] VSCA 37

27 For the purposes of this appeal, we accept that a narrow claim of PII could properly be maintained with respect to specific prison security information which was shown to be both current and highly sensitive. The task for the State was to demonstrate that the information in issue here was of that character. For reasons which follow, the State has failed to do so. It is unnecessary, therefore, to consider further how the putative PII category might be defined.**

28 As has been seen, the disclosure of the plan was said by Mr Wise to be contrary to the public interest because it would -

• compromise the security of the Acacia Unit;
• put at risk the safety of State employees; and
• undermine the maintenance of good order within the prison.[31]

The concern identified by Mr Delphine was that, if Mr Brazel were to learn the layout of the 'non-prisoner areas' and the location of security cameras, he was 'likely to try to exploit that information should he, at any time, be moved back into the Acacia Unit.'[32] (As noted earlier, Mr Brazel's unchallenged affidavit evidence was that he already had this knowledge).

**29 The trial judge concluded that disclosure of the plan 'could harm the governance of Acacia Unit and the Barwon Prison', and was therefore contrary to the public interest. (This description of the relevant public interest was considerably broader than that asserted in the State's affidavits. On the appeal, senior counsel for the State confirmed that the claim was based on potential prejudice to prison security, not on prison governance more broadly.) The judge concluded, however, that the use or potential use of the information in the plan 'goes to the issues at the heart of Mr Brazel's case on liability', and that the public interest in the administration of justice should therefore prevail.

30 In relation to the report, the view expressed by Mr Wise was that its release would compromise -**

• the security of the Acacia Unit;
• the safety of other prisoners; and
• the safety of the State's employees and agents.[33]

Mr Delphine's view was that disclosure of the report would 'threaten the security and good order of the prison.'[34]

**31 Both the Wise and Delphine affidavits are expressed in quite general terms, as if release of any part of the report would be detrimental to prison security. This is puzzling since, as Mr Delphine's affidavit itself disclosed, Mr Brazel had by November 2006 received an edited version of the report (EV1) in response to a request under the Freedom of Information Act 1982.[35] The full report is 30 pages long. In version EV1, Mr Brazel was given 18 pages of text, in whole or part. By the time the matter came on for hearing, the scope of the dispute had narrowed a good deal further. A second edited version (EV2) had by then been provided to Mr Brazel's legal advisors, in which previously undisclosed portions of the report - amounting in total to an additional 4-5 pages - were disclosed.

32 The trial judge accepted that the PII claim was established with respect to the undisclosed portions of the report, on the basis that there was a public interest in 'maintaining good order, and providing proper security and protection for prisoners and prison staff in a custodial institution'. His Honour appears to have accepted the State's argument that**

a disclosure of those portions of the report over which the claim of immunity persists would expose vulnerabilities and potential vulnerabilities in security and monitoring systems.

Once again, however, the decision to reject the PII claim in respect of certain of the undisclosed portions of the report reflected his Honour's conclusion that the public interest in the administration of justice should prevail. This was because

much of what is presently blacked out in the report deals with subjects that are very much at the heart of the disputed issue of liability. To deny access to this material would be to inhibit, unfairly as between the parties, the ability of Mr Brazel and his legal and expert advisers to evaluate and prepare to litigate this issue. [36]

His Honour ordered that 21 specified portions of the report be released.[37] The State's appeal initially covered all of these portions, but the appeal with respect to five of the 21 portions was subsequently abandoned.

33 The essential complaint made on this appeal is that the judge did not properly weigh the competing public interests. The State submitted that the judge had failed to give any real weight to the public interest in the maintenance of prison security and had given undue weight to the importance of the information to Mr Brazel in the litigation. According to the written submission -

[H]is Honour did not bring into balance in any real way the consequences of providing the disputed documents to [Mr Brazel] on the terms that he imposed. His Honour did not consider why the danger to public security posed by the release of the documents should be outweighed by the rights of [Mr Brazel] in civil litigation.

The State also objected to the grant of access to Mr Brazel himself (as distinct from his lawyers and any expert witnesses).

34 Counsel for Mr Brazel argued that the reasons for judgment showed clearly that his Honour had carried out the requisite balancing exercise and was correct to grant access to the information.

The public interest in the administration of justice in permitting [Mr Brazel] to have access to disputed documents, being documents of such central relevance to [Mr Brazel's] case on liability, is very strong. In such circumstances, the competing interest of the public in denying [Mr Brazel] access to the disputed documents would have to be very strong indeed to outweigh the public interest in the administration of justice served by permitting [Mr Brazel] to have access to the documents.

[Mr Brazel] submits that the potential harm to the governance of the Acacia Unit, or the Barwon prison generally, arising from the disclosure of the disputed documents to [Mr Brazel] does not constitute a public interest that is so overwhelmingly strong that it should have prevailed in the balancing exercise.

35 Before considering whether error has been shown, it is necessary to address the competing arguments which were advanced concerning the nature of this appeal.

The nature of an appeal concerning a claim for PII

36 Counsel for Mr Brazel submitted that the judge's decision to disallow the PII claim was an exercise of discretion, so that the decision could only be interfered with on appeal if error of the kind identified in House v R were shown.[38] The decision was said to be discretionary -

in the sense that once a court determines that documents fall within one of the categories of public interest immunity, the court may or may not order that those documents be produced by the party taking objection for inspection by the opposing party. In order to decide whether to order production of the documents, the court must carry out a balancing exercise between two conflicting aspects of the public interest ...

Reliance was placed, by analogy, on the decision of this Court in Mobil Oil Australia Ltd v Guina Developments Pty Ltd.[39] In that case objection had been taken on the grounds of commercial confidentiality to the production of certain discovered documents. The unanimous view of the Court was that the decision to permit inspection of the disputed documents involved the exercise of a judicial discretion, attracting on appeal the principles laid down in House v R.[40]

**37 The State argued that the judge's decision was not to be characterised as a discretionary judgment. The appeal court must decide for itself whether PII does or does not attach to the relevant information.

38 In our view, a decision to uphold, or reject, a claim of PII is not an exercise of discretion. Although the task of balancing competing public interests might at first appear to have characteristics in common with a discretionary judgment,[41] we think that the determination of the immunity question is of a different character. There is, in our view, a direct parallel with the decision as to whether a particular document is immune from production on the ground of legal professional privilege. That is a question of substantive law about 'an important common law immunity'.[42] On appeal, the question is whether the decision was erroneous, not whether it fell within the 'limits of a sound discretionary judgment'. [43]

39 This conclusion accords with what happens in practice. Appellate courts have consistently decided PII appeals on their merits. The members of the appellate court - conducting a conventional appeal by way of rehearing - have carried out the balancing exercise for themselves, and for that purpose have inspected the documents in issue.[44]

40 It was contended for Mr Brazel that the approach of the Full Federal Court in Commonwealth v Northern Land Council[45] was different. We disagree. In that case, a single judge had ordered that the Commonwealth produce (for inspection by the legal representatives of the plaintiff Council) documents recording Cabinet deliberations. Without inspecting the documents himself, the judge expressed the view that the information was likely to assist the Council's case and that the public interest in favour of granting inspection clearly outweighed the public interest in denying inspection. The Full Court of the Federal Court dismissed an appeal from the order.

41 The Full Court did not treat the decision of the single judge as discretionary in character, except in one respect. The Full Court considered on its merits, and rejected, the Commonwealth's submission that the Cabinet notebooks in question constituted a class of documents which, regardless of any assessment of competing interests, was to be treated as immune from disclosure in judicial proceedings.[46] After describing the balancing which must be undertaken of the competing aspects of the public interest,[47] the Court turned to consider the question of inspection by the judge - in order to assess whether the immunity claim should be upheld - and then the question whether -**

the most appropriate course is to allow confidential inspection by the legal advisers to the parties who may, then properly informed, assist the court upon the question whether a general disclosure is necessary. That is a matter of evaluation and discretion which is peculiarly the role of the judge entrusted with the management of the case. The decision of the judge is not to be interfered with on appeal unless some error of principle can be demonstrated either explicitly or by implication from the way in which the discretion has been exercised in the case in question.[48]

By the order under appeal his Honour did no more than to procure the assistance of the legal advisers to the parties on a confidential basis to enable him to make a fully informed decision on the question of any wider disclosure of the documents in issue. For these reasons it must be concluded that the learned primary judge did not err in exercising his discretion and that the appeal must be dismissed with costs.[49]

**42 Thus, the only decision which the Full Court characterised as discretionary was the decision by the judge, following his conclusion that the claim for immunity failed, to permit confidential inspection by the legal representatives for the party seeking access to the document, in order to determine whether any wider disclosure was justified. The High Court upheld the Commonwealth's appeal,[50] but there is nothing in the joint judgment in the High Court to suggest that the appeal was treated as an appeal from an exercise of discretion. On the contrary, the High Court approached the question of immunity on the basis that it was for the court itself to decide whether the immunity attached.

43 It is clear, in our view, that the question whether PII attaches is a question of substantive law, appellable (subject to a grant of leave in interlocutory proceeding) on its merits. The mechanical question of how access is to be granted, which only arises once the claim for immunity has been rejected, might well be thought to be discretionary in character. But, since the assessment of the harm likely to follow from disclosure will often involve - necessarily - a consideration of the terms on which inspection might be permitted,[51] it is probably artificial to treat the inspection question as separate from the balancing exercise.

44 Before the trial judge, so counsel informed us, the State advanced both a class claim and a contents claim for PII. This classification of PII claims has been described as 'rough but accepted'.[52] As the High Court said in Commonwealth v Northern Land Council, the classification -**

serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents.[53]

Since Sankey v Whitlam, however, it has been accepted that, even where documents fall within a class of documents 'in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents', the immunity from disclosure is not absolute.

The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to the court of access to relevant and otherwise admissible evidence.[54]

45 Thus, even where a class claim is made, inspection of the particular documents may be necessary and the content of the document may have a bearing on the decision as to whether immunity attaches or not.[55] In the present case, the judge approached the PII claim as a contents claim, evidently finding it unnecessary to decide whether a class claim could be made out.

**46 We have inspected the documents for ourselves. In our view, the judge's decision to reject the PII claim was clearly correct. As will appear, we have concluded that the PII claim failed at the threshold, that is, no case for secrecy was made out. On this view, the learned judge's conclusions were, with respect, unduly favourable to the State. Our reasons are as follows.

47 Axiomatically, the decision on any PII claim depends upon the circumstances in which the claim is made. Everything turns on the character of the particular information in issue and the nature of the particular litigation (or administrative investigation) in which the occasion for disclosure of the information arises. Before embarking on the balancing exercise, the Court must assess the strength of the arguments for non-disclosure and disclosure respectively. The Court must scrutinise carefully what is said to be the potential damage to the public interest if the information is disclosed and, equally, what is said to be the significance of the information in the litigation.

48 Gibbs CJ elucidated the process in Alister v The Queen,[56] as follows:**

... [T]he court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - ie., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.

**49 As to the damage which may result from disclosure, it is necessary to consider whether the content of the document is 'current and controversial'.[57] Obviously, if the information is out-of-date, the risk of injury to the public interest is likely to be much reduced, if not non-existent. The need for secrecy may be short-lived or long-lasting. Everything depends on the subject-matter and content of the information in question.[58]

50 Both documents - the plan and the report - came into existence before the end of 1998. As at the date of the appeal hearing, therefore, they were approximately nine years old. That they are old documents would not, of course, matter had it been shown that the information was still current, that is, that the plan accurately described the Acacia Unit as it is today and that such security deficiencies as the report records as having existed in October 1998 were still in existence. But the evidence filed by the State did not begin to approach that degree of specificity. All that was said on this subject was contained in Mr Wise's further affidavit:[59]**

While some of the Unit's security systems have been changed since the time of the incident ... much of the security remains the same.

Release of the [plan] and the [report] ... would reveal what security was present and largely continues to be present.

51 It will be recalled that Mr Brazel's affidavit in response[60] asserted that the Acacia Unit -

underwent major rebuilding and renovation in 2004 and that additional security measures were introduced in 2005. ... I believe that the Acacia Unit as it presently exists is substantially different to the Unit which existed at the time I was assaulted ...

That affidavit was sworn on 2 July 2007. Its contents were not disputed by senior counsel for the State on the hearing of the appeal.

52 In those circumstances, we are unable to be satisfied that any part of the plan or any of the relevant parts of the report has current security sensitivity. That conclusion is strengthened by the absence of any challenge to Mr Brazel's evidence that:

• in 1999 he was given a complete version of the report and the plan;
• between 1999 and 2006 he was in possession of a video of the Acacia Unit, including footage of the officer viewing area; and
• during his time as a prisoner in Acacia Unit, he had access to all areas of the Acacia Unit and was well aware of all aspects of the security systems (cameras, keys, locks, alarms and so on).

**53 These matters are relevant for two reasons. The first is that the State has articulated its PII claim by reference to the harm which it is said would be done to the public interest if Mr Brazel had access to this information. As noted earlier, the State's concern is that Mr Brazel may 'exploit' the information himself, and pass it on to others. On the unchallenged evidence, Mr Brazel has already had all of the relevant information and has long since had opportunities to exploit it and pass it on, if he were so minded. Moreover, his own ability to exploit the information is now almost non-existent, given that he is not in the Acacia Unit and has no wish to return there, and there is no present plan to place him there.

54 Secondly, and of more general importance, it has long been accepted that prior publication is a very significant obstacle to the upholding of a PII claim. It is not surprising that this should be so. Lord Blanesburgh said as long ago as 1931, 'The privilege, the reason for it being what it is, can hardly be asserted in relation to documents the contents of which have already been published.'[61] To confer immunity on documents sought by a person who has long since been in possession of the information which they contain would be to achieve 'a result ... little short of being ridiculous'.[62] Nor would it have mattered if Mr Brazel had obtained the information by unauthorised means. (It has not been suggested that he did). As Stephen J said in Sankey v Whitlam, 'It is the fact of prior publicity that is material, not the particular medium by which publicity has been obtained.'[63]

55 But there is an even more fundamental difficulty with the immunity claim, at least so far as it concerns the report. Quite simply, most of the report's contents - including portions which are the subject of this appeal - could never have attracted PII on the basis claimed by the State. The information in question is not concerned with, and reveals nothing about, security systems in the Acacia Unit, nor could its disclosure have ever given rise to any risk to other prisoners or prison staff.

56 By way of illustration, substantial parts of the report describe, in matter-of-fact terms, what occurred before, during and after the assault on Mr Brazel. When version EV1 (released under FOI) was given to Mr Brazel, these sections were disclosed in part. By the time of the Court hearing, substantial further portions had been disclosed to Mr Brazel (in version EV2). The following was one such portion, which appears in the report under the heading 'Response to the Incident':**

Immediately on advising other staff of the incident PO ____ who was the Gate Officer on the day, proceeded to unlock the unit entry gates in order to allow responding staff access to the unit. He then handed his keys to Supervisor ____ , collected a baton and entered Unit Two with SPO ____ and PO ____ . On entering the Day Room PO ___ observed five prisoners who seemed to be agitated and milling around. One prisoner said, "What's going on" to which SPO ____ replied, "You are all going to be locked away". SPO ____ assisted in the securing of prisoners and also observed Brazel in the exercise yard covered in blood. The prisoners were secured in their cells without further incident. PO _____ then opened the gate to Yard Four and observed Brazel staggering towards the hand basin at the rear of the yard. Brazel commenced to wash himself at the basin for a short period and then walked towards PO ____ and said, "I want to go to my cell, Lock me away". Whilst in the Yard PO ______ observed several items as follows:

• Electric Sandwich maker
• Metal tube from a vacuum cleaner
• The seat section from the exercise bike in the yard

Whilst the area and prisoners were being secured, Supervisor ____ had called for medical assistance and briefed Health Service Officer ____ on his arrival in the unit. Nurse ____ Pacific Shores Health Service was also briefed on arrival in the Unit. Supervisor ____ continued to manage access to the unit area whilst Operations Manager _____ took control of the crime scene.

A log of events at the scene records Medical staff initially attending to Brazel at 1503 hours and again at 1510 hours.

SESG members responded to the duress alarm and their response time to the incident was two and one half minutes.

We are at a loss to understand how it could ever have been thought that a court would uphold an immunity claim on the ground that the disclosure of this information would be damaging to the public interest in prison security and safety.

57 Another part of the report, originally withheld but disclosed before the hearing (in version EV2), sets out 'an analysis of entries in the Search and Inspection Register for the period 24 August 1998 to 1 October 1998'. The first five entries will serve to illustrate the anodyne nature of the information:

• On 24 August the damage to the window in Day Room Two is noted
• On 29 August Unit exercise equipment removed from ____ cell
• On 29 August Dayroom cookware removed from _____ cell
• On 4 September damage to a cell shower tidy and mirror is noted
• On 6 September a broken chair in Yard 1-2.

On no reasonable basis could it be suggested that disclosure of these entries could harm the public interest. Other portions excluded from version EV1 (names and comments of participants excluded) but included in version EV2 dealt with the 'Incident debriefing' held on 7 October 1998 (names excluded) and the 'Incident re-enactment' held on 9 October 1998 (released in part in EV2). Further reference is made to these sections below.

**58 It is also instructive to examine the five portions of the report which the judge ordered be disclosed, over the State's objection, but in respect of which the State has now abandoned its appeal. Of these, the most striking is a section of the report entitled 'The Suspects', extending to two and a half pages.[64] As the heading suggests, this part of the report identifies the five prisoners who were suspected of having participated in the assault on Mr Brazel. In relation to each suspect, the report describes the sentence he was serving and lists the 'incidents' recorded against him during his time in prison.

59 This information had no sensitivity of any relevant kind. Its disclosure could not conceivably have affected prison security or the safety of officers or prisoners. It was purely factual material, and years out of date. By the time the present litigation began, the five 'suspects' had stood trial in the County Court on charges of intentionally causing serious injury to Mr Brazel.[65] We assume, moreover, that much of what the report recorded about their misbehaviour in jail would have been well known to Mr Brazel. But even if it was not known to him, the PII claim was always untenable.

60 We turn to consider the portions of the report which the State on this appeal maintains should not be disclosed:**

• Item 2: this is a two sentence paragraph, in the section of the report headed 'Events Prior to the Incident'. That section has otherwise been disclosed in its entirety (excluding names). Remarkably, the second of the two sentences was disclosed to Mr Brazel in version EV1, provided under FOI.[66] It is hardly surprising that this should have occurred, given that the sentence records a statement made by Mr Brazel, that -

he did nothing to incite the situation and was surprised when the prisoners commenced to assault the window.

What is surprising is that the State should have maintained the immunity claim with respect to this sentence, notwithstanding its earlier disclosure.

The first sentence (which has not previously been disclosed) begins:

Anecdotal evidence, from prisoner sources, suggests ...

What follows is a suggestion as to how Mr Brazel himself might have contributed to the incident. No claim for PII should ever have been made with respect to that sentence. It has nothing whatsoever to do with prison security or safety. The circumstances of the assault have been exhaustively ventilated, in public, in the criminal trials which followed.

• Item 3: this is a section, covering almost an entire page, in the part of the report entitled 'The Incident'. The disputed portion falls into three sections, each beginning with the following (or similar) words:

Anecdotal evidence, from prisoner sources, suggests ...

What follows are, respectively: a possible chronology of events for the incident; comments as to how long the 'assault on the window' lasted, including a statement said to have been made by Mr Brazel himself; and suggestions as to whether or not the assault was pre-planned. There is nothing in the content of this section which could support a claim for PII. The claim should never have been made.

• Item 4: this is a four line section, also in the part of the report headed 'The Incident'. It contains some general statements about alarm systems within the Acacia Unit. Even assuming - which seems most improbable - that the information is still accurate more than nine years later, its disclosure could not conceivably harm prison security.
• Item 5: this is a full page section, also in the part of the report entitled 'The Incident'. It sets out the results of what is described as an 'analysis of the alarm activation records for 1 October 1998'. For the most part the content comprises a list of the precise times at which particular alarms were activated. Disclosure of this information could not conceivably harm prison security.

There is a brief reference to what is described as 'a standard procedure'. Again, what is revealed is no more than any sensible person would assume would occur when an alarm was activated. The claim for PII is, and always was, untenable.

• Item 6: this is a four line section in the part of the report headed 'Response to the Incident'. It deals in the most general way with the practice adopted in the Acacia Unit to allocate responsibility for supervising prisoners. There is no reference to the Brazel incident. The release of the information could not conceivably harm prison security, even assuming - which seems most improbable - that the practice identified is unchanged nine years later.
• Item 8: this is a five word phrase, constituting one dot point in a list of four, in a part of the report - 'Ongoing Response' - which has otherwise been disclosed in full. The following extract gives the context:

A series of reports and information have been called for regarding options for enhancement of issues that were immediately identified as a result of the incident.

Building Services Agency has provided preliminary advice regarding:

• External Perimeter Windows
• Internal Glazing Grills
• [Item 8]
• Upgrade of CCTV capability.

The missing dot point identifies a fourth topic with respect to which 'preliminary advice' has been received. The words give no indication of what the advice was. Once again, part of what the judge ordered be disclosed - and which the State wishes to withhold - had already been disclosed to Mr Brazel. He was given, in version EV2, the first and last words in the dot point: 'Improved ... Alarms'. That partial disclosure suggests that a specific decision was made to withhold the middle three words as having particular sensitivity, but that no (sufficient) sensitivity attached to justify refusing to disclose the fact that 'preliminary' advice had been received (nine years earlier) regarding 'improved alarms'. The basis of the decision to withhold the remaining three words was not communicated to the Court at the hearing or on the appeal, and we are unable to see any basis for the claim that the three words attract PII.

61 Items 18 and 19 comprise two pages of a three-page attachment entitled 'Debrief - Re-enactment of Acacia Incident on Thursday, 1 October 1998' (released in part in EV2). In version EV2, the State disclosed to Mr Brazel a section of the report entitled 'Incident Re-enactment', which describes the re-enactment in these terms:

On 9 October 1998 a re-enactment was conducted to measure various factors in relation to the smashing of a window in a similar location to the one involved in the incident.

• The level of security afforded by the window;
• The timeframe for the window to be breached and entry to be gained to the exercise area;
• Noise levels within the Unit; and
• Alarm activation.

A debriefing was held immediately following this re-enactment.

**62 The document of which items 18 and 19 form part is evidently the minutes of the debriefing meeting held after the re-enactment. Seventeen people are recorded as having been present. The minutes attribute brief comments (one or two lines) to individual observers. Apart from the concluding comment attributed to the General Manager, the document records no conclusion or consensus about what the re-enactment revealed about security issues, less still any recommendations about any changes which might be required. It is simply a list of disparate individual remarks, none by itself having any apparent security sensitivity.

63 This view is reinforced by the fact that in version EV2, the State provided to Mr Brazel - in full, though with names deleted - the part of the report entitled 'Incident Debriefing'. Its content is as follows:**

The Incident debriefing was held on 7 October 1998 and Chaired by _____ Manager, Continuous Improvement Unit. All persons in attendance were provided the opportunity to comment in relation to the incident.

_____ , the General Manager, Barwon provided an overview of the incident and individual staff members provided their recollections of the incident.

Positive comments were made in relation to the Acacia Unit staff response to the incident and to medical staff who continued in their efforts to provide treatment to the injured prisoner. Doctor _____ was also praised for the manner in which he was eventually able to convince Brazel to agree to hospital treatment.

Comments were made in relation to the fact that unit staff had not heard the breaking of the window. Staff commented on the general level of noise within the unit, the distractions caused by wind, telephones, PA system, and prisoner radios.

Technical Officer, ______ commented that the security rating of the glass should not have allowed penetration in less than thirty minutes.

Chief Prison Officer ______ commented that there were insufficient brown paper bags for the collection of prisoner clothing in relation to crime scene preservation.

The General Manager, Barwon then advised the meeting that a re-enactment of the incident would be conducted in order to gain a further understanding of some of the issues raised at the debriefing.

What was here disclosed gives a much clearer indication of what were perceived as security issues than do the sketchy minutes which the State seeks to withhold.

64 Version EV2 also included this passage relating to the re-enactment:

_____________, Associate Director, Building Services Agency, commented on his surprise at the speed with which the window was forced. This did not reflect the initial testing that was conducted at the time of construction. He also commented that the glass from the incident itself appeared to be of a different construction from the glass breached during the re-enactment.

Again, this passage - which has been disclosed - gives a fuller account of what was said by the relevant official than do the brief minutes of the same meeting which the State still wishes to suppress.

**65 The only disputed portions of the report which might ever have justified a public interest argument are those which his Honour identified as Items 12-17 and 20-21. Item 12 sets out the results of the re-enactment. Items 13-17 are in the part of the report headed 'Observations and Findings', in the section entitled 'Factors Contributing to the Incident.' They contain comments about how various security features of the Acacia Unit responded during the incident, and about improvements which might need to be made. Some shortcomings are identified. Items 20-21 are in a document headed 'Action Plan - Acacia Unit'. They list security 'issues', in the most general terms.

66 We have already referred to the complete lack of evidence from the State as to whether anything identified in these portions as an actual or potential security deficiency is in the same condition now as it was nine years ago. We think it most improbable that this would be so. After all, the very purpose of an incident review report like the one in issue here is to identify deficiencies in order that they may be rectified, so as to minimise the risk of a similar incident occurring in the future. To have rectified the identified deficiencies would be no more than would be expected of the State in discharge of its duties of care to staff and prisoners respectively. Even allowing for budgetary constraints, nine years is quite long enough for the rectification works to have been completed.

67 For these reasons, we consider that the State has failed to satisfy the threshold test - of potential damage to the public interest - in respect of any of the disputed portions of the report. No occasion arises therefore to undertake the balancing exercise.

68 This conclusion - and the analysis on which it is based - should provide a salutary lesson for any government official or agency contemplating a claim for public interest immunity. Since immunity will not be lightly conferred, it should not be lightly claimed. Contrary to the assumption on which the State appears to have acted in this interlocutory litigation, it is never enough merely to assert - as if it were self-evident - that disclosure of the information in question will harm some particular aspect of the public interest. The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.

69 We wish to say something finally about the deletion of names from the parts of the documents ordered to be released. We noted earlier his Honour's view that there was a sound basis for the claim for immunity concerning the identities**

of persons involved in the review, or interviewed about the incident and related matters, apart from Mr Brazel and those prisoners involved in the attack on him.

There is no cross-appeal on this point but we feel bound to express, with respect, some scepticism as to whether any proper basis was - or could have been - made for the concealment of the names. Concealment of a person's identity could only be justified, in our view, if a clear case was made that the identification of that person as having made a particular comment, or provided particular information, in the course of the review or investigation of the incident would expose that person to danger. It is perhaps unsurprising that the State did not attempt to make out any such case. To take the re-enactment debriefing minutes as an example, we are unable to see how disclosing the identity of an officer who made a particular observation about some aspect of the re-enactment could give rise to any legitimate concern.

Public interest in the administration of justice

**70 We turn finally to the competing public interest in the administration of justice. Although it is strictly unnecessary for us to address this issue in view of our earlier conclusions, we wish to express our complete agreement with the trial judge's view that the information in question goes to the heart of the issues in the litigation which Mr Brazel has instituted. As noted, some parts of the report provide a contemporaneous assessment of security shortfalls at the Acacia Unit. Self-evidently, that will be centrally relevant to Mr Brazel's negligence case.

71 It is, we think, an important feature of this litigation that it concerns the duty of care owed by the State to a prisoner in its custody. Counsel for Mr Brazel drew attention to the recent decision of the High Court in New South Wales v Bujdoso.[67] That case, like the present, concerned a claim by a prisoner that the State had breached its duty of care to him when he was assaulted by other prisoners. The High Court unanimously upheld the decision of the Court of Appeal of New South Wales that there had been a breach of that duty.

72 Relevantly for present purposes, the High Court said this:**

It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care. But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community. A prison may immediately be contrasted with, for example, a shopping centre to which people lawfully resort, and at which they generally lawfully conduct themselves. In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards. No one except the authority can protect a target from the violence of other inmates. Many of the people in prisons are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners.[68]

the need to consider the particular nature of the proceedings in which the claimed Crown privilege arises in order to determine what are the relevant aspects of public interest which are to be weighed and what is to be the outcome of that weighing process.[69]

In that case, the claim for immunity was made in the course of a private prosecution of former ministers for conspiracy to effect an unlawful purpose under Commonwealth law (by procuring unauthorised foreign loans). In Stephen J's view, the character of the proceedings

must raise doubts about the reasons customarily given as justifying a claim to Crown privilege for classes of documents, being the reasons in fact relied upon in this case. Those reasons, the need to safeguard the proper functioning of the executive arm of government and of the public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges: inappropriate because what is charged is itself the grossly improper functioning of that very arm of government and of the public service which assists it.[70]

His Honour considered that to uphold the PII claim in that case would 'come close to conferring immunity from conviction upon those who may occupy or may have occupied high offices of State'.[71]

**74 There is, we think, a strong parallel with the present case. It would seem 'curiously inappropriate' to uphold a claim of PII in respect of a report disclosing shortcomings in the security arrangements in the Acacia Unit when Mr Brazel's case alleges shortcomings of exactly that kind. Courts should be slow to uphold claims of PII where to do so will have the effect of inhibiting the investigation, by proper process, of allegations of negligence or maladministration by public officials.

[1] See [31] below.

[2] Affidavit of Roderick Wise sworn on 9 November 2006, [5].

[4] Affidavit of Paul Vincent Delphine sworn on 24 November 2006, [17].

[6] Affidavit of Gregory John Brazel affirmed on 25 November 2006, [19].

[8] See [49] and [54] below.

[9] [1968] UKHL 2; [1968] AC 910, 940.

[10] Affidavit of Roderick John Wise sworn on 20 June 2007 (emphasis added).

[11] See [7] above.

[12] Affidavit of Gregory John Brazel sworn on 2 July 2007, [8].

[14] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4, [180] (Crennan J).

[15] See Sankey v Whitlam (1978) 142 CLR 1, 38-9 (Gibbs ACJ), 58, 63-4 (Stephen J), 95-6 (Mason J); Jarvie v The Magistrates' Court of Victoria Brunswick [1995] VicRp 5; [1995] 1 VR 84, 88 (Brooking J).

[16] In State of Victoria v Nine Network [2007] VSC 431, Osborn J considered similar issues in connection with a confidentiality claim by the State regarding documents of Corrections Victoria.

[17] (Unreported, Supreme Court of Victoria, J H Phillips J, 14 May 1986).

[18] [2004] NSWSC 562; (2004) 148 A Crim R 74.

[20] Affidavit of Paul Vincent Delphine sworn on 24 November 2006, [16].

[21] (1994) 34 NSWLR 667.

[22] See, for example, Sankey v Whitlam (1978) 142 CLR 1, 61-2, 65-6 (Stephen J).

[23] Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, 674-5.

[24] [1977] UKHL 1; [1978] AC 171, 231 (Lord Simon).

[25] Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, 675 (other references omitted).

[26] [1977] UKHL 1; [1978] AC 171, 231 (Lord Simon).

[27] The Court had sought submissions on the question whether the PII claim was founded on an existing or, alternatively, a novel PII category.

[28] [1999] NSWCCA 166; (1999) 46 NSWLR 681, 693.

[29] [2006] VSCA 85; (2006) 15 VR 22, 32.

[31] See [4] above.

[32] See [5] above.

[33] See [4] above.

[34] See [5] above.

[35] Affidavit of Paul Vincent Delphine sworn on 24 November 2006, [23].

[38] [1936] HCA 40; (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).

[39] [1996] VicRp 54; [1996] 2 VR 34.

[40] Ibid 41 (Hayne JA with whom Winneke P and Phillips PA agreed).

[41] See, for example, Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 (Mason and Deane JJ).

[42] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 552-3 [9], [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[43] The same is true, for example, of decisions about admissibility of propensity evidence under s 398A of the Crimes Act 1958: R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412, 419 (Winneke P).

[44] See Conway v Rimmer [1968] UKHL 2; [1968] AC 910, 954 (Lord Reid); Sankey v Whitlam (1978) 142 CLR 1; Alister v The Queen (1984) 154 CLR 404.

[50] Commonwealth v Northern Land Council [1993] HCA 24; (1995) 176 CLR 604.

[51] See also Sankey v Whitlam (1978) 142 CLR 1, 98-9 (Mason J).

[52] Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090, 1111 (Lord Wilberforce).

[53] [1993] HCA 24; (1992) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

[57] Sankey v Whitlam (1978) 142 CLR 1, 97, 98, 99-100 (Mason J); Commonwealth v Northern Land Council [1993] HCA 24; (1995) 176 CLR 604, 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).

[58] Sankey v Whitlam (1978) 142 CLR 1, 41-2 (Gibbs ACJ).

[59] Affidavit of Roderick John Wise sworn on 20 June 2007, [5]-[6].

[60] Affidavit of Gregory John Brazel sworn on 2 July 2007, [19].

[61] Robinson v South Australia (No 2) [1931] AC 704, 718.

[62] Sankey v Whitlam (1978) 142 CLR 1, 65 (Stephen J), citing Conway v Rimmer [1968] UKHL 2; [1968] AC 910, 950 (Lord Reid).

[63] Ibid 70; see also 45-6 (Gibbs ACJ).

[64] The relevant portions were identified as items 9, 10 and 11 in his Honour's order for disclosure.

[65] See R v Johnson, Sonnet and Paisley [2001] VSCA 242.

[66] Exhibit "PVD 5" to the affidavit of Paul Vincent Delphine sworn on 24 November 2006.

[67] [2005] HCA 76; (2005) 227 CLR 1.

[68] Ibid 13-14 [44] (emphasis added).

[69] (1978) 142 CLR 1, 60, 62; Alister v The Queen (1984) 154 CLR 404.

[70] (1978) 142 CLR 1, 56.