Victorian Civil and Administrative Tribunal|2010-04-16

Western Suburbs Legal Service Inc v Department of Justice (General) [2010] VCAT 454 (16 April 2010)

General List - freedom of information - whether information in the document is exempt under s 38 - Freedom of Information Act 1982 s 38 - Corrections Act 1986 s 30, s 14

Western Suburbs Legal Service Inc v Department of Justice (General) [2010] VCAT 454

The decision that the document is exempt under s 38 of the Freedom of Information Act 1982 is affirmed.
Liberty to apply.

For Applicant: Mr T Hurley of counsel instructed by Corrs Chambers Westgarth

For Respondent: Mr M Batskos, solicitor, FOI Solutions

Western Suburbs Legal Service Inc (the Service) sought access to a report by the Corrections Inspectorate prepared in 2004 entitled "Review of Administration of Separation Orders - High Security and Management Units".
The Corrections Inspectorate, now known as the Office of Correctional Services Review, is a body within the Department of Justice. The report was created as a result of inspections at three prisons and concerns the administration of separation orders. Separation orders are a type of measure taken to separate a prisoner from the "mainstream". It is an order that is required for the placement of a prisoner in a management or high security unit.
The report considers compliance by Corrections Victoria with the policies and procedures which were in place at that time, in the administration of the power of separation of prisoners.
In June 2008, I made a decision that the report was not exempt from release under s 38 or s 30(1) of the Freedom of Information Act 1982 (the FOI Act). My decision in relation to s 38 was appealed by the Department to the Supreme Court of Victoria. On 3 March 2009, the Supreme Court handed down a decision ordering that the applicability of s 38 of the FOI Act to the document in dispute, be remitted for reconsideration.
Orders were made for the filing of submissions and the hearing took place on 11 November 2009.
Aside from some personal information in the document, to which access is not sought, Mr Hurley, counsel for the Service, indicated that the Service wanted access to the balance contending that as no personal information was sought, the document was no longer exempt because s 38 did not apply to any part of the document.
For convenience, I indicated that I would proceed at this stage to make a decision on whether the document is exempt under s 38 of the FOI Act.
Section 38 of the FOI Act states :
1. Documents to which secrecy provisions of enactments apply

A document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications.

Mr Hurley contended that the application of s 38 requires one to consider each piece of information in the review document to determine whether it is of one "kind" or another. Counsel submitted that some information may be of the kind referred to and some may not. It is an error he submitted and a misinterpretation of s 38 to approach it by looking at the "inherent" quality of the information in the document or the document itself, and not to each part.
In a nutshell, the Service contends that in considering whether s 38 applies, the information in the document must be considered.
In any event, Mr Hurley contended that the outcome in this case does not turn on a determination of this point, because he says none of the information in the document is information of the kind to which there is in force an enactment applying specifically to information of a kind contained in the document.
It is well accepted that for s 38 to apply, three conditions must be satisfied :
- first, there must be in force an enactment
- secondly, the enactment must apply specifically to information of a kind contained in the document; and
- thirdly, the enactment must prohibit persons referred to in the enactment from disclosing such information of that kind (either absolutely or subject to exceptions or qualifications).
The enactment in this case is s 30 of the Corrections Act 1986. Section 30(2) states :

(2) 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.

There was no debate between the parties that s 30(2) was an enactment for the purposes of s 38 and that the enactment prohibited persons referred to in the enactment from disclosing information of that kind. Where the parties were at odds was whether it applied specifically to information of a kind contained in this document.
Section 30(2) prohibits the disclosure of confidential information. "Confidential information" is defined in s 30(1). It says :

(a) information relating to the classification of a prisoner given to the Secretary or to the classification committee established under the Corrections Regulations 1988; or

(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

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

(e) information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency; or

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

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

(iii) a person authorised under section 9A to exercise a function or power; or

(h) information contained in a report given to a court that is not disclosed in a decision of the court or in any reasons given by the court for a decision of the court; or

(i) information of a business, commercial or financial nature relating to -

(i) the provision of services referred to in section 8B(1) or 9(1); or

(ii) an agreement entered into under section 8B(1) or 9(1) or a sub-contract agreement under that agreement;

information includes photographs, fingerprints, samples and results of tests;

information relating to the personal affairs of a prisoner includes information -

(a) that identifies the prisoner or discloses his or her address or location; or

(b) from which any other person's identity, address or location can reasonably be determined -

but does not include information that is in the public domain;

(a) a position as an officer within the meaning of Part 5;

(d) a position of being a person authorised under section 9A to exercise functions or powers.

The Department relies on the definition in sub-section 30(1)(f) which, I repeat, says -

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

The Department contended that the Tribunal's task in applying s 30(1)(f) is to consider whether the document contains any (the Department's emphasis) information :
- concerning the management of a prison;
- concerning the management of security measures in a prison;
- concerning the management of security measures in relation to a prison;
- concerning the operation of security measures in a prison;
- concerning the operation of security measures in relation to a prison.

and if it does, the document is exempt under s 30(1).

The Service submitted that the document is not one described by s 30(1)(f) of the Corrections Act for a number of reasons. It was contended that were a separation order made in respect of a person for the security of a prison that the parts of associated documents setting out the reasons would be within s 30(1)(f). Otherwise, it was contended that -
- S 30(1)(f) is limited to information concerning security measures and not measures that have other, or mixed, provenance or effects. A measure is either a security measure or it is not. Like all decisions in a gaol, it is a measure that may or may not have 'security' aspects. The reference in s 30(1)(f) must be limited to measures that are exclusively security measures. Otherwise the paragraph will embrace nearly all documents in a prison because nearly all activities in a prison have a security aspect to them.
- If a separation order were made for the safety of a prisoner, or for the safety of other persons, for the good order of the prison or management of the prison, it and the associated documents would not be concerning the management of a 'security measure'.
- S 30(1)(f) is concerned with management and operation of security measures 'in a prison'. The choice of this phrase by Parliament is deliberate. It directs attention to the operation of specific security measures. By contrast the disputed document is a systemic review of the administration of a regulation across several places. The document does not contain information concerning the management of security measures and it is not concerned with this in 'a' prison.
Those reasons were put on the basis that s 30(1)(f) read -

"information concerning the management or operation of security measures in, or in relation to a prison".

That mis-statement of s 30(1)(f) in which the words "of" after the word "management" and "the" before "operation" and the omission of punctuation leads to an interpretation and application of s 30(1)(f), confining it to information about the management and operation of security measures in or in relation to a prison. That is not what s 30(1)(f) says. I put to one side the use of punctuation, separating different situations because the provision was enacted in 1991, before s 36(3B) of the Interpretation of Legislation Act 1984 was enacted which provides that punctuation in an Act forms part of the Act if passed on or after 1 January 2001. However, the use of the preposition "of", followed by the preposition "or" and the definite article "the" preceding "operation", clearly indicates a range of alternative situations to which the information applies. There is no ambiguity.
I agree with the Department that s 30(1)(f) refers not just to information about the operation of security measures in, or in relation to a prison.
I agree with the Department's submissions that the use of words such as "concerning" and "in relation to" suggest that a broad meaning of what "management" means needs to be applied. I accept the Department's submissions that a broad interpretation is bolstered when one considers the purpose of the Act and the Governor's and the Secretary's responsibilities for monitoring performance in the provision of all correctional services to achieve the safe custody and welfare of prisoners and offenders.
I am satisfied that the document, a review of administration of separation orders - High Security and Management Units - is a document which comes within s 30(1)(f) and is confidential information. I have already found that the document contains specific references to security measures, and have made reference to the fact that it canvasses the administration of separation orders. The document contains information about what are clearly management matters relating to the administration of security orders in a prison, and I am satisfied that the administration of security orders involves the administration of security measures. In making that finding, I relied on the evidence of Mr McKendry which I accepted.
Mr McKendry as the Director, Office of Correctional Services Review, gave evidence at the original hearing. His evidence, some of which was given in confidence, was referred to in the Department's submissions. I accepted his evidence that separation orders are one type of security measure adopted from time to time in prisons as a method of, ensuring the security, good order or management of a prison. I accept his evidence that the document, including its constituent parts such as the table of contents and recommendations is wholly and solely about the management or administration of a security process. I accept his evidence that the report is a document which is a security-related document because it talks about and is focussed on and is related to the management or administration of a security process. I accept the document is about a security measure undertaken in a prison to impose a restricted regime on a prisoner, and it is a security-related document. I am fortified in making these findings by my own reading of the document.
I accept that the exempt document is a report in relation to the administration of separation orders and that the report deals with management of security in prisons. I am therefore satisfied that it is a document concerning and in relation to the management of security measures in a prison and is clearly exempt under s 38 of the Act.
I do not accept Mr Hurley's submissions that no part of the document is caught by the exemption.
Much of the hearing before me focussed on Mr Hurley's contentions that I had to consider each part of the document to determine whether each part was exempt and that I should not consider the document as a whole.
I accept his submissions that the Act recognises that a document may contain information of varying kinds. Indeed, s 25 of the Act provides, if it is practicable, for an agency to grant access to a copy of a document with such deletions as to make the copy not an exempt document. Often in proceedings in this jurisdiction, the Tribunal will be considering whether different parts of documents identified as exempt under one or more provisions in the Act are exempt. Not infrequently, there may be different or multiple exemptions claimed with respect to different parts of a document and there will have been some redaction by the agency having employed s 25, but that is not the case here. Nor am I satisfied s 25 should be employed.
I accept Mr McKendry's evidence that whilst parts of the document when looked at specifically do not jeopardise security, such as the table of contents, the context of the document is that in totality it is a security-related document, and the whole document is security-related. I accept that the whole of the report contains information or is about management of prisoner separation and that no amount of editing would remove that characterisation of the document. It is not necessary to follow the approach advanced by Mr Hurley given my findings about the document and the application of s 30(1)(f) to the whole of the document.
For these reasons, I am satisfied that the document is exempt from release under s 38 of the Act and that the decision of the Department is affirmed.
In these circumstances, I reserve liberty to the parties to apply.

Corrections Regulations 1988

Western Suburbs Legal Service Inc v Department of Justice

At a glance

Court

Decision date

Source

Judgment (38 paragraphs)

Western Suburbs Legal Service Inc v Department of Justice (General) [2010] VCAT 454 (16 April 2010)

Parties

Legislation Cited (1)