Collins -v- Commissioner of Corrective Services, Department of Corrective Services [2000] NSWADT 130

CITATION: Collins -v- Commissioner of Corrective Services, Department of Corrective Services [2000] NSWADT 130 DIVISION: General Division APPLICANT John Edward Collins PARTIES: RESPONDENT Commissioner of Corrective Services, Department of Corrective Services FILE NUMBER: 003067 HEARING DATES: 10/08/2000 SUBMISSIONS CLOSED: 08/10/2000 DATE OF DECISION: 08/10/2000

BEFORE: O'Connor K - DCJ (President) APPLICATION: access to documents - Freedom of Information Act - access to documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT M Parmeter, solicitor ORDERS: 1. Application dismissed

Delivered Ex Tempore 1 The application for review before the Tribunal was made by Mr Collins on 9 March 2000. It was for review of a decision of the Commissioner of Corrective Services conveyed to him in letters from the Department dated 18 January 2000 and 20 December 1999. The second letter resulted from an internal review of the first decision. That internal review was conducted by the Acting Executive Director. 2 Mr Collins has requested access to the record of an interview of him conducted at Goulburn Gaol on Thursday, 9 April 1998 by Deputy Superintendent Barry Cumberland. 3 In its replies to Mr Collins' application the Department indicated that it was unable to deal with the application as it did not hold the document that Mr Collins sought. That form of determination of an application is provided for by section 28(1) of the Freedom of Information Act 1989 which requires an agency when it is responding to a request for access to deal with certain matters in the notice of determination. One permitted form of notice is to the effect that the application relates to a document that is not held by the agency or referring to the fact that the agency does not hold such a document. 4 So that was the position as the matter presented itself to the Tribunal in the application for review. 5 It transpired that subsequent to Mr Collins' application being lodged with the Tribunal a document was located in the record system of the Department of Corrective Services which the relevant officers of the Department believed to be the document to which Mr Collins sought access. At today's hearing evidence was provided by means of an affidavit from a solicitor in the Department, Deborah Dickinson, who also gave evidence and was cross-examined, as to the actions taken by her which led to the document the Department believes to be the document requested being located. 6 Mr Collins has disputed the authenticity of that document. One step that was taken following a case conference was to make arrangements for a re-interview of Mr Collins in relation to the matters that he had raised in the interview of 9 April 1998. 7 The re-interview occurred on 10 April 2000. 8 So the position we have before us today is this: that the agency, the Department of Corrective Services has either satisfied the request by producing a genuine complete record of the original interview and therefore the concern that led to the application has been met, or that the agency has been unable to locate the document because the document which it now seeks to provide to Mr Collins is not the authentic record or a copy of the authentic record. 9 The situation is an unusual one. Nevertheless we have heard evidence today from the two officers of the Department previously mentioned, Ms Dickinson and Mr Cumberland. We also have an affidavit from the senior officer who undertook the internal review, Ms Smith. Appropriately Mr Collins acknowledged that given the way in which the dispute was now framed it was unnecessary for her to be required to attend for cross-examination. 10 Evidence was given by Mr Collins which went to his recollection of the circumstances of the record of interview, the practices adopted in making the record of interview and the conduct of the interview. He referred to such matters as the process used for printing out documents and signing them. He gave evidence as to why he believes that it can be discerned from the contents of the document produced that it is not an authentic document. 11 Before I go on to express a view as to the question in dispute that it might be desirable to provide some general context in relation to the case. 12 As I understood the evidence of Mr Collins and Mr Cumberland in particular and also the additional information provided by Ms Dickinson, Mr Collins' concerns that led to the conduct of an interview with him, had to do with practices that were occurring at Lithgow at the time. These practices involved the provision of warm jackets to prisoners which were other than prison issue jackets. They resulted from a relationship between the prison staff and an external supplier. At least in Mr Collins' eyes, there was a perception that this arrangement was not an official one, and that prison staff may have had some private profit making involvement in the supply of those jackets; or within the gaol were independently selling the jackets that had been received from the supplier. That is the context that gave rise to the particular dispute that is here today. It is not my role of course to form any view in relation to those matters but I think it is helpful in understanding how the particular dispute today has arisen. 13 Mr Cumberland was assigned to investigate Mr Collins' complaints in relation to the practices as Mr Collins perceived them. Mr Cumberland also conducted interviews with the prison officers against whom allegations have been made. He was satisfied as a result, that there was no evidence of improper conduct by the officers warranting action. 14 Ms Dickinson gave evidence as to how she came to learn that there was a problem in finding the record of interview that had been conducted with Mr Collins. She undertook certain searches on the computer system. These led to the document which she believed to be the record of interview being located in a file bearing the name 'Hudson'. That was the name of an officer that had been under investigation. So that the Collins record of interview was found in a file that did not bear the name 'Collins'; or I should say the alleged Collins record of interview was found in that file. I accept Ms Dickinson's evidence as to the steps that she took. 15 Now, the more critical witness is Mr Cumberland who Mr Collins acknowledged conducted the interview on the day in question. Mr Cumberland has sworn that the document that Ms Dickinson located and which is attached to Ms Dickinson's affidavit is the original record of the interview conducted on that occasion. He strenuously denies the allegations put to him by Mr Collins that this document is not an accurate record of the interview that occurred on that occasion and other allegations to the effect that it is essentially a manufactured document. 16 In the course of his evidence Mr Cumberland referred to the procedures that are adopted in the conduct of an interview of a prisoner who makes an allegation. He explained that at that time at least the practice was for a third person to be present, being a typist, and that in this instance she was using a word processing unit and the screen of the unit was located in a position where it was visible and could be read by both parties to the interview. 17 He also explained that the practice was to progress basically a page at a time and to print off and confirm each page as the interview proceeded and to procure signatures as the interview proceeded. 18 He explained that at the conclusion of the interview that a single print of the document would be made by the word processing system. That is treated as the original and signed. He believes that the document that has been located by Ms Dickinson and is attached to her affidavit is that original document. Then he said the practice was for photocopies to be made of that document and for one of those photocopies to be left by him with the prison officers to be conveyed, as I understood it, to the Deputy Governor for further transmission, after an appropriate record had been made in the property register, to the prisoner who had given the interview. 19 I wish to comment at this stage, if it is consistent with the wider considerations that must apply to the administration of prisons, that it would seem preferable for a copy to be made available immediately at the conclusion of the interview than to pursue a practice of that kind. That seems to be one of the issues that lies at the back of these proceedings. 20 Now, in his evidence Mr Collins also referred to the practices that were adopted on the day of the interview. Whilst his evidence was relatively brief at a number of points he did corroborate parts of Mr Cumberland's account. He agreed, as I understood it, with Mr Cumberland's general description of the procedures that were adopted. His evidence went directly to the question of the matter of whether or not he was given a copy at the conclusion of the interview. He said that Mr Cumberland declined to make available a copy to him but indicated that it would be put in Mr Collins' private property at the reception room. In that way Mr Collins provides confirmation for Mr Cumberland's account of the practice that Mr Cumberland routinely followed, which I took to be consistent with agreed administrative procedure. Mr Collins' account also confirmed the practice (which might seem to outsiders to be unusual but is no doubt based on experience) of dealing with each page of the interview as it is completed. Mr Collins said that it was put down beside him and then they would read each page and then they would go onto the next page. So Mr Collins' own account of the interview is consistent in significant respects with Mr Cumberland's account. 21 Mr Collins did contend that he did not at the interview and had never used certain words of the kind that are shown as recorded in the interview. He said that he used the word 'gaol' rather than 'Corrections' or 'Correctional Centre' and he would not have used the word 'Governor' in the way it was recorded in the interview. He relied on those considerations to suggest that the document now tendered was not an authentic record of the interview. 22 It may be that inaccuracies of the kind that Mr Collins contends did occur; but I am really not in a position to form any concluded view on that matter. 23 The matter really comes down to one of whether there is any good reason to doubt the sworn evidence given by Mr Cumberland which was consistent in several respects as to procedure with that given by Mr Collins. 24 As to the critical matter of whether the document produced is the original document, there are a number of factors to which Ms Parmeter (for the respondent) pointed in her closing submissions to which I should have regard. I accept in particular her submission that there was no evidence of any weight before the Tribunal to suggest that Mr Cumberland may have had some motive not to have furnished a true original to the relevant authorities after the interview; and that there was other evidence gathered in the course of the investigation by Mr Cumberland that would suggest that there may have been an acceptable explanation for the events that have caused concern to Mr Collins. More importantly Mr Collins has not been able to point to any parts of the document that involve possible errors of a substantial kind, as distinct from the more minor matters of whether there may have been some terminology substitution that was not a true record. 25 The conduct of the Department since it has been able to locate the document and also its conduct in relation to making available the opportunity for re-interview would tend to militate against any conclusion that some improper motive or attempted cover-up may have led to a non-authentic document being created. 26 Mr Collins in his submissions also commented on the failure of the investigator to conduct the interview by use of a tape recorder. I think I should merely observe that on that matter an explanation was given by Mr Cumberland. That explanation went to the question of resources as the reason for that practice, at least at that time, not having been adopted. I was encouraged to learn in the course of the proceedings today that there hadn't been any differentiation in the procedure used as between the interview procedure adopted in respect of Mr Collins at that time and the interview procedure adopted in respect of the prison officers. So that again I think would tend to refute any suggestion that there was some discrimination in practice as between a prisoner and prison officers adopted in the course of the investigation that might have tended to support the suggestion of fabrication or cover-up. 27 Mr Collins also referred to the two lines drawn diagonally across the blank portion of one page of the record (the relevant page is page 4 of the record, not page 13 as Mr Collins said at the hearing). He suggested that this did not form part of the record as shown to him, and pointed towards fabrication. The evidence is not clear as to whether those lines were incorporated immediately into the document. I regard those lines as reflecting an administrative practice, often used, of marking the balance of a page that is blank so as to demonstrate that no material has been inadvertently omitted. 28 So for all those reasons my conclusion - and I think, the only conclusion that is open to the Tribunal to make on the weight of the evidence - is that the document that has now been located and is being made available is the document to which your request was addressed. 29 In those circumstances my conclusion is that your application for review should be dismissed on the ground that the request has been satisfied by the Agency so that in the circumstances the conclusion of the Tribunal is that the Agency is now having discovered the document made the correct and preferable decision which is to grant access to the document. 30 I accept Mr Collins that you may not be satisfied with the outcome but it seems to me that on the evidence that is the only conclusion that could properly be open to the Tribunal.