Potier v Department of Corrective Services [2008] NSWADT 278

CITATION: Potier v Department of Corrective Services [2008] NSWADT 278

DIVISION: General Division

APPLICANT Malcolm Huntley Potier PARTIES: RESPONDENT Department of Corrective Services

FILE NUMBER: 073094

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 28 April 2008

DATE OF DECISION: 10 October 2008

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information Act - access to documents- adequacy of search - law enforcement and public safety - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989

Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 CASES CITED: Cianfrano v Director General, Premier's Department [2007] NSWADT 216 University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362

APPLICANT In person REPRESENTATION: RESPONDENT T Anderson, barrister

ORDERS: The decision under review is varied in accordance with these reasons. The matter is to be listed for further directions in relation to the outstanding issues.

REASONS FOR DECISION 1 Mr Potier applied under the Freedom of Information Act 1989 ("the FOI Act") for access to documents held by the Department of Corrective Services. His application requested copies of the following documents: 1. Copies of all applications, requests made at any time by inmate regarding placement or continued placement on protection; 2. A copy of report prepared, together with all associated documentation by Governor Harrison in November 2002 concerning inmate accusations; 3. Copies of any and all reports prepared by any persons including but not limited to Officer Donaldson of Long Bay CC, together with any other documents prepared for any purpose not identified in documents provided to date; 4. Copies of all documents relating to alleged offence by inmate in April 2006 clearly identifying officers involved and their rank; 5. Copies of all documents relating to inmate being unsuitable for placement at MRRC created in 2006 identifying officers involved and their rank; 6. Copies of any requests received and/or replies given by any persons or organisations, part of the Department of Corrective Services concerning inmate. Including, but not limited to, Department of the Director of Public Prosecutions, Crown Prosecution Service, Commissioner for Police NSW, Attorney Generals Department; and 7. Complete copies of all communications of any kind in connection with NSW Police operations conducted at any time concerning inmate. 2 The Respondent's A/FOI & Privacy Officer, Ms Mandy Beadle, determined Mr Potier's request. Ms Beadle identified six documents that she considered fell within the scope of the request. She determined to grant partial access to those documents. She found that those documents were exempt under clause 6(1) of Schedule 1 to the FOI Act because they contained information concerning the personal affairs of people other than Mr Potier and she considered that it would be unreasonable to release that information. 3 Mr Potier was not satisfied with the determination of his application and sought an internal review of Ms Beadle's decision. 4 Ms Margaret Fulford, Manager of the Respondent's FOI & Privacy Unit, carried out the internal review. Ms Fulford maintained the position that Mr Potier should be granted only partial access to those documents that Ms Beadle had identified. A number of further documents were located during the internal review process. Ms Fulford found that three of those documents were partially exempt under clause 6(1) of Schedule 1 to the FOI Act because they contained information concerning the personal affairs of people other than Mr Potier and she considered that it would be unreasonable to release that information. She determined to grant partial access to those documents. Ms Fulford found that eighteen of the documents were fully exempt under clause 6(1) of Schedule 1 to the FOI Act and a further two documents were exempt under clause 10(1) of Schedule 1 to the FOI Act as they would be privileged from production in legal proceedings on the grounds of legal professional privilege. Mr Potier was denied access to those documents. 5 Ms Fulford identified two information reports which she considered to include small parts that would be considered to fall within the scope of Mr Potier's request if a liberal interpretation were adopted. Mr Potier was denied access to those documents. Ms Fulford found that those documents are exempt documents under clause 4(3B) of Schedule 1 to the FOI Act. Pursuant to section 28(3) of the FOI Act, she declined to give any further details regarding the material that was said to be exempt. 6 Full access was granted to the remaining documents. 7 Mr Potier was not satisfied with Ms Fulford's internal review determination and he sought an external review by this Tribunal. 8 The matter came before me for hearing on 20 February 2008 at which time I was satisfied that it was likely that the Respondent held other documents that fell within the scope of Mr Potier's request that had not been identified. I remitted the matter for reconsideration by the Respondent and the matter was listed for further hearing. 9 Ms Beadle undertook a further review and provided two further determinations. The first is dated 31 March 2008 and the second is dated 8 April 2008. Her determinations identified a number of additional documents. 10 Ms Beadle's 31 March 2008 determination identified a number of additional documents that Ms Beadle considered fell within the scope of Mr Potier's request. Mr Potier was granted full access to all but three of those documents. The documents were said to be partially exempted under clause 6(1) of Schedule 1 to the FOI Act because they contain material concerning the personal affairs of people other than Mr Potier and Ms Beadle considered that it would be unreasonable to release that material. Ms Beadle also considered that several other located documents fell outside the scope of Mr Potier's request. 11 Ms Beadle's 8 April 2008 determination identified a number of additional documents that Ms Beadle considered fell within the scope of Mr Potier's request. She provided a schedule of the documents that were located. Ms Beadle considered that several of the documents fell outside the scope of Mr Potier's request. Mr Potier was granted full access to eight of the remaining documents and partial access to three documents. Two documents were said to be partially exempted under clause 6(1) of Schedule 1 to the FOI Act and another said to be partially exempted under clause 7(1)(c) of Schedule 1 to the FOI Act and Ms Beadle considered that it would be unreasonable to release that material. 12 Mr Potier was denied access to a further ten documents which Ms Beadle considered to be fully exempted under clause 6(1) of Schedule 1 to the FOI Act because they contain material concerning the personal affairs of people other than Mr Potier and Ms Beadle considered that it would be unreasonable to release that material. Pursuant to section 28(3) of the FOI Act, she declined to give any further details regarding the material that was said to be exempt. 13 It is my understanding that Mr Potier does not seek access to those parts of the identified documents that contain information concerning the personal affairs of another person. However, he wishes the Tribunal to determine whether or not the exemption has been correctly asserted. 14 At the further hearing, Mr Potier again asserted that the evidence suggest that the Respondent holds other documents that fell within the scope of his request but which have not been released. He indicated that he sought a determination in regard to those documents. 15 Mr Potier sought a determination in regard to the documents identified in Ms Fulford's determination as documents numbered 11 and 12 and the documents identified in Ms Beadle's 8 April 2008 determination as documents numbered 49, 56, 57, 59, 60, and 62 – 68. Those documents are identified in the schedule provided by the Respondent as follows: Document 11. Information report 1232.00 Document 12. Information report 0033.02 Document 49. OIMS printout -admin Caseload Letter to PCMC from officer Buxton - Receipt of Documents Document 56. PCMC running sheet - Investigator Don Caldwell Document 57. Metropolitan Regional Investigative Section Plan - Allegations of Misconduct at the MMTC Document 59. Letter dated 22/1/03 from J Schubert-to Officer Document 60. Letter dated 22/1/03 from J Schubert-to Officer Document 62. Letter dated 3/l/03 to D. Caldwell from D. Tuckerman Document 63. Request for information Form - undated Document 64. Metropolitan Regional Investigative Section Witness Interview Form - dated 27/1/03 Document 65. Record of interview - dated 27/1/03 Document 66. Record of interview - dated 27/1/03 Document 67. Metropolitan Regional Investigative Section Witness Interview Plan dated 27/1/03 Document 68. Metropolitan Regional Investigative Section Witness Interview Plan dated 27/1/03 16 Copies of each of the documents in issue have been filed with the Tribunal. The parties agreed that the matter should be finally determined on the papers without the need for further attendance by the parties. A timetable was set for any further submissions. Issues 17 There are three issues for determination in this application. These are: (a) whether the Respondent has conducted an adequate search for documents that fall within the scope of Mr Potier's request; (b) whether the documents that have been withheld from Mr Potier are exempt by reason of either sub- clause 4(3B) or clause 6 of Schedule 1 to the FOI Act; and (c) if any of those documents are exempt, should they be released to Mr Potier. Relevant Legislation 18 Section 5 of the FOI Act relevantly provides: 5 Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: (a) to obtain access to information held by the Government, and (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: (a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and (b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. (3) It is the intention of Parliament: (a) that this Act shall be interpreted and applied so as to further the objects of this Act, and (b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. 19 Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. 20 Section 25(1) of the FOI Act provides, in part, that an agency may refuse access to a document if it is an exempt document. Section 25(4)(a) provides, in part, that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. 21 The Tribunal's jurisdiction to review determinations under the FOI Act is conferred by section 53 of the FOI Act, which provides, relevantly: 53 Right to make a review application (1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination. … (3) For the purposes of this section, a person is aggrieved by a determination: (a) in the case of a determination that relates to an access application made by the person under section 17, 34 or 36—if the determination is to the effect that: (i) an agency or Minister refuses to give the person access to a document, or … and the determination has been made as a consequence of a review under section 34 or 47 or has not been subject to a right of review under either of those sections. 22 Clause 4(3B) of Schedule 1 to the FOI Act provides: 4 Documents affecting law enforcement and public safety … (3B) A document is an exempt document if it is a document that has been created by the Corrections Intelligence Group of the Department of Corrective Services in the exercise of its functions concerning the collection, analysis or dissemination of intelligence. 23 Clause 6 of Schedule 1 to the FOI Act provides: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. Adequacy of search 24 On 19 June 2008 the Court of Appeal delivered its decision in Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140. In that decision the Court of Appeal determined that the jurisdiction of the Tribunal conferred by section 53 of the FOI Act 1989 does not extend to review of the adequacy of searches undertaken by the agency in response to a request for access to an agency's documents. The Tribunal has no jurisdiction to go behind an agency's determination that it has provided access to all the documents it holds that fall within the terms of a request for access. 25 The respondent has provided access to what it says are the only documents that fall within the scope of Mr Potier's request. Mr Potier's contention that there must be more documents is not a determination reviewable under section 53. In the absence of jurisdiction, the appropriate course is to dismiss that part of his application. Are the documents exempt 26 The respondent has provided copies of each of the documents in issue. Documents 11 and 12 27 Pursuant to clause 4(3B) of Schedule 1 to the FOI Act, a document is an exempt document if it is a document that has been created by the Corrections Intelligence Group of the Department of Corrective Services in the exercise of its functions concerning the collection, analysis or dissemination of intelligence. Whether or not this is the case will be a question of fact. 28 In regard to documents 11 and 12 the Respondent relies on the evidence of Acting Superintendent Wayne Creighton. Mr Creighton's evidence is that each of those reports was created by the Corrections Intelligence Group of the Department of Corrective Services in the exercise of its functions concerning the collection, analysis or dissemination of intelligence. 29 I am satisfied that these documents are correctly identified. I agree that each of the documents is an exempt document under clause 4(3B). 30 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362, Nicholas J confirmed that, by virtue of section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") read in conjunction with section 25(1)(a) of the FOI Act, the Tribunal has discretion to order access to be given to exempt documents if it decided that to do so is the correct and preferable decision with regard to the material then before it. 31 The principles guiding the exercise of the discretion were discussed by the President of the Tribunal in Cianfrano v Director General, Premier's Department [2007] NSWADT 216. The question to be considered is whether, bearing in mind the objects of the FOI Act expressed in section 5, there are strong grounds justifying the overriding of the exemptions found to apply. At paragraph [27] the President set out some of the factors relevant to the exercise of the discretion as follows: - whether the exempt matter was, by other means, in the public domain, - whether the circumstances that have made the exempt matters sensitive at the time it was refused remain current or significant, - the nature of the Government activity under scrutiny, and the extent of public or community concern or interest in having a fuller knowledge of that activity, - the public interest in an informal debate on issues of significance to the community, - whether there were adverse consequences for the proper administration of government, and their extent, - whether any adverse consequence is remote or innocuous. 32 In my opinion, the sensitivity of these exempt matters remains current and significant and the release of the withheld documents could give rise to adverse effects on the relationship between the Respondent, its officers and inmates. In my view the restriction of access to that information is reasonably necessary for the proper administration of government as referred to in section 5(2)(b) of the FOI Act. I am not satisfied that this is outweighed by Mr Potier's interest in having full access to this material. 33 I agree with the Respondent that it would be unreasonable to release the exempt material. In these circumstances it is my view that the Respondent's determination in regard to documents 11 and 12 should be affirmed. Document 49 34 Document 49 is described as "OIMS printout - admin Caseload Letter to PCMC from officer Buxton - Receipt of Documents". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 35 The schedule provided by the Respondent does not indicate that any exemption is claimed in relation to this document. However, Mr Potier stated that he was not given a copy of the document. He said that the Respondent has not given him any explanation for not releasing the document. 36 In these circumstances it is my view that Mr Potier should be given a copy of the document. I understand that this has been done. If my understanding is incorrect, then the appropriate order is that the document be released. Document 56 37 Document 56 is described as "PCMC running sheet. - Investigator Don Caldwell". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 38 Mr Potier has been given a copy of the document with some material deleted. The Respondent contends that the deleted material is exempted under clause 6(1) of Schedule 1 to the FOI Act. Mr Potier stated that he was not convinced that the deletion is appropriate. 39 I agree with Mr Potier that some of the deletions are excessive. In my view, the material in the second paragraph, commencing 'Buxton:' is exempted under clause 6(1). However, I disagree with the extent of the deletions made by the Respondent in the remainder of document 56. With the exception of the last four words, the material in the fourth paragraph, commencing with the word 'Caldwell:' is not exempted under clause 6(1). With the exception of the last four words, the material in the sixth paragraph, commencing with the word 'Caldwell:' is not exempted under clause 6(1). The material in the first line of the eighth paragraph, commencing with the word 'Caldwell:' is not exempted under clause 6(1). The material in the first line of the ninth paragraph, commencing with the word 'Caldwell:' is not exempted under clause 6(1). With the exception of the last four words, the material in the eleventh paragraph, commencing with the word 'Caldwell:' is not exempted under clause 6(1). 40 I agree with the Respondent that it would be unreasonable to release the exempt material. However, section 25(4)(a) provides that an agency shall not refuse access to a document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted. In these circumstances it is my view that Mr Potier should be given a copy of Document 56 from which only the exempt matter has been deleted. Document 57 41 Document 57 is described as "Metropolitan Regional Investigative Section Plan - Allegations of Misconduct at the MMTC". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 42 Mr Potier has been given a copy of the document with some material deleted. The Respondent contends that the deleted material is exempted under clause 6(1) of Schedule 1 to the FOI Act. The deleted material concerns allegations made against various individuals and identifies those individuals. I agree that this material is exempted under clause 6(1). I also agree with the Respondent that it would be unreasonable to release the exempt material. 43 In these circumstances it is my view that the Respondent's determination in regard to Document 57 should be affirmed. Documents 59 and 60 44 Document 59 and 60 are both described as "Letter dated 22/1/03 from J Schubert to Officer". A copy of each of the document was filed with the Tribunal. I have examined the documents and I am satisfied that the Respondent's description of the documents is accurate. 45 Mr Potier has not been given a copy of the documents. The Respondent contends that each of the documents is fully exempted under clause 6(1) of Schedule 1 to the FOI Act. 46 While I agree that each of these documents contains information concerning the personal affairs of the person to whom it is addressed, I do not agree with the Respondent's view that the documents are fully exempt. Each document appears to me to be a form letter addressed to an individual who has not been identified. If the names and contact details of individuals mentioned in each of the document and dates and times in the first paragraph of each document were deleted, the remainder of the document would not be exempt under clause 6(1). 47 In these circumstances it is my view that Mr Potier should be given a copy of Documents 59 and 60 from which only the exempt matter has been deleted. Document 62 48 Document 62 is described as "Letter dated 3/l/03 to D. Caldwell from D. Tuckerman". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 49 Mr Potier has not been given a copy of the document. The Respondent contends that the document is fully exempted under clause 6(1) of Schedule 1 to the FOI Act. I agree that this material is exempted under clause 6(1). I also agree with the Respondent that it would be unreasonable to release the exempt material. 50 In these circumstances it is my view that the Respondent's determination in regard to Document 62 should be affirmed. Document 63 51 Document 63 is described as "Request for information Form - undated". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 52 Mr Potier has not been given a copy of the document. The Respondent contends that the document is fully exempted under clause 6(1) of Schedule 1 to the FOI Act. 53 While I agree that this document contains information concerning the personal affairs of the persons named in the document, I do not agree with the Respondent's view that the document is fully exempt. The document appears to me to be in a standard format. If the names and contact details of individuals mentioned in the document were deleted, the remainder of the document would not be exempt under clause 6(1). 54 In these circumstances it is my view that Mr Potier should be given a copy of Document 63 from which only the exempt matter has been deleted. Document 64 55 Document 64 is described as "Metropolitan Regional Investigative Section Witness Interview Form - dated 27/1/03". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 56 Mr Potier has not been given a copy of the document. The Respondent contends that the document is fully exempted under clause 6(1) of Schedule 1 to the FOI Act. 57 This document records information concerning a witness interview. I agree that this document contains information concerning the personal affairs of the witness named in the document. Other information contained in the document could reasonably be expected to permit the identification of the witness. I agree that this material is exempted under clause 6(1). I also agree with the Respondent that it would be unreasonable to release the exempt material. 58 In these circumstances it is my view that the Respondent's determination in regard to Document 64 should be affirmed. Document 65 59 Document 65 is described as "Record of interview - dated 27/1/03". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 60 Mr Potier has not been given a copy of the document. The Respondent contends that the document is fully exempted under clause 6(1) of Schedule 1 to the FOI Act. 61 This document records information concerning a witness interview. I agree that this document contains information concerning the personal affairs of the witness named in the document. However, the majority of the information in the document cannot reasonably be expected to permit the identification of the witness. The document appears to me to be in a standard format. If the information that has been inserted into paragraphs 1, 2, 4, 9, 17, 20, 21, 34, 35, 36 and 37 of the standard form document were deleted, the remainder of the document would not be exempt under clause 6(1). 62 In these circumstances it is my view that Mr Potier should be given a copy of Document 65 from which only the exempt matter has been deleted. Document 66 63 Document 66 is described as "Record of interview - dated 27/1/03". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. This is in a format to Document 65 but differs in the information that has been inserted. 64 Mr Potier has not been given a copy of the document. The Respondent contends that the document is fully exempted under clause 6(1) of Schedule 1 to the FOI Act. 65 This document records information concerning a witness interview. I agree that this document contains information concerning the personal affairs of the witness named in the document. However, the majority of the information in the document cannot reasonably be expected to permit the identification of the witness. The document appears to me to be in a standard format. If the information that has been inserted at the top of the first page of the document, the name of the interviewee and that information inserted into paragraphs 1, 2, 3, 6, 8, 9, 17, 18, 19, 24, 31, 33 and 34 of the standard form document were deleted, the remainder of the document would not be exempt under clause 6(1). 66 In these circumstances it is my view that Mr Potier should be given a copy of Document 66 from which only the exempt matter has been deleted. Document 67 67 Document 67 is described as "Metropolitan Regional Investigative Section Witness Interview Plan dated 27/1/03". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 68 Mr Potier has not been given a copy of the document. The Respondent contends that the document is fully exempted under clause 6(1) of Schedule 1 to the FOI Act. 69 While I agree that this document contains information concerning the personal affairs of the persons named in the document, I do not agree with the Respondent's view that the document is fully exempt. The document appears to me to be in a standard format. In my view, the information that has been inserted into the document could reasonably be expected to permit the identification of the witness. I agree that this material is exempted under clause 6(1). However, if the information inserted into the standard form document were deleted, the remainder of the document would not be exempt under clause 6(1). 70 In these circumstances it is my view that Mr Potier should be given a copy of Document 67 from which only the exempt matter has been deleted. Document 68 71 Document 68 is also described as "Metropolitan Regional Investigative Section Witness Interview Plan dated 27/1/03". A copy of the document was filed with the Tribunal. I have examined the document and I am satisfied that the Respondent's description of the document is accurate. 72 Mr Potier has not been given a copy of the document. The Respondent contends that the document is fully exempted under clause 6(1) of Schedule 1 to the FOI Act. 73 While I agree that this document contains information concerning the personal affairs of the persons named in the document, I do not agree with the Respondent's view that the document is fully exempt. The document appears to me to be in a standard format. In my view, the information that has been inserted into the document could reasonably be expected to permit the identification of the witness. I agree that this material is exempted under clause 6(1). However, if the information inserted into the standard form document were deleted, the remainder of the document would not be exempt under clause 6(1). 74 In these circumstances it is my view that Mr Potier should be given a copy of Document 68 from which only the exempt matter has been deleted. Further conduct of these proceedings 75 Mr Potier has sought costs in relation to these proceedings pursuant to section 88 of the ADT Act. That issue has not yet been argued. Mr Potier has also requested that the Tribunal make orders pursuant to section 58 of the FOI Act and section 131 of the ADT Act. The matter is to be listed for further directions to determine how these issues are to be resolved. Orders 1. The decision under review is varied in accordance with these reasons. 2. The matter is to be listed for further directions in relation to the outstanding issues.