Keene and Director-General, Department of Justice and Attorney-General (Commissioner, Corrective Services, NSW) [2011] NSWADT 59

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Keene and Director-General, Department of Justice and Attorney-General (Commissioner, Corrective Services, NSW) [2011] NSWADT 59 Hearing dates: On the papers Decision date: 23 March 2011 Before: N Isenberg, Judicial Member Decision: The application is dismissed. Legislation Cited: Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Cases Cited: State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Category: Principal judgment Parties: David Keene (Applicant) Director-General, Department of Justice and Attorney-General (Commissioner, Corrective Services, NSW) Representation: D Keene (Applicant in person) Department of Corrective Services (Respondent) File Number(s): 103220

reasons for decision

Application before the Tribunal 1On 11 June 2010 the applicant, Mr David Keene, lodged an application under the Freedom of Information Act 1989 (the FOI Act) for recordings of telephone calls (the recordings) made by him whilst he was in custody at various correctional centres between 2007 and 2009. Dissatisfied with the material provided to him in response to his application, Mr Keene applied for review by this Tribunal pursuant to section 53(1) of the FOI Act.

Issue 2The Respondent contends that Mr Keene's request has been answered and now asks that the application be dismissed. Mr Keene made no submission to the contrary.

History of the FOI request 3Following his application for the recordings, on 29 June 2010, Mr Keene clarified that he only required copies of the conversations involving his mother and a Mr Reynolds (although apparently none were located in respect of Mr Reynolds). 4On 14 July 2010, the respondent told Mr Keene that an estimated 43 hours would be required in order to complete the processing of his application, and that the legislation only required an agency to spend 20 hours in answering an FOI request unless an additional fee is paid. Mr Keene was told that the cost of the additional time would be approximately $345.00, charged at $15.00 per hour (which is the concessional discount) and was asked to make an advance deposit of $200.00 pursuant to section 21 of the FOI Act. As a result Mr Keene requested that the respondent only process his application up to the '20 hours of free processing' point. 5The respondent advised Mr Keene that it was required to consult his mother, prior to determination as provided in Division 2 Part 3 of the FOI Act in relation to its obligations concerning the "personal affairs" of others. Mr Keene was also advised that the consultation process would add an additional 14 days to the processing period. Mr Keene's mother subsequently informed the respondent that she objected to the release of the recordings. 6Mr Keene was noted by the respondent as having provided the following reasons for his request to access the recordings: to obtain evidence of a kind that may either support or contradict other known facts relevant to current and/or pending court proceedings; and to assist in forming an assessment of my state of mind during my Incarceration and to what extent it was affected by the conditions I lived under over that period. 7Mr Keene contended that the public interest favoured the release of the recordings, and as such outweighed any third party privacy considerations; in particular when the third party (his mother) was aware that the telephone call was being recorded. 8By letter dated 8 August 2010, Mr Keene requested an internal review, because his application had not been determined within the statutory timeframe. 9On 9 August 2010 an officer of the Information Access and Privacy Unit undertook the internal review. As a result, Mr Keene was provided with full access to the printouts of telephone calls and also access to audio recordings of telephone calls up to 20 hours of processing, in accordance with his instructions. Some audio recordings could not be provided to him because of his mother's views and Mr Keene's mother had a right to appeal the determination if she chose to do so. 10On 16 August 2010 the Manager of the Information Access and Privacy Unit, informed Mr Keene by letter that subsequent to his request for an internal review, he would be provided with access to a further 17 recordings, after the expiration of his mother's appeal period. 11Mr Keene was informed that any recordings which were recorded while he was incarcerated at the Junee Correctional Centre (JCC), were not held by the respondent and consequently he would need to make an application to the JCC pursuant to section 247 of the Crimes (Administration of Sentences) Act 1999. However, in August 20 those recordings were forwarded by JCC management to the respondent. On 2 September 2010, the respondent informed Mr Keene that a total of 63 recordings had been retrieved from the JCC, a few days of which had been corrupted and were unreadable. However the 63 additional recordings were not immediately provided to Mr Keene because of his request to limit processing time to 20 hours. I am informed though that these recordings have subsequently been provided to Mr Keene. 12On 7 September 2010, further additional materials were released to Mr Keene and on 20 October 2010 the respondent released the recordings with his mother.