Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Potier v Department of Corrective Services (No 3) [2012] NSWADT 243 Hearing dates: On the papers Decision date: 26 November 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed insofar as it relates to items 7 and 8 of Mr Potier's FOI request. Catchwords: Access to documents - sufficiency of search - whether document held - operations of agencies Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Cases Cited: GU v Commissioner, Department of Corrective Services [2003] NSWADT 176 Mahenthirarasa v SRA (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201 Potier v Department of Corrective Services [2011] NSWADT 294 Potier v Department of Corrective Services [2011] NSWADT 53 Category: Principal judgment Parties: Malcolm Potier (Applicant) Department of Corrective Services (Respondent) Representation: M Potier (Applicant in person) G Singer (Respondent) File Number(s): 103076 REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Potier applied to the Department of Corrective Services ("the Respondent" or "CSNSW") under the Freedom of Information Act 1989 ("the FOI Act") for access to documents held by the Respondent ("Mr Potier's FOI request"). 2The details of Mr Potier's FOI request can be found in earlier decisions relating to the matter. See Potier v Department of Corrective Services [2011] NSWADT 53; Potier v Department of Corrective Services [2011] NSWADT 294. In the most recent decision I remitted the application for redetermination by the Respondent insofar as it relates to two items (items 7 and 8) of Mr Potier's FOI request. 3In Item 7 Mr Potier sought access to the LSI-R report that was referred to on page 220 of the Serious Offenders Review Council ("SORC") Minutes of 21 April 2009 ("the LSI-R report"). 4In Item 8 Mr Potier sought access to: "Details by reference to statistical analysis of all instances of injuries received by inmates at any NSW Correctional centres for the last 5 years allocated to that Correctional Centre as a result of an interaction between inmates and servants of the Commissioner for the NSW Department of Corrective Services." 5I directed that the Respondent complete its redetermination by 27 January 2012. Mr Potier's position 6Mr Potier contends that numerous other items remain to be determined. I do not agree with that contention. Accordingly, I propose to only deal with the items that were referred for redetermination i.e. those referred to in the most recent determination as Items 7 and 8. With the exception of those two items it is my view that no further action was required of the Respondent. 7Mr Potier takes issue with the Respondent's position that the LSI-R is a psychometric instrument that no person can administer without suitable training. He stated that he completed a further LSI-R with the Welfare Officer of the M.S.P.C. Area of Long Bay Correctional Centre. He further stated that the Welfare Officer confirmed that she had no qualification or specific training in psychometric analyses. He says that having completed the questionnaire which encompasses the LSI-R he can confirm that it is of the most general nature. 8He submits that to be of any practical use, any form of questionnaire and detailed answer is dependant on the tone and content of the answers written down by the interviewer. If that interviewer has no training, or qualification, then there is a real danger that the results will become meaningless; indeed without full disclosure of the content, then the possibility exists of a falsehood being introduced into the deliberation process. 9Mr Potier contends that it is clear that such documents are relied upon by SORC and those responsible for inmate release upon parole and progress through the system. They are considered most important in the determination of release on parole and that any error may affect his liberty. He should be given the opportunity of adjusting and correcting any inaccuracies in their content. 10Mr Potier also takes issue with the Respondent's position that the LSI-R is used under licence to the Respondent, and therefore need not be produced. He does not accept that such an exclusion to disclosure can possibly apply. He submits that the Respondent's conduct in claiming copyright, after nearly 3 years of debate, should be viewed with deep suspicion and considered to be a last minute attempt to avoid disclosure. 11Mr Potier has provided a copy of a Risk Assessment document ("the Risk Assessment document"), which he says was presented to the Family Division of the English High Court. He stated that he was provided the document by his English Solicitors as part of civil proceedings in the English High Court. He submits that some of the contents of the document can only have come from files held by the Respondent. 12While it is not clear, it appears that Mr Potier is asserting that the Risk Assessment document is in the same format as the document he is seeking. It appears that he has formed this view from discussions he had with Parole Officer Joan McKenzie. 13He submits that if any of the contents of the Risk Assessment document originated from the Respondent then its free distribution, to another jurisdiction, for a civil matter, means that the Respondent can no longer claim immunity from disclosure on the grounds of confidentiality. 14Mr Potier submits that the Respondent has not adequately searched for the Item 8 documents. He submits that there is clear evidence that certain documents do exist and that there is a presumption in favour of disclosure. 15Mr Potier contends that it is clear that "use of force" statistics exist. He points to evidence from Mr Eyland, Director of Corporate Research, Evaluation and Statistics, in which he confirms the collection of statistical data regarding incidences of the "use of force". It is submitted that the information sought exists, and has been available for some time but the Respondent has sought to deny that existence. The Respondent's position 16The Respondent's position and the evidence on which it relies is summarised in submissions by Ms Singer filed in the Tribunal on 13 April 2012. In those submissions Ms Singer wrote: In relation to the Applicant's request for "Details by reference to statistical analysis of all instances of injuries received by inmates at any NSW Correctional Centres" ... "Use of Force" incidents are recorded in the Incident Reporting Module of the CSNSW Offender Information Management System (OIMS) and are reviewed and evaluated as appropriate, on an incident by incident basis, in accordance with the "use of force" procedures which are found in the Corrective Services Operations Procedure Manual and are reviewed and evaluated as appropriate, on an incident by incident basis, in accordance with the "use of force" procedures which are found in the Corrective Services Operations Procedure Manual. 17A copy of the Corrective Services NSW Operations Procedures Manual has been provided to the Tribunal and is available to inmates. 18In support of its position the Respondent relies on the Affidavit of Mr Simon Eyland, Director, Corporate Research, Evaluation and Statistics (CRES). Mr Eyland confirms that the Respondent does not publish or provide any statistical analysis of "Use of Force" incidents. Mr Eyland stated (paragraph numbering deleted): "The primary purpose for CRES is to collect, analyse, interpret, advise and disseminate corrections information and research to assist in corporate policy and planning throughout CSNSW and the Department of the Attorney General and Justice. CRES collects and analyses a range of statistical data in relation to inmate on inmate incidents and inmate on officer incidents, for publication in the Annual Report of the Department of Attorney General and Justice and in the Report on Government Services published by the Steering Committee for the Review of Government Service Provision, Productivity Commission. I am aware that individual correctional centres are required to maintain records of any incident, which may involve officer on inmate interaction, and that one category of such incidents is "use of force". Each correctional centre keeps a record of the incidents in the CSNSW Incident Reporting Module (IRM) a component of the CSNSW Corporate database - OIMS. CRES has not historically accessed those records of incidents contained within the IRM relating to "use of force". CRES has never performed statistical analyses on those incidents classified as "use of force". I believe that CSNSW does however take this type of incident seriously and there are policies and procedures in place to investigate these incidents on a case by case basis at the individual correctional centre level. In relation to inmate violence, information is however routinely compiled by CRES relating to the "Assaults" incidents reported in the IRM, which relates to assaults perpetrated by inmates on other inmates and/or correctional officers. Statistical collection in relation to "use of force" lies outside the standard statistical collections maintained by CSNSW." 19In relation to Mr Potier's assertion that due to the reporting requirements in the Junee Contract, it follows that such statistics exist the Respondent contends that "Use of Force" incidents occurring at Junee and Parklea Correctional Centres, which are privately managed under contract, are recorded as outlined above and reported to the Respondent's Corporate Inspectorate, in compliance with the Respondent's reporting procedures. This is intended to ensure that all serious incidents are reported to the Commissioner in a timely and accurate manner. 20The Inspectorate evaluates and reviews each individual incident to confirm that it has been managed within the "Expected Outcomes", "Legislation and Policy Requirements" and "Specific Service Requirements" with which the private management company is required to comply. 21In relation to the attachments to the SORC Minutes, Ms Singer submitted that they were prepared by the Respondent for consideration by the SORC when making a recommendation on the classification of the Applicant. The specific attachments are dependent on the needs and requirements of the individual inmate, at that point in time, and are not a standardised or general package. 22She submits that the Affidavit of Mr Puke-Puke, to which Mr Potier referred, was prepared for the purposes of other proceedings. In relation to that Affidavit Ms Singer submitted that the Affidavit was general in nature, and described some of the more common documents taken into consideration, and did not enumerate under what circumstances particular documents might be considered. There is, in fact, a range of documents, which may be taken into account depending upon the given circumstances relating to the inmate under consideration. 23She contends that information on Classification Policy and Procedure and the range of documents that may be considered is included in the Operations Procedures Manual. Each inmate has a designated Case Management File (CMF), which follows an inmate from Correctional Centre to Correctional Centre. The "Operations Procedure Manual" confirms that the CMF contains general documentation pertaining to the offender ranging from initial intake documents upon entrance into custody, inmate applications, documents concerning case management, case management reviews, placement and case plan reviews. These files follow an inmate from placement to placement and are available for the inmate to view upon making the appropriate written request. 24Other documents held on the CMF include, for example, any special requirements, interests, needs, behaviour and activities. Some of these documents are used in the consideration of classification; others are not. As stated above, the selection of documents is specific and applicable to the individual inmate. 25In relation to the LSI-R report the Respondent relies on the evidence of its Manager, Assessment Unit, Offender Services and Programs, Mr Ross Feenan. 26Mr Feenan has responsibility for the assessment system employed by the Respondent for Community Offender Services and Correctional Centres. This comprises the development and implementation of all offender related assessments, including the offenders' Level of Service Inventory-Revised (LSI-R). 27In his affidavit of 1 March 2012, Mr Feenan stated: The LSI-R forms the basis of offender case management, supervision level, program pathways and level of service. I consider that the release of this information would adversely affect that process. A sound understanding of the theoretical background and scoring rules is essential to the correct administration of the LSI-R. Its results can only be interpreted by those who are accredited in its use. It requires professional training and the successful completion of relevant assessment tasks. Offenders' results are interpreted by an accredited user to avoid any misinterpretation by the offender. In my opinion the release of the exempt material to an offender would diminish the accuracy of the testing instrument, thereby having a substantial adverse effect on the operations of CSNSW. Contamination of the assessment process would also incur significant financial cost to the government. 28In a supplementary affidavit of Mr Feenan referred to the Risk Assessment document. He stated: "I have been provided with a copy of the "risk assessment" forwarded by the Applicant. I have had an opportunity to review the document forwarded by the Applicant which claims that based on verbal advice from Probation and Parole Officer, Ms Joan McKenzie, the "risk assessment" and the "LSI-R" (Level of Service Inventory - Revised©) are equivalent or at least based on the same or similar information. As part of my role encompasses responsibility for the offender assessment system employed by Correctional Centres, I can confirm that this document is not used in determining risk of reoffending. The LSI-R is a tool to determine the likelihood of reoffending and associated criminogenic needs, whilst the "risk assessment" forwarded by the Applicant is, as it clearly states, is an assessment to ascertain the overall "threat" rating to be attributed to the Applicant." 29The Respondent also relies on the evidence of Acting Executive Officer & Registrar of the SORC, Ms Telfer. Ms Telfer has responsibility for ensuring that the SORC is adhering to the current, relevant legislation, policy and procedures. In her statement she stated: The documents that the SORC considers in the course of making informed recommendations to the Commissioner are based on the individual needs of the inmate and those deemed necessary for the inmate at that time. The SORC considers the recommendations of correctional centre staff and management regarding security classification, placement and program participation. The SORC also considers the results of any assessments that identify the need for interventions. Additionally, the SORC may also consider other matters that come to their attention, e,g. incidents that result in internal charges, requests for protection, medical appointments. Information is carried forward and updated to ensure its currency. Electronic and hard copy documents are included. Information is carried forward from meeting to meeting, when specific matters have not been finalised. When it makes its informed recommendation to the Commissioner, the documents considered by the SORC in relation to that recommendation, are listed as attachments to the SORC minutes. This formulated Agenda item, which is provided for each inmate, may be up to twenty pages in length, not including the attachments. SORC does not consider every document filed concerning the inmate, only those listed requiring current attention as an attachment or information that is included in the Agenda/Minute. Inmates are also interviewed by the Assessment Committee (the Committee) which consists of members of the SORC. The Committee's initial contact with SORC inmates commences when an inmate is within eight years of the expiry of their non parole period and then continues throughout their progression in security classification until release from CSNSW custody. The interviews take place at the correctional centre where the inmate is presently housed. These interviews allow the inmate to address the Committee in person and articulate matters relating to their management. The information tabled for consideration at each SORC meeting, for each individual inmate, is relevant to the current management of the inmate. Discussion 30As I have noted above, the scope of the matter has been reduced to consideration regarding Items 7 and 8 of Mr Potier's FOI request. 31In my previous determination in regard to those items I stated (Potier v Department of Corrective Services [2011] NSWADT 294 at paragraphs 93 - 95): 93. I agree with Mr Potier's assertion that item 7 of his request for documents is to be read broadly and would include the LSI-R report that was referred to on page 220 of the SORC Minutes. The Respondent has provided submissions in regard to how the Tribunal should deal with that document but has provided no evidence in support of those submissions. The Respondent's assertion that the LS1-R is a psychometric tool employed to assess offenders may well be correct but there is no evidence to support the assertion. Nor have I been given a copy of the document so that I could carry out an examination of it. I have no evidence to show that the report is the same report considered in the case of GU v Commissioner, Department of Corrective Services [2003] NSWADT 176. I have not been given any evidence to support the submissions in regard to the likely consequences of releasing the document. I have not been given any evidence to support the submission that requiring the Respondent to consider every document mentioned in the SORC Minutes would substantially and unreasonably divert the resources of the agency. In the absence of evidence I am unable to determine whether the document should be released. 94. The Respondent has not determined the issue and in my view it should do so. That aspect of the application is remitted to allow that consideration. 95. As I indicated above, it is unclear whether the Respondent is asserting that the statistical information requested in item 8 of Mr Potier's FOI request does not exist or whether it is asserting that an exemption applies in relation to that material. Nevertheless, the Respondent has not determined that issue and in my view it should do so. That aspect of the application is remitted to allow that consideration. 32In relation to Item 7 of Mr Potier's FOI request, the Respondent has addressed the issues I previously raised through the evidence of Ms Telfer and Mr Feenan. 33On the basis of Mr Feenan's evidence I am satisfied that the Risk Assessment document and the LSI-R report are different documents. It follows that Mr Potier's submission regarding the release of the LSI-R report to another forum must fail. 34On the basis of Mr Feenan's evidence I am also satisfied that the LSI-R report is an instrument of the kind considered in the case of GU v Commissioner, Department of Corrective Services [2003] NSWADT 176. 35If Mr Potier's information is correct, it seems that unqualified persons are administering the testing. I note Mr Potier's submission in regard to the significance of the tone and content of the answers written down by the interviewer. While it may appear unusual that an individual with no qualification or specific training in psychometric analyses would be administering the testing, it is apparent from Mr Feenan's evidence that it is the analysis of the results that requires professional training and the successful completion of relevant assessment tasks. That evidence is not challenged. 36In Mr Feenan's opinion, the release of the material would diminish the accuracy of the testing instrument. 37The exemption in clause 16(a)(i) of Schedule 1 to the FOI Act states that: A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: (i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency,. . . and (b) would, on balance, be contrary to the public interest. 38That provision was the subject of the consideration in GU v Commissioner, Department of Corrective Services. In that matter, Deputy President Hennessy stated Elements of the exemption. 13 Summary. Under s 61 of the FOI Act, the onus is on the respondent to make out the exemption. As there was no dispute in this case that the documents come within the description of "a test, examination or audit", the elements which must be established are that: · disclosure could reasonably be expected; · to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency; and · would, on balance, be contrary to the public interest. 14 Could reasonably be expected. The phrase "could reasonably be expected to" should be given its ordinary meaning (Searle Australia Pty Limited v PIAC [1992] FCA 240; (1992) 36 FCR 111 at 122). In Neary v Chief Executive, State Rail Authority [1999] NSWADT 107, the Tribunal held (following Federal Court cases) that although there must be more than a mere risk that the stated result will follow from disclosure, it was not necessary that the risk be assessed as more probable than not (at [35]). 15 The agency's submission is based on the assumption that if GU is given access to the tests, his answers and the scoring keys, then there is nothing to stop him from distributing the tests more widely. I am not satisfied that it "could reasonably be expected" that GU would distribute the tests in that way. However, if GU is given access to the tests and his results, then it can be assumed that anyone making an application under the FOI Act would be entitled at least to the tests and the scoring keys, if not to a person's answers. The availability of the tests would be increased. That expectation must be balanced against the fact that at least 17 of the 20 tests are already publicly available. 16 I am satisfied that it could reasonably be expected that giving GU access to the documents would make the tests and the scoring keys even more available to the general public than is the situation currently. Furthermore, while tests are publicly available, the public does not know which of those tests is administered and in what order. Prejudice the effectiveness of any method or procedure for the conduct of tests. 17 Evidence as to the prejudice to the effectiveness of the methods and procedures for conducting the test was provided by Mr Edwards. That evidence was not challenged in cross-examination and I accept it. In summary, that prejudice is that the assumptions underlying the administration of the tests would no longer be valid. In particular, the assumption that a person will provide a spontaneous, rather than a planned, answer could not be made. In addition, psychologists would be unable to plot the progress of offenders and would be unable to determine with any degree of certainty, whether treatment had been effective. Public interest 18 When assessing public interest, the Tribunal must balance the public interest considerations in favour of disclosure against those interests adverse to disclosure. As well as the promotion of the democratic objectives of the FOI Act, there is a public interest in GU having access to information about himself, especially if that information is used to make any decision. That interest is addressed in part by allowing GU to inspect his tests and to discuss the results with a psychologist. 19 The public interest considerations against disclosure are that the validity of the tests could reasonably be expected to be compromised and the agency will lose the opportunity to share information with the scientific community about the results of that testing. In addition, the scientific community would be reluctant to share information with the agency if they knew that they could not keep the tests confidential. 20 If GU were entitled to the test documents and the scoring keys, then any member of the public making an application under the FOI would be entitled to those documents. Those documents would tell a person not only the content of particular tests and the scoring keys (many of which are publicly available) but also the tests which the agency uses and the order in which those tests are administered. This information could reasonably be expected to undermine the validity of the tests. The public interest considerations do not favour disclosure because these tests are extremely valuable in the assessment and treatment of sex offenders. Any diminution in their validity is not in the public interest. In addition, the interest in GU having information about himself is accommodated by the agency's preparedness to allow him to inspect the documents. For these reasons, the decision of the agency not to disclose the documents to GU is affirmed. Copyright 21 Although the respondent did not submit that disclosure of the tests would involve an infringement of copyright, Mr Edwards gave evidence that many of the tests are protected by copyright. Section 27(3)(c) of the FOI Act allows an agency to refuse to give access in the form requested if that "would involve an infringement of copyright subsisting in matter contained in the document." If access in that form is refused, access must be given in another form, such as by giving the person a reasonable opportunity to inspect the document. While I do not need to decide the issue in this case, it may well be that photocopy access would involve an infringement of copyright. 39In my view, the comments by Deputy President Hennessy in GU v Commissioner, Department of Corrective Services are equally applicable to the circumstances of this matter. For the same reasons given in that decision it is my view that the LSI-R report should not be disclosed to Mr Potier. 40In relation to Item 8 Mr Potier sought "Details by reference to statistical analysis of all instances of injuries received by inmates at any NSW Correctional Centres". Mr Potier subsequently identified this as a reference to statistics pertaining to the "Use of Force". 41Mr Eyland's evidence confirms that CRES has never performed statistical analyses on those incidents classified as "use of force" and the Respondent does not publish or provide any statistical analysis of "Use of Force" incidents. 42I am satisfied on the evidence before me that the Respondent does not have any documents the fall within the scope of this aspect of Mr Potier's FOI request. I note that Mr Potier contends that it is clear that "use of force" statistics exist. That appears to be a correct submission. However, Mr Potier's FOI request was for "statistical analysis". He did not seek statistics or records that might indicate the number of such incidents. My finding does not address whether or not such documents are held. 43I also note that this matter relates to documents held by the Respondent at the time of Mr Potier's FOI request. The question of whether or not the Respondent currently holds documents of that nature is not a matter for determination. The Respondent's compliance with its statutory obligations 44Mr Potier has made a number of allegations in regard to the manner in which the Respondent has dealt with this application. He points to a long period in which the Respondent failed to provide documents that were subsequently provided. He argues that the Respondent elongated the process by unreasonable, unsubstantiated arguments only to resile from their position at a later date. He has sought an order for costs in his favour. 45The Respondent contends that it has sought to comply with its statutory obligations and submits that Mr Potier's comments about the Respondent are baseless and misleading, having no foundation. It further submits that Mr Potier has not provided any substantiated evidence that the Respondent, or any of its officers, have not acted in good faith 46The Respondent further submits that Mr Potier's unrealistic and unreasonable demands have lead to an unnecessary outlay of the Respondent's resources, and if costs are to be awarded, they should be awarded against Mr Potier. 47I do not consider that this is a case in which an order for costs is warranted. However, I do agree with Mr Potier to the extent that the progress of this matter has been exacerbated by the manner in which the Respondent has responded to Mr Potier's request. 48In my view the Respondent's conduct of the matter does not reveal any demonstration of good faith towards Mr Potier. In my view the Respondent has fallen short of its obligations to act as a model litigant. In regard to the standards of a 'model litigant' see the discussion in the Court of Appeal's judgment in Mahenthirarasa v SRA (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201. Order The decision under review is affirmed insofar as it relates to items 7 and 8 of Mr Potier's FOI request. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2012