Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jamieson v Department of Justice [2019] NSWCATAD 173 Hearing dates: 11 July 2019 Date of orders: 23 August 2019 Decision date: 23 August 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: G Blake AM SC, Senior Member Decision: (1) The decision made on 13 October 2018 of the respondent to refuse to provide full access to the mail log for incoming/outgoing personal and legal mail from 2015 to 2018 in relation to the applicant is affirmed. (2) An order pursuant to s 64 (1)(c) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication of evidence given by the respondent in private before the Tribunal, or of matters contained in the unredacted Mail Log received in evidence in private by the Tribunal. Catchwords: ADMINISTRATIVE REVIEW – Government Information (Public Access) – application for review by person aggrieved by decision to refuse to release information – public interest considerations Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Administration of Sentences) Act 1999 Government Information (Public Access) Act 2009 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Hurst v Wagga City Council [2011] NSWADT 307 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Woolley v Lismore City Council [2013] NSWADT 10 Category: Principal judgment Parties: Stephen Jamieson (Applicant) Department of Justice (Respondent) Representation: Solicitors: S Jamieson (Self Represented)(Applicant) G Nalapo, Office of General Counsel (Respondent) File Number(s): 2018/00352490 Publication restriction: An order pursuant to s 64 (1)(c) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication of evidence given by the respondent in private before the Tribunal, or of matters contained in the unredacted Mail Log received in evidence in private by the Tribunal. REASONS FOR DECISION Summary 1. The applicant, Stephen Jamieson, seeks an administrative review pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) of the decision of the respondent, the Department of Justice, to refuse to provide full access to the mail log for incoming/outgoing personal and legal mail from 2015 to 2018 in relation to the applicant (the Mail Log) made on 13 October 2018 (the Second Decision). 2. I am satisfied that the correct and preferable decision is to refuse full access to the Mail Log to the applicant. Accordingly, I affirm the Second Decision. Background 1. At all relevant times the respondent has been an "agency" within the meaning of the GIPA Act. 2. All inmates for whom Corrective Services New South Wales (CSNSW), which is a division of the respondent, is responsible have a Master Index Number (MIN) which is a unique identity number. 3. The Custodial Operations Policy and Procedures of CSNSW include [8.1] "Inmate mail". Clause 1.1 of the policy in both its original form issued on 16 December 2017 and revised form issued on 3 June 2019 relevantly provides: All letters and parcels (except privileged communication) (sent by or addressed to an inmate) may be opened, inspected and read. If it contains contraband it must be confiscated. If this happens the inmate must be informed. Letters and parcels which do not contain contraband will be delivered to the inmate. 1. Since August 2015, the applicant has been an inmate at the High Risk Management Correctional Centre (HRMCC) at Goulburn following his escape from Goulburn Correctional Centre. 2. On 5 April 2018, the applicant lodged an access application with the respondent under the GIPA Act seeking information including the Mail Log. 3. On 30 May 2018, the respondent made a decision to relevantly to provide the applicant with partial access to the Mail Log (the First Decision). The redacted Mail Log consists of 15 pages containing 368 entries in 11 tables which with one exception are in reverse chronological order. The tables are in the same form and consist of 6 columns. The columns contain the following information: first column: a date; second column: "388542", which is the applicant's Master Index Number (MIN); third column: "Jamieson"; fourth column: "<" or ">" or no entry; fifth column: the name of the sender or addressee; sixth column: for some entries the nature of the mail such as "Legal". There are 268 redactions in the fifth column. 4. On 9 July 2018, the applicant applied to the Information Commissioner for an external review of the First Decision. 5. On 21 October 2018, Bronwyn Veselovsky, Investigation and Review Officer, as delegate of the Information Commissioner, published the review report, which relevantly recommended that the respondent make a new decision (the Review Decision). 6. On 31 October 2018, the respondent made the Second Decision to refuse full access to the Mail Log to the applicant. The Second Decision 1. The Second Decision, which was made by Jodie Cobbin, Director, Open Government, Information and Privacy, contains 98 paragraphs under a series of headings and a Schedule of Documents, and refers to the respondent as "the Department". 2. The section under the heading "Public interest considerations in favour of disclosure" refers to s 12(1) and (2) of the GIPA Act, and relevantly provides: 26. In my view the following public interest considerations in favour of disclosure apply when considering the documents in issue: a. The statutory presumption in favour of the disclosure of government information; and b. The general right of the public to have access to government information held by agencies and, c. The mail log contains the Applicant's personal information 27. I have attributed significant weight to these considerations. In particular, I note and acknowledge the public interest in providing access to information that contains the Applicants own personal information. 28. Under section 55(2) of the GIPA Act, an agency is entitled to take the following personal factors of the application into account: a. The mail log contains the Applicant's personal information 29. I have considered this personal factor as a factor in favour of providing access to the information sought. 30. Under section 55(1) of the GIPA Act, an agency is entitled to take the following personal factors of the application into account as against the disclosure of information: a. The applicant is held in a High Risk Facility b. The Applicant has a history as an escapee 31. Under Section 55(3) I have considered the personal factors referred to in paragraph 30a and 30b to be personal factors weighing against providing access to the information sought as relevant to the considerations in clauses 2 and 3 of the Table attached to Section 14. 1. The section under the heading "Public interest considerations against disclosure" refers to s 14 of the GIPA Act, and identifies the considerations, 1(f), 2(h), 3(a), 3(b) and 6(1) of the table in s 14 as being relevant to the applicant's application, and relevantly discusses each of these considerations as follows: Consideration 1(f) - prejudice the effective exercise by an agency of the agency's functions … 41. A critical function of Corrective Services is to ensure that offenders in custody are placed in a safe, secure and humane environment and to ensure persons having custody or supervision of offenders are not endangered (section 2A of the Crimes (Administration of Sentences) Act 1999. This can only occur in an environment where information relevant to the security and management of inmates is not jeopardised by the release of information pursuant to the GIPA Act which is a release to the world at large. 42. The disclosure of information that is collected by Corrective Services in relation to inmates has the capacity to jeopardise intelligence gathering functions, risk mitigation strategies to manage inmates (particularly those in high risk management correctional centres) and their ability to maintain a safe environment for all staff and inmates. An additional relevant feature to this internal review is the Applicant's history as an escapee from a correctional facility. Measures put in place in relation to the security and management of inmates in a high risk centre; particularly those who have a history of escape are to be carefully guarded, including disclosure of records relating to such inmates. 43. According to the Corrective Services policy, chapter 8.1 of the Custodial Operations Policy and Procedure (COPP), 'all letters and parcels (except privileged communication) (sent by or addressed to an inmate) may be opened, inspected and read'. Inmate mail may be directed to law enforcement agencies or the Corrections Intelligence Group. The mail log is a record of names of parties who send mail to inmates, including other inmates. 44. Chapter 8.1 also provides that inmate mail may be confiscated. The disclosure of information collected in relation to inmates has the capacity to provide an insight about the methodology and systems used to gather intelligence and keep inmates in a secure environment. It does this by revealing to an inmate what, if any mail has been confiscated, particularly where it relates to a law enforcement investigation or where it relates to intelligence gathering about the inmate or any other person. 45. Providing this information to the inmate enables the inmate to circumvent the processes in place by Corrective Services NSW by enabling scrutiny of the mail log to determine the instances (date / times) mail may have been confiscated, the individuals from whom mail may have been received but not forwarded on. This information will enable the mail monitoring function of Corrective Services NSW to become ineffectual and impede Corrective Services from effectively carrying out its functions of supervision of offenders in custody. 46. I have placed significant weight on this public interest consideration against disclosure as it could reasonably be expected to have a substantially adverse effect on the Department's ability to manage inmates in custody. Consideration 3(a) - reveal an individual's personal information … 57. Given that the applicant is an inmate in a high risk management correctional centre, I have taken into account that individuals named on the mail log may be distressed by the potential public disclosure of their names on a mail log relating to an inmate. For this reason I have apportioned significant weight to this consideration against disclosure. Consultation … 60. There are 15 pages of names on the mail log with approximately 25 names on each page. For this reason it is not practicable to consult with all of the persons listed due to the enormity of the task, particularly in light of the absence of any contact information such as a telephone number and/or address in order to contact individuals for consultation purposes. 61. I note also that some of the individuals on the mail log list have a Ml N or Master Identification Number next to their name. This reveals that such individuals have a custodial record which is highly sensitive personal information; particularly given some inmates may serve a term of imprisonment without many of their family or friends ever having known about their imprisonment. Furthermore, other individuals who have sent mail to the Applicant may be sensitive about the fact that they are corresponding with an inmate being revealed. This is particularly relevant considering that the release of the information to the Applicant would disclose their personal information without any restriction as to its use. 62. I have apportioned significant weight in relation to this consideration against disclosure on the grounds a MIN number is highly sensitive personal information to which the affected individuals have not been consulted regarding any release to the Applicant. Consideration 3(b) - contravene an information protection privacy principle … 68. In the absence of consent or the application of an exception or exemption to section 18 of the PPIP Act which authorises the disclosure of the personal information, disclosure to the Applicant of the personal information contained in the records sought would amount to a breach of the PPIP Act. … 70. I have apportioned significant weight to this public interest consideration against disclosure as the personal information contained in the documents are sensitive and individuals should have confidence in the Department's commitment to compliance with legislative obligations and the information protection principles. Further, I place additional weight on this consideration, as the disclosure would be contrary to law, but for the GIPA Act. Consideration 2(h) - law enforcement and security … 73. I have considered the impact on the security of the correctional facilities of releasing information collected in relation to the Applicant, particularly considering the Applicant is an inmate housed at Goulburn High Risk Correctional Centre which is a purpose built maximum security facility. 74. Chapter 8.1 of the Custodial Operations Policy and Procedures Manual (COPP) (Corrective Services, NSW) relates to inmate mail. This policy sets out procedures to ensure that letters and parcels being sent to or received by inmates do not pose a threat to the safety of any individual or the security of a correctional centre. 75. Mail may be confiscated before being delivered to an inmate for a number of reasons, such as, because it contains contraband, evidence of a criminal offence or because it relates to the intelligence gathering function of Corrective Services. In these instances the relevant inmate to whom the mail is addressed will be advised that the mail has been confiscated but may not ever be advised of the contents or sender of the mail. 76. Chapter 8.1 (paragraph 1.3) of the COPP explains that the governor may direct an authorised officer to read and or inspect letters or parcels if they have reasons to believe an incoming or outgoing letter or parcel contains material or information that is likely to affect the security of the correctional centre. The releasing of a mail log to an inmate has the capacity to reveal mail that has been confiscated for law enforcement or intelligence gathering reasons. 77. For these reasons I am of the view that the release of an inmate's mail log has the capacity to prejudice the security, discipline and good order of the relevant facility and as such, this consideration is very heavily weighted against disclosure in this instance. Consideration 6(1) - secrecy provisions … 80. Corrective Services New South Wales (CSNSW) has specific restraints on the disclosure of information. This is reflective of the sensitive nature of the information held by CSNSW. For example, if custodial records of an inmate were released to the world at large, it would have the effect of revealing their status as an inmate or former inmate. This has the potential to damage the reputation of that individual or their family and friends, or otherwise impact their standing in the community. 81. Section 257(1) of the Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act') provides: A person must not disclose any information obtained in connection with the administration or execution of this Act [...] 82. A person who discloses information contrary to section 257(1) is guilty of an offence. The offence carries a maximum penalty of "100 penalty units or imprisonment for 2 years, or both." 83. I am satisfied that it is reasonably likely that releasing the requested information to the Applicant would amount to a disclosure of information obtained in the execution or administration of the CAS Act and therefore contravene section 257(1) of the Act. Such a contravention carries a penalty of 100 penalty units or imprisonment for 2 years or both. 84. As stated above in respect of the information protection principles, while the GIPA Act overrides the secrecy provision of s 257(1), as provided by section 11 of the GIPA Act, I have still apportioned significant weight to this public interest consideration against disclosure as the personal information contained in the documents are sensitive and individuals should have confidence in the Department's commitment to compliance with its legislative obligations. If it were not for the operation of the GIPA Act, it is likely that this information would never be disclosed. 85. I have placed additional weight on this consideration due to the nature of the information held by CSNSW. This information should only be released if the public interest in favour of the disclosure outweighs the consideration that disclosure of this information is, outside of the GIPA Act, an offence with a significant penalty. 1. The section under the heading "Balancing the public interest test" relevantly provides: 88. For the reasons provided above I have apportioned significant weight to the public interest considerations against disclosure and less weight to the public interest considerations in favour of disclosure. … 90. Additionally, releasing this personal information would be in breach of section 18 of the PPIP Act and section 257(1) of the CAS Act. In the absence of the opportunity to consult with individuals named on the mail log to which the information relates, the public interest against disclosure has been given more weight. 91. I am of the view that releasing the document would prejudice the intelligence gathering functions, risk mitigation strategies to manage inmates (particularly those in high risk management correctional centres) and their ability to maintain a safe environment for all staff and inmates. 92. On balance I am satisfied that the balance of the public interest lies in the decision to not release the information falling within the scope of the access application. 1. The Schedule of Documents provides: No. Description of record that contains the information Third Party Consultation Yes/No Released or withheld Relevant public interest consideration(s) against disclosure 1. Offender Visits Report No Withheld 1(f) 2(h) 3(a), 3(b), 6(1) Procedural history 1. On 16 November 2018, the applicant commenced proceedings 2018/000352490 in the Tribunal against the respondent by lodging an administrative review application form (the application) in which he seeks a review of the First Decision on the following ground: I disagree with the Department of Justice … decision against disclosure of 3rd party information in relation to the names, mins and correctional centres, on the grounds that the information I am requesting has already been revealed to 3rd parties, therefore my request is not in breach of Section 18 of the PPIP Act 1998, quoted in (Richards v Department of Corrective Services [2011] NSWADT 98) for example all mail I have received from, other inmate whether in the same or different correctional centre the correspondence has the (min) and correctional centre they are at on the back under sender and I am led to believe that is a requirement. 1. Attached to the application is the First Decision with some of the documents containing information to which the applicant was provided access including the redacted Mail Log, and the Review Decision. 2. The application has been treated as if it related to the Second Decision. The hearing 1. The hearing was held on 11 July 2019. The applicant appeared by video-link. The first part of the hearing was open to the public. The second part of the hearing, which was closed to the applicant and the public pursuant to s 107(2) of the GIPA Act, involved confidential evidence of the respondent and submissions of the respondent in relation to that confidential evidence. 2. The applicant did not tender any written evidence or give any oral evidence. 3. The respondent tendered the following written evidence in the first part of the hearing: 1. a bundle of documents which included the First and Second Decisions and the Review Decision; 2. Custodial Operations Policy and Procedures [8.1] of CSNSW entitled "Inmate mail" in its revised form as at 3 June 2019; 3. the redacted Mail Log. 1. I directed the respondent to provide the applicant with a copy of Custodial Operations Policy and Procedures [8.1] of CSNSW entitled "Inmate mail" in its original form as at 16 December 2017. The confidential evidence of the respondent 1. The respondent tendered the following confidential written evidence: 1. the unredacted Mail Log; 2. [NOT FOR PUBLICATION]. [NOT FOR PUBLICATION]. 1. [NOT FOR PUBLICATION]. 2. [NOT FOR PUBLICATION]. 3. [NOT FOR PUBLICATION]. 4. [NOT FOR PUBLICATION]. 5. [NOT FOR PUBLICATION]. 6. [NOT FOR PUBLICATION]. 7. [NOT FOR PUBLICATION]. 8. [NOT FOR PUBLICATION]. 9. [NOT FOR PUBLICATION]. 10. [NOT FOR PUBLICATION]. [NOT FOR PUBLICATION]. 1. [NOT FOR PUBLICATION]. The submissions of the applicant 1. The applicant, who did not make any written submissions, made the following oral submissions to the Tribunal: 1. he wants to use the information in the unredacted Mail Log in proceedings in the Supreme Court; 2. the personal information of other persons in the unredacted Mail Log is already known to him; 3. if persons in the unredacted Mail Log who sent mail did not want their personal information disclosed they would not have sent the mail; 4. the only part of the in the unredacted Mail Log to which he wants access is the date and name of the other person. He does want information about any confiscated mail; 5. he disagrees with the submissions of the respondent that release of the unredacted Mail Log would compromise systems that are in place including the use of mail logs to prevent inmates from escaping from lawful custody, to gather intelligence and to keep inmates in a secure environment. The submissions of the respondent 1. The respondent in its legal contentions received by the Tribunal on 14 May 2019, after setting out relevant provisions of the GIPA Act and the applicable legal principles under the GIPA Act, relies on the considerations in cll 1(f), 2(g), 2(h), 3(a), 3(b) and 6(1) of the table in s 14, and makes the following submissions: 1. the personal factors of the applicant to taken into account in relation to the considerations in cll 2(g), 2(h), 3(a) and 3(b) of the table in s 14 of the GIPA Act are: 1. the intent of the access application is to provide evidence in relation to future legal proceedings; 2. he is currently an inmate at the HRMCC; 3. he currently has a CSNSW classification of A1 with an E rating, which is one of the highest security classifications, signifying that CSNSW has made a determination that he poses a possible threat to the security and good order of a correctional facility; 4. he has a history of escaping from custody and has been convicted for escaping from custody; 1. as to the consideration in cl 1(f) of the table in s 14 of the GIPA Act: 1. the functions of CSNSW include to ensure offenders in custody are placed in a safe, secure and humane environment and to ensure persons having custody or supervision of offenders are not endangered: Crimes (Administration of Sentences) Act 1999 (NSW) (CAS Act), s 2A; 2. releasing the mail log to an inmate can reasonably be expected to prejudice CSNSW's functions in being able to effectively manage and supervise the custody of inmates in their care at the HRMCC; 1. as to the consideration in cl 2(g) of the table in s 14 of the GIPA Act: 1. there is a duty imposed on CSNSW to ensure that systems are in place to prevent inmates from escaping from lawful custody and to that end documents released under the GIPA Act should not be available to be used to compromise such measures; 2. one such measure of CSNSW is the use of mail logs which serve to provide for a record keeping system regarding inmates with higher security classifications such as those in the HRMCC and act as an investigative and intelligence gathering tool; 3. provision of this information to an inmate will cause the mail monitoring function of CSNSW to become ineffectual, and impede CSNSW from effectively carrying out its functions of supervision of offenders in custody and preventing their escape; 1. as to the consideration in cl 2(h) of the table in s 14 of the GIPA Act, there is likely to be a detrimental impact on the security of correctional facilities if the information is released to the applicant; 2. as to the consideration in cl 3(a) of the table in s 14 of the GIPA Act, the unredacted Mail Log contains personal information of individuals other than the applicant being their names and in some cases their Master Index Number and location at a correctional centre; 3. as to the consideration in cl 3(b) of the table in s 14 of the GIPA Act, the unredacted Mail Log contains personal information of individuals other than the applicant within the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and the disclosure of this personal information to the applicant does not fall within the scope of any of the permitted disclosures under s 18(1)(a)-(c); 4. as to the consideration in cl 6(1) of the table in s 14 of the GIPA Act, disclosure of the unredacted Mail Log would contravene the prohibition in s 257 of the CAS Act; 5. as to the application of the public interest test, the correct and preferable decision is that the Second Decision be affirmed given the overriding public interest against disclosure of the information sought in the unredacted Mail Log. Jurisdiction 1. The Tribunal has jurisdiction to review the Second Decision under s 100 of the GIPA Act which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): ADR Act, ss 9 and 63 read together with s 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1). The Tribunal may affirm the decision: ADR Act, s 63(3)(a). The agency has the burden of establishing to the Tribunal that the decision it made is justified: GIPA Act, s 105. Relevant legislation GIPA Act 1. The object of the GIPA Act is to open government information to the public. This object is to be realised by agencies authorising and encouraging proactive public release of government information (s 3(1)(a)), giving members of the public an enforceable right to access to government information (s 3(1)(b)), and restricting access to government information only when there is an overriding public interest against disclosure (s 3(1)(c)). 2. There is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure: s 5. A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure: s 9. 3. There is a general public interest in favour of the disclosure of government information: s 12. The note to this section contains examples of public interest considerations in favour of disclosure, including: (d) The information is personal information of the person to whom it is to be disclosed. 1. There is an overriding public interest against disclosure if and only if there are public interest considerations against disclosure which on balance outweigh the public interest considerations in favour of disclosure: s 13. The public interest considerations against disclosure are set out exhaustively in s 14 in a table, which relevantly includes: 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (f) prejudice the effective exercise by an agency of the agency's functions, … 2 Law enforcement and security There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally): … (g) prejudice the supervision of, or facilitate the escape of, any person in lawful custody, (h) prejudice the security, discipline or good order of any correctional facility. 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 … … 6 Secrecy provisions (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. 1. "Personal information" relevantly means information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion: s 4(2) and Sch 4, cl 4. "Reveal information" means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure): s 4(2) and Sch 4, cl 4. 2. A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the principles in s 15. 3. An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that the information includes personal information about the person, the person may reasonably be expected to have concerns about the disclosure of the information, and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information: s 54(1) and (2)(a). 4. In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take into account specified factors, which are defined as the personal factors of the application, and which relevantly include the applicant's identity and relationship with any other person: s 55(1)(a). The personal factors of the application can be taken into account as factors in favour of providing the applicant with access to the information: s 55(2). The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in cll 2 to 5 (but not cl 1, 6 or 7) of the table in s 14. 5. An agency may decide an access application for government information by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information: s 58(d). Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must relevantly state the agency's reasons for its decision, and the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based: s 61(a) and (b). 6. An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) where relevantly the agency has decided to refuse to provide access to the deleted information: s 74. 7. The decision of an agency in respect of an access application to refuse to provide access to information is a reviewable decision: s 80(d). 8. If the decision is not the subject of review by the Information Commissioner, an application for administrative review to the Tribunal can be made at any time up to 40 working days after the applicant is notified of the decision: s 101(1). PPIP Act 1. Part 2 Division 1 (ss 8-19) of the PPIP Act contains information protection principles. Section 18 deals with limits on disclosure of personal information and provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 1. "Personal information" relevantly means information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion: s 4(1). CAS Act 1. The objects of the CAS Act are specified in s 2A which relevantly provides: 2A Objects of Act (1) This Act has the following objects— (a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment, ... (c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered, 1. Section 257, which prohibits the disclosure of information subject to specified exceptions, relevantly provides: 257 Disclosure of information (1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made— … Maximum penalty: 100 penalty units or imprisonment for 2 years, or both. Applicable legal principles under the GIPA Act The process for deciding whether to grant access to information 1. The process for deciding whether to grant access to information under the GIPA Act is to identify the factors in favour of granting access; then to identify the public interest factors against such disclosure (being only those items set out in the table in s 14). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of balancing the positive and negative elements to reach a decision as to whether access should be granted: Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 at [9]. Balancing the competing public interest considerations is "a question of fact and degree, requiring the weighing of competing matters, and a task that is not amenable to mathematical calculation": Hurst v Wagga City Council [2011] NSWADT 307 at [70]. "could reasonably be expected to …" in the table in s 14 1. The words "could reasonably be expected to" in the table in s 14 have been held to require "something which is more than a mere risk or chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived". The public interest considerations against disclosure in cll 1 and 3 of the table require an objective assessment as to whether the claimed effects could be expected to arise. Ultimately, it is a question of fact as to whether the disclosure of the information in issue could reasonably be expected to have the prescribed effect if disclosed: Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 at [41]-[42]. 2. In Commissioner of Police NSW Police Force v Camilleri [2012] NSWADTAP 19 at [26] and [37], the Appeal Panel stated: 26 … the section 14 questions needed to be examined at a broader operational level than occurred in this case. The record in issue was generated in one of the standard services of the police force. It would not be usual, as we see it, to introduce at this stage of the process considerations connected with the particulars of the instant situation. The agency acknowledged that at the next stage of the enquiry, the section 13 stage, it would be proper to have regard to specific aspects of the instant case. ... … 37 … As explained, the section 14 enquiry is directed to the administrative structure and context, and its conditions, to which the document or information belonged. As we have noted previously, the agency does not dispute that a wide array of considerations, including subsequent history, might be considered at the section 13 stage. But it is necessary as we see it for the Tribunal to approach the section 13 stage with a properly informed appreciation of the case made by the agency at the section 14 stage. "prejudice the effective exercise by an agency of the agency's functions", "prejudice the supervision of, or facilitate the escape of, any person in lawful custody" and "prejudice the security, discipline or good order of any correctional facility" in cll 1(f), 2(g) an 2(h) of the table in s 14 1. The term "prejudice" is to be given its ordinary meaning, that is, "to cause detriment or disadvantage" or to "impede or derogate from": Hurst v Wagga Wagga City Council at [60]. "reveal information" in cl 1 of Sch 4 1. In Woolley v Lismore City Council [2013] NSWADT 10 at [88] the Tribunal held that where the applicant knew the name of a person their personal information had not been revealed within cl 1 of Sch 4 where there was no evidence that the information had already been publicly disclosed. The public interest considerations in favour of disclosure 1. I find that the following considerations are public interest considerations in favour of full disclosure of the Mail Log: 1. the statutory presumption in favour of the disclosure of government information; 2. the general public interest in favour of the disclosure of government information; 3. the Mail Log contains personal information of the applicant. Each of these considerations should be given some weight. 1. I am satisfied that the fact that the Mail Log contains personal information of the applicant is a personal factor of the application which can be taken into account as a factor in favour of providing full disclosure of the Mail Log. The public interest considerations against disclosure Personal factors of the application 1. I am satisfied that the fact that the applicant is an inmate in HRMCC with one of the highest security classifications and has a history as an escapee are personal factors of the application which can be taken into account as factors against providing full disclosure of the Mail Log. They are relevant to the consideration of whether the full disclosure of the Mail Log could reasonably be expected to have any of the effects referred to cll 2(g), 2(h), 3(a) and 3(b) of the table in s 14. The considerations in cl 1(f), 2(g) and 2(h) of the table in s 14 1. I am satisfied that the objects "to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment" and "to ensure that the safety of persons having the custody or supervision of offenders is not endangered" referred to in s 2A(1)(a) and (c) of the CAS Act form part of the respondent's functions. Therefore, cl 1(f) of the table in s 14 is applicable to this application. 2. [NOT FOR PUBLICATION]. 3. This evidence is relevant to the considerations in cll 1(f), 2(g) and 2(h) of the table in s 14. 4. I am satisfied that full disclosure of the Mail Log could reasonably be expected to prejudice the effective exercise by the respondent of its functions, prejudice the supervision of, or facilitate the escape of, any person in lawful custody, and prejudice the security, discipline or good order of any correctional facility. These considerations against full disclosure of the Mail Log should be given strong weight. I reject the applicant's submission that full disclosure of the Mail Log would not compromise systems that are in place including the use of mail logs to prevent inmates from escaping from lawful custody, to gather intelligence and to keep inmates in a secure environment. The considerations in cll 3(a) and (b) of the table in s 14 1. I have read the unredacted Mail Log. I agree that with the Second Decision that it was not practicable to consult with the persons listed in the unredacted Mail Log due to the enormity of the task, particularly in light of the absence of any contact information such as a telephone number and/or address in order to contact individuals for consultation purposes. I reject the applicant's submission that senders of mail to the applicant may not reasonably be expected to have concerns about the disclosure of the information on the ground that they would not have sent the mail if they did not want their personal information disclosed. 2. I am satisfied that full disclosure of the Mail Log would identity the addressees of mail from the applicant or senders of mail to the applicant. This consideration against full disclosure of the Mail Log should be given strong weight. 3. I am satisfied that full disclosure of the Mail Log would not fall within the scope of any of the permitted disclosures under ss 18(1)(a)-(c) of the PPIP Act. The information was collected for the purpose of creating an intelligence record. Disclosure to the applicant in response to his access application would not be directly related to this purpose: PPIP Act, s 18(1)(a). It is not usual practice of the respondent to disclose personal information collected in a mail log to any person or body except for intelligence purposes: PPIP Act, s 18(1)(b). There is no relevant serious and imminent threat to the life or health of any individual that would be prevented or lessened by disclosure: PPIP Act, s 18(1)(c). 4. I am satisfied that full disclosure of the Mail Log could reasonably be expected to reveal an individual's personal information and contravene the information protection principle in s 18 of the PPIP Act. This consideration against full disclosure of the Mail Log should be given strong weight. 5. I reject the applicant's submission that information in the unredacted Mail Log has been revealed because the personal information of other persons is already known to him. The consideration in cl 6 of the table in s 14 1. I am satisfied that it is reasonably likely that full disclosure of the Mail Log to the applicant would amount to a disclosure of information obtained in the execution or administration of the CAS Act and therefore contravene the prohibition on disclosure under s 257(1) of the Act. This consideration against full disclosure of the Mail Log should be given strong weight. Balancing the public interest considerations in favour of and against disclosure 1. I find that the public interest considerations against the full disclosure of the Mail Log strongly outweigh the public interest considerations in favour of disclosure of this information. Accordingly, there is an overriding public interest against disclosure of this information. The correct and preferable decision 1. I am satisfied that the correct and preferable decision in relation to the Second Decision is to refuse full access to the Mail Log to the applicant. Orders 1. The decision made on 13 October 2018 of the respondent to refuse to provide full access to the mail log for incoming/outgoing personal and legal mail from 2015 to 2018 in relation to the applicant is affirmed. 2. An order pursuant to s 64 (1)(c) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication of evidence given by the respondent in private before the Tribunal, or of matters contained in the unredacted Mail Log received in evidence in private by the Tribunal. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 27 August 2019 - Representation amended to G Nalapo, Office of General Counsel 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: 27 August 2019