Dezfouli v Department of Corrective Services

[2007] NSWADT 25

CITATION:	Dezfouli v Department of Corrective Services [2007] NSWADT 25
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Sayaf Dezfouli RESPONDENT Department of Corrective Services
FILE NUMBER:	053245
HEARING DATES:	28/07/2006
SUBMISSIONS CLOSED:	25 January 2007
DATE OF DECISION:	31 January 2007
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	access to documents - adequacy of search - access to documents - law enforcement & public safety - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - law enforcement & public safety
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 Centrelink v Dykstra [2002] FCA 1442 Dunstan v Department of Corrective Services [2004] NSWADT 177 Miriani v Commissioner of Police, New South Wales Police State Electoral Office v McCabe [2003] NSWADTAP 28 University of New South Wales v McGuirck [2006] NSWSC 1362
REPRESENTATION:	APPLICANT In person RESPONDENT E Ball, solicitor
ORDERS:	1. Decision under review affirmed.; 2. Paragraphs 32, 33 and 34 of these reasons are to be disclosed only to the respondent and its legal advisors and not be made available to the applicant or published by the Tribunal.

1 On 22 May 2002 the applicant requested access under the Freedom of Information Act 1989 (the FOI Act) as follows:

A copy of the entire file (from A to Z) (ie) any existing file in the Department eg warrant case file and others.

2 On 24 June 2002 the Freedom of Information & Privacy Officer of the respondent advised the applicant that two files had been received which were covered by the scope of the request, namely the applicant’s case management file and a copy of the applicant’s warrant file. Full access to those files was granted.

3 On 19 July 2004 the applicant requested access under the FOI Act as follows:

My case file – jail file – and everything pertaining to me.

4 On 10 August 2004 the Manager, Freedom of Information & Privacy Unit, advised the applicant that three files had been located, the case management file, warrant file, and offender file. Only those documents placed on the case management file since 30 May 2002 were included in the scope of the application. Partial access was granted. The applicant claimed that he lodged a request for internal review of this determination, however, it appears that this application was not received by the respondent, and in any event, no internal review was undertaken.

5 On 28 February 2005 the applicant requested access under the FOI Act as follows:

Everything that my name is written on it. Including but not limited to my Blueys, request forms, letters, and what was attached to bluey dated 3/5/02.

6 On 22 April 2005 the Manager Freedom of Information & Privacy Unit advised the applicant that access to documents covered by the previous FOI applications was refused under s25(1)(a1) of the FOI Act as the work involved in dealing with those documents would substantially and unreasonably divert the department’s resources. Partial access was granted to documents on the applicant’s case management file and warrant file. Exemptions were claimed under clauses 6(1), 7(1)(c), and 4(1)(h) of Schedule 1 to the FOI Act.

7 The applicant requested review of the determination, as follows:

Documents 1 to 21, plus a copy of my letters, request forms, blueys, and the attachment to my bluey dated 3/5/02 addressed to former governor Steven Harrison, please.

8 The Executive Director, Office of the Commissioner, determined the internal review, refusing access to documents covered by the previous FOI applications; denying access to documents 2 to 16 inclusive on the ground that these documents are available under the Inmate Classification & Case Management Procedures Manual; partially exempting documents 1, and 18 to 20, and fully exempting documents 17 and 21. The applicant complained to the NSW Ombudsman, who responded on 23 June 2005. The applicant applied to the Tribunal for review on 19 July 2005.

9 Planning meetings were held in an attempt to resolve or limit the issues in dispute. At issue were the respondent’s refusal not to consider the documents examined in the applicant’s previous FOI applications, and the determinations on documents 1 to 21 from application 04/05 – 302 (the application dated 19 July 2004), and documents 1 to 47 from application 04/05-012 (the application dated 28 February 2005). At a planning meeting held on 15 November 2005 the matter was remitted to the respondent for reconsideration of the determinations. On 22 November 2005, the respondent made a fresh determination on documents 17-21 from application 04/05-302 and documents 40-44 from application 04/05-012. Access to documents 17 and 21 was refused, and partial access was granted to documents 18-21 from application 04/05-302, and access to documents 40-44 from application 04/05-012 was refused. Exemptions were claimed under clause 4(1)(h) of Schedule 1 to the FOI Act. At a subsequent planning meeting the applicant claimed that he had not received documents which the respondent had stated it had previously provided. A direction was made requiring the respondent to provide to the applicant a further copy of all documents which it was prepared to release. At a planning meeting held on 12 December 2005 the applicant stated that there were a number of documents missing, and further directions were made requiring the applicant to provide a list of documents which he thought should have been on his case management file, and provided to him.

10 The applicant is a patient of Long Bay Forensic Prison Hospital, and is detained pursuant to s39 of the Mental Health (Criminal Procedure) Act 1990. He participated in the planning meetings by telephone. It was difficult to identify precisely which documents the applicant had received during the course of the various planning meetings, and so a hearing by video link was arranged. The applicant participated in that hearing, which focussed on the issue of whether all documents that should have been on the case management file had been located. At the conclusion of the hearing further directions were made for filing and serving of written submissions and affidavit evidence concerning the exemptions claimed, and providing the applicant an opportunity to respond to those submissions in writing. While the matter was reserved, the Supreme Court of New South Wales decision in University of New South Wales v McGuirk [2006] NSWSC 1362 was delivered, and the matter was re-listed for further submissions.

Consideration

Adequacy of search

11 Under s16(1) of the FOI Act, a person has a legally enforceable right to be given access to an agency’s documents. This right is subject to other provisions of the FOI Act, in particular s25(1)(a), under which an agency can refuse access to a document if it is an exempt document. An agency is also entitled to refuse to grant access to a document if the work involved in dealing with the application for access would “substantially and unreasonably” divert the agency’s resources (s.25(1)(a1)), or if it is a document that is available from the agency free of charge, in accordance with the agency’s policies and practices (s.25(1)(b1)). Under s24 of the FOI Act, an agency must determine whether access to the document is to be given (whether immediately or subject to deferral) or refused, and any charge payable in respect of the giving of access, or for dealing with the application. Under s24(2), an agency that fails to determine an application within 21 days after the application is received by the agency is taken to have refused access.

12 The respondent relied on its Inmate Classification and Case Management Procedures Manual, under which inmates can inspect their case management file. At an initial planning the respondent’s representative explained that an inmate’s case management file contains all documents relevant to day to day management of an inmate, including medical documents. In his affidavit dated 3 March 2006, Mr Ramon Enriquez, Assistant Superintendent, Long Bay Correctional Complex, stated that an inmate’s case management file contains all documents relating to classification, placement and case management, including requests or complaints made by an inmate on an inmate application form (known as “blueys”) after they have been actioned. The applicant stated that he wishes to have access to his case management file under the FOI Act, rather than through the Procedures Manual, because access in that form would require senior officers of the respondent to read the file, in particular complaints made by him against employees of the respondent. Under subsection 25(1)(b1) of the FOI Act the respondent is entitled to refuse access to documents contained on the applicant’s case management if he is able to inspect those documents in accordance with the respondent’s policy. It appears that the applicant has already had access in that form.

13 The terms of the applicant’s request dated 28 February 2005, and his request for internal review, indicate that he was particularly concerned to have access to a “bluey” dated 3 May 2002. The affidavit of Mr Ramon Enriquez dated 3 March 2006 explains that a “bluey” is an inmate application form used by an inmate in relation to request or complaints, and that the following procedure is adopted:

4.Blank forms are issued by the Area Manager at the inmate’s request.

5. Once the inmate has completed the form, it is returned to the Area Manager for action. If the request/complaint requires action from another area, the form will be forwarded to that other area.

6. It is the usual practice that once the form has been actioned, it will be returned for placement in the inmate’s case management file.

14 Following the planning meeting of 12 December 2005, the applicant advised that the following documents were missing from the documents provided:

“Application 04/05-302:

1.Attachment to item 2, a letter written by Nurse Jason

2. Inmate’s application No 40043 dated 04.03.05

3. Inmate’s application written in Feb 05, about my outgoing mails and officer Eddie Dawson

Application 04/05-012:

1. Inmate’s application No 738933 dated 03.05.02 and its attachments consisting of about 14 pages of letters addressed to MP’s and Australian media

2. Inmate’s application written about Dr Murphy.”

15 In a letter dated 27 February 2006 the respondent’s solicitor, Ms Ball, advised the applicant that she had been able to locate four documents, namely the attachment to item 2, a letter written by Nurse Jason Jordan (from application 04/05-302), and inmate application 738933 dated 3 May 2002 and its attachments, and an inmate application written about Dr Murphy (from application 04/05-012). Ms Ball provided copies of these documents. Ms Ball stated that she had been unable to locate “the 2 inmate applications dated 4 March 2005 (no 40043) and March 2005, relating to CO Brad Carruthers”.

16 Ms Ball provided an affidavit dated 28 July 2006 in which she stated:

13. On 23 January 2006, a further planning meeting was held by the Tribunal, which I attended on behalf of the Department. It was at this time that I was provided with the list of purported missing documents.

14. I subsequently searched the copy of the case management file that had been forwarded to the Employment and Administrative Law Branch and was able to locate all of the documents except for the following: an inmate application form (no 40043) dated 4 March 2005 and another inmate application form dated March 2005 relating to Correctional Officer Brad Carruthers.

15. The list provided at the planning meeting was the first time that the two allegedly missing inmate application forms had been specifically identified by the applicant as missing from his case management file.

16. Notwithstanding that I had been provided with a copy of the applicant’s case management file and had searched it without successes, I contacted Mr Ramon Enriquez, Assistant Superintendent in February 2006 and asked that he conduct a search of the file in order to locate the two allegedly missing inmate application forms.

17. I am advised that on 2 March 2006 Mr Enriquez searched the applicant’s case management file for the forms but was unable to locate them.

18. On 26 July 2006, I attended Long Bay Hospital in order to conduct a search of the case management file myself.

19. I was provided with the applicant’s case management file in its entirety and after thoroughly searching it was unable to find either of the inmate application forms sought by the applicant.

20. I was also advised when I attended Long Bay that an officer of the Department had searched the storage room containing boxes of archived copies of inmate application forms but was unable to locate them.

17 Mr Enriquez provided an affidavit dated 3 March 2006, in which he stated:

8. On Thursday 2 March 2006, I searched the inmate case management file of inmate Dezfouli in an attempt to locate the following documents:
(i) inmate application form number 40043, dated 4 March 2005;

(ii) inmate application form, dated March 2005, relating to CO Brad Carruthers.

9. I did not find the documents referred to in sub-paragraphs (i) and (ii) of paragraph 8 of this my affidavit in inmate Dezfouli’s case management file.

10. In such circumstances I am unable to provide any information as to where the two documents may be located.

18 The applicant did not require that Mr Enriquez be available for cross examination. The applicant cross examined Ms Ball on the contents of her affidavit. In cross examination Ms Ball stated that she had searched for all the documents in the applicant’s list provided in his letter dated 16 December 2005.

19 In oral submissions, Ms Ball submitted that the respondent has taken all reasonable steps, and has provided numerous copies of documents. If the documents had been on the file there would have been no problem in providing them. The documents are either missing, or do not exist. Ms Ball submitted that it was not until the planning meeting in January 2006 that the applicant had first identified the particular documents which he claimed were missing.

20 In oral submissions the applicant argued that the respondent has acted from the beginning of the application to stop him obtaining access. He has a copy of the inmate application concerning Brad Carruthers and inmate application 40043, however the point is that the department has tampered with the case management file, and there are codes and regulations relating to security of case management files. The documents which he claims are missing are attachments to an inmate application relating to Neil Brazil on 3 or 4 May 2002. The search has not been conclusive because the attachments are still missing. The issue he is trying to bring to the Tribunal is the unlawful, inappropriate, and wrong, conduct of the respondent.

21 In Cianfrano v Director General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 the President of the Tribunal, O’Connor DCJ, held that where an applicant raises an argument that an agency has failed to locate relevant documents, and puts before the Tribunal some credible material or submissions which persuade the Tribunal that an arguable case exists, the Tribunal has jurisdiction to determine whether the agency has failed properly to determine the application so that there is a deemed refusal of the application for the purposes of s24(2).

22 Ms Ball submitted that the applicant had not specified the documents which he alleges are missing at the first available opportunity, and considerable time and effort has gone into looking for the two missing documents. However, the applicant has asserted throughout the various planning meeting that documents were missing from his case management file, and he provided a list of specific documents in writing when directed to by the Tribunal. On the basis of further searches conducted in response to that list, the respondent’s representative was able to locate further documents which fell within the scope of the applicant’s request for access. I am satisfied that the applicant has put before me material which establishes that an arguable case exists that the respondent has failed to locate all relevant documents. At the hearing the applicant confirmed that he was pursuing his request for access to two inmate applications, no 40043, and the application relating to Brad Carruthers. The respondent has, in accordance with the onus provided in section 61 of the FOI Act, provided evidence of the searches conducted to locate these documents. In summary, these searches include a search of the copy of the applicant’s case management file provided by the respondent to the Employment and Administrative Law Branch; a search of the case management file by Mr Ramon Enriquez on 2 March 2006; a search of the case management file by Ms Ball on 26 July 2006; and a search of archived copies of inmate application forms by an officer of the respondent.

23 The issue of what constitutes an adequate search was considered by Deputy President Hennessy in Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]:

There are two issues. The first is whether there are reasonable grounds to believe that the requested documents exist or should exist and are, or should be, held by the agency. If the first question is answered in the affirmative, the next question is whether the agency has taken all reasonable steps to find the documents and is satisfied that they are in the agency's possession but cannot be found or that they do not exist. The adequacy of efforts made by an agency to locate documents the subject of an FOI access application are to be judged by having regard to what was reasonable in the circumstances: Re Anti-Fluoridation Association of Victoria and Secretary to Department of Health (1985) 8 ALD 163.

24 In Miriani v Commissioner of Police, New South Wales Police [2005] NSWADT 187, President O’Connor DCJ stated at [30]:

What constitutes a ‘sufficient search’ will vary with the circumstances. Key factors in making an assessment include the clarity of the request, the way the agency’s recordkeeping system is organised and the ability to retrieve any documents that are the subject of the request, by reference to the identifiers supplied by the applicant or those that can be inferred reasonably by the agency from any other information supplied by the applicant.

25 Based on the affidavit of Mr Ramon Enriquez, I am satisfied that the case management file contains all documents relating to classification, placement, and case management of an inmate, and that the respondent’s normal record-keeping procedure would be that an inmate application would be included on the inmate’s case management file once any relevant action had been taken. I am satisfied, based on the affidavit evidence of Ms Ball and Mr Enriquez, that a search has been made of the applicant’s case management file and has failed to locate the two inmate applications which he asserts are missing. There is no indication that either inmate application is under consideration in any other area of the respondent. A search of archived inmate application forms has been undertaken. I am satisfied that the respondent has undertaken reasonable steps to find the documents.

Exemptions claimed for documents 17-21 and 40-44

26 In written submissions dated 14 August 2006 the respondent relies on clause 4(1)(c) of Schedule 1 to the FOI Act, which provides:

4 Documents affecting law enforcement and public safety

(1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected:

…

(c) to endanger the life or physical safety of any person, or

27 The approach to be adopted in considering the exemption provided by cl.4(1)(c) was outlined by the Appeal Panel in State Electoral Office v McCabe [2003] NSWADTAP 28:

In our view, agency opinions making such a grave assessment must be closely scrutinised and not easily accepted. The Tribunal is, we consider, obliged to bring some scepticism to the task of assessing what are necessarily self-serving statements by agencies ….The question is always whether the material, statements of opinion and submissions put forward by the agency justifies reliance on the exception (see s61, burden of proof).

28 In Dunstan v Department of Corrective Services [2004] NSWADT 177 President O’Connor stated that the general approach to be adopted in dealing with the kind of exemptions found in cl 4(1) is addressed by the Federal Court in Centrelink v Dykstra [2002] FCA 1442, which dealt with equivalent provisions in the Commonwealth FOI Act:

20.Mansfield J stated that the test to be applied by the Commonwealth Tribunal involves focusing upon the character of the documents in the circumstances of the case, to determine whether there is a ‘realistic and material possibility of the harm contemplated by the section occurring.’

21.As noted by Beaumont J and Bowen CJ in Attorney-General's Department v Cockcroft (1986) 64 ALR 97 at 112 the test:

‘... require[s] a judgment to be made as to whether it is reasonable as distinct from something that is irrational, absurd or ridiculous, to expect that ... there could be a risk of harm to the life or physical safety of another person.’

29 In Dykstra Mansfield J noted that it is not the personal or subjective belief of particular individuals which is determinative, and continued:

… The Tribunal had to determine whether the documents had the character that their release would, or could reasonably be expected to, endanger the life or physical safety of any person. I do not discern from the Tribunal's reasons that it misdirected itself in considering that question. It set out to judge objectively whether there was a possibility that the disclosure of the documents could endanger the life or physical safety of other persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous.

30 The respondent described the documents in the following terms:

The documents in question contain information pertaining to an alert that was requested by a person (hereafter referred to as “X”) to be placed on the respondent’s Offender Integrated Management System. This system is used by the Department to record all relevant information about inmates and clients of the Department. This includes a screen called “Alerts”, which is used, among other things, to record information such as that requested by X.

31 The respondent provided, on a confidential basis, copies of the relevant documents. Documents 17, 21, and 40-44 are in similar form, and the only substantive information contained in these documents relates to an alert as described in the respondent’s written submissions. Documents 18, 19 and 20 contain this information, and other information. The respondent provided to the Tribunal, on a confidential basis, an affidavit made by “X”.

32 Subject to suppression order

33 Subject to suppression order

34 Subject to suppression order

35 Having considered this affidavit, and the documents in issue, I am satisfied that there is a reasonable possibility that disclosure of the information pertaining to the alert could endanger the life or physical safety of an identifiable person. Accordingly, the whole of documents 17, 21, and 40-44, and those parts of documents 18, 19 and 20 containing information pertaining to the alert, are exempt under clause 4(1)(c) of Schedule 1.

Discretion to disclose

36 In University of New South Wales v McGuirk [2006] NSWSC 1362 Nicholas J held that s 63 of the Administrative Decisions TribunalAct 1997 provides the Tribunal with the discretion to order access to be given to documents which are exempt documents under the FOI Act if it decides that to do so is the correct and preferable decision with regard to the material then before it.

37 Ms Ball submitted that while there may be some exemptions under the FOI Act where it might be in the public interest to disclose documents, the exemption in clause 4 is not one of those. The exemption is intended to protect the personal safety of a person. The applicant submitted that the documents are about him and the principle of the FOI Act is to allow him to have access.

38 I have considered this issue in light of the objects of the FOI Act, which are set out in section 5 of the Act:

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.

(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.

39 Subsection 5(3)(b) requires that the discretions conferred by the Act are to be exercised “as far as possible” to facilitate disclosure of information. That includes the discretion to order access to be given to documents which are exempt documents under the FOI Act. Subsection 5(2)(b) refers to restrictions on access “as are necessary for the proper administration of the Government”. I have decided that there is a reasonable possibility that disclosure of the information pertaining to the alert could endanger the life or physical safety of an identifiable person. It would defeat the purpose of the exemption in clause 4 if that information were to be disclosed to the applicant. In those circumstances, the correct and preferable decision is that access to documents 17, 21 and 40-44 be refused and that partial access be granted to documents 18, 19 and 20 subject to deletion of the material relating to the alert.

Order

1. Decision under review affirmed.

2. Paragraphs 32, 33 and 34 of these reasons are to be disclosed only to the respondent and its legal advisors and not be made available to the applicant or published by the Tribunal.