Dunstan v Department of Corrective Services

[2004] NSWADT 177

CITATION:	Dunstan v Commissioner, Department of Corrective Services [2004] NSWADT 177 revised - 7/09/2004
DIVISION:	General Division
PARTIES:	APPLICANT Colin Dunstan RESPONDENT Commissioner, Department of Corrective Services
FILE NUMBER:	043022
HEARING DATES:	8/06/2004
SUBMISSIONS CLOSED:	08/10/2004
DATE OF DECISION:	08/20/2004
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - law enforcement & public safety
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 Freedom of Information Act 1989
CASES CITED:	Attorney-General's Department v Cockcroft (1986) 64 ALR 97 Centrelink v Dykstra [2002] FCA 1442 Commissioner of Police v District Court of New South Wales (Perrin’s case) (1993) 31 NSWLR 606 Dunstan v The Queen [2001] FCA 147 FA v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 7 Queen v Colin George Dunstan [2000] ACTSC 35
REPRESENTATION:	APPLICANT In person RESPONDENT E Ball, solicitor
ORDERS:	1. The respondent’s determination is varied. ; 2. The agency is to disclose the passages from Documents 7, 8, 12(c), 12(b), 12(a), 12 and 13 as identified in the Confidential Appendix to the Reasons. ; 3. Order 2 to take effect after 28 days from the date of delivery of these reasons.; 4. Liberty to the respondent to apply within 21 days to the Tribunal for a confidential conference if there is a need to clarify these orders.

1 The applicant for review is Colin George Dunstan (Mr Dunstan), a prisoner held at the Goulburn Correctional Centre. On 3 February 2004 he applied to the Tribunal for review of a determination made under the Freedom of Information Act 1989 (the FOI Act) by the respondent agency, the Department of Corrective Services. The Department had refused to grant him access to some of the documents requested by him in an access application dated 14 November 2003.

Background

2 Mr Dunstan is serving a nine year sentence (with a non-parole period of five years) for six counts of knowingly causing to be carried by post an article containing a totally prohibited substance (an explosive) and three counts of intentionally attempting to inflict grievous bodily harm on another person. The head sentence and the non-parole period commenced on 26 May 1999.

3 These offences occurred in 1998, and received nationwide publicity. Mr Dunstan posted the articles through the Canberra mail exchange. Mr Dunstan, when apprehended, made full admissions, but denied that he had any intention to cause physical harm. He claimed that he had first flattened the batteries of the devices so they would not explode. As it transpired, one did explode on being thrown into a bin in the course of mail-handling at the exchange. The 28 persons to whom parcels were addressed included officers of the Australian Taxation Office (the ATO) (where Mr Dunstan worked), the Human Rights and Equal Opportunity Commission and other organisations. (This information is drawn from the report of an appeal against the convictions to the Full Federal Court. The appeal was dismissed. See Dunstan v The Queen [2001] FCA 147.)

4 In May 2003 Mr Dunstan applied for unescorted day or weekend leave, naming as his sponsor for that purpose, his wife Sokkha.

5 The application was referred by the Department for advice to the Pre-Release Committee of the Serious Offenders Review Council.

6 He sought access to documents which had been submitted to the Pre-Release Committee by the Department on or about 20 October 2003 regarding the proposed change in his classification, as well as all psychological and intelligence reports pertaining to him.

7 The Council recommended on 14 November 2003 that the reclassification application be supported. On the same day, the Department rejected the Council’s recommendation. The Department notified Mr Dunstan of its decision on 17 November 2003.

8 Mr Dunstan has accepted some parts of the determination of the Department. The Tribunal held planning meetings on 9 March 2004, 4 May 2004 and 25 May 2004. The Department noted at the first meeting that Mr Dunstan’s application of 19 December 2003 was still being dealt with, and that it might be desirable for it to be dealt with in these proceedings as it went to related documents. Consequently the hearing on 8 June 2004 dealt with the matters that remained in dispute in respect of both access applications.

9 Of the documents refused, Mr Dunstan has not sought review in respect of Documents 15 and 16. The following documents remained in issue at the time of hearing: Documents 6, 7, 8, 12, 12(a), 12(b), 12(c) and 13. The three documents described as 12(a), 12(b) and 12(c) were only located after the application for review had been filed. They fell within the scope of the original access request. The Department refused access. As to Document 6, Mr Dunstan asked whether the missing fax cover page could be located and provided. The Department agreed to look into the matter. The missing cover sheet was located and provided to Mr Dunstan by mail on 10 June 2004. There is no further issue in respect of Document 6.

10 The Department relies principally on the exemptions provided by clauses 4(1)(c) and 4(1)(e) of Schedule 1 of the FOI Act. These exemptions belong to the ‘restricted documents’ group of exemptions, found in Part 1 of the Schedule. The FOI Act has special provisions dealing with this group of exemptions. There is a special procedure laid down by s 57, under which the Premier as Minister administering the Act is declared to be a party to the proceedings. The Premier did not appear in these proceedings. The Department did not ask for the special procedure allowed by s 57(2) (of receiving evidence or argument in the absence of the applicant) to be adopted by the Tribunal. The documents in issue were, in accordance with usual procedures, tendered confidentially.

11 The burden of establishing that the determination is justified lies on the agency: FOI Act s 61. Section 55(a) provides that: ‘In determining a review application, the Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter.’

Victims Register Documents – Background

12 Document 8 precedes Document 7 in time. These two documents relate to the registration of persons on the Victims Register established under the Crimes (Administration of Sentences) Act 1999. This is a facility used by the Serious Offenders Review Council to contact people who wish to have their views taken into account when it is considering whether a prisoner should be given leave from detention, parole and the like.

13 In June 2003 staff at the ATO who had been the subject of the ‘letter bombs’ learnt that Mr Dunstan had applied for unescorted leave. The Australian Government Solicitor (AGS) notified the Community Liaison Office at the Department that they had concerns. In Document 9 (released), the AGS advised that it would apply to have the ATO placed on the Victims Register.

14 Document 8 is dated 24 June 2003 and is from the Community Liaison Officer of the Department to the classification clerk, Goulburn and has attached four pages. The fax cover sheet was released with some amendments. The remainder was not released.

15 The cover sheet notifies the classification clerk that a person, name deleted, has been registered on the Victims Registers in the ACT and NSW as a primary victim. The cover sheet notes that a ‘representative’ for primary victims at the ATO in the ACT has also been registered with the ACT & NSW Registers. It states that: ‘That registration came from the Australian Government Solicitor representing a number of persons currently working at the ATO.’

16 Document 7 is dated 9 July 2003 and is from the Community Liaison Officer to the classification clerk, Goulburn and has attached four pages. The Department has partially exempted the contents of the fax, and totally exempted the remaining four pages.

17 The cover sheet indicates that there are two submissions being attached from persons who are not identified and goes on to state that: ‘[They] assure me that the sentencing remarks make it clear that all 28 intended and actual bomb recipients were Dunstan’s victims, and that the individuals named on the warrants of conviction are simply representative of the larger number. I am also assured that the submissions received are from persons named in the statement of facts.’

Clause 4(1)(c)

18 The agency relies on cl 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.’

19 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 (28 November 2002), there dealing 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 Beamount 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.’
Document 7

22 Mr Dunstan is only pressing for one piece of information in relation to Document 7. He does not seek access to the attached four page submission.

23 Accordingly it is only necessary for the Tribunal to examine the question of whether the words deleted from the fax cover page in the second paragraph of the main text are protected by the exemption. The relevant passage as disclosed reads:

‘I now enclose submissions from (2) from [here there is a gap of about two lines] and assure me that the sentencing remarks make it clear that all 28 intended and actual bomb recipients were Dunstan’s victims…’.

24 At hearing Mr Dunstan said that he did not seek access to the identities of any victims seeking placement on the register, he only wanted to know the name of the organisation that supplied the ‘erroneous’ information found in the document as revealed to him.

25 The exemption provided by cl 4(1)(c) is not expressed to protect documents where there is a remote possibility that release may lead to a person’s life or physical safety being endangered. This must be a possibility which ‘could reasonably be expected’ to arise from disclosure.

26 The deletion in issue refers to an organisation. The submissions prepared by the Department addressed the risk to individuals of release of their identities. They did not address the point that Mr Dunstan continues to press - what risks, if any, might face an organisation that has transmitted information if its identity is revealed.

27 The Department’s written submissions (Ex F), including the attachments, were made available to Mr Dunstan. The Tribunal must be somewhat circumspect in these reasons in taking this point any further as it may lead to the organisation being identified (and thereby adversely affect the Department were it to appeal against this decision and succeed on that appeal).

28 While the concerns expressed by the trial judge over Mr Dunstan’s conduct (see Queen v Colin George Dunstan [2000] ACTSC 35 (Higgins J of the ACT Supreme Court)) support the need for care to be shown in making available to Mr Dunstan any statements made by people who were connected with the complaint inquiries that occurred at the ATO and later at the Human Rights and Equal Opportunity Commission, there is little to suggest that a reasonable concern could be held that the organisation named might face an appreciable risk of the kind to which cl 4(1)(c) is addressed.

29 At hearing the Department relied on other heads of exemption. These were clauses 4(1)(f), 4(1)(h), 5, 6 and 13. The Tribunal will not set out the entire text of these exemptions.

30 The question under cl 4(1)(f) is whether disclosure could be reasonably expected to prejudice the maintenance or enforcement of any lawful method or procedure for protecting public safety; and under (h) whether it could reasonably be expected to prejudice any system or procedure for the protection of persons or property.

31 Clauses 5 and 6 go to circumstances where the interests of third parties to government may be affected – cl 5 deals with inter-governmental relations and cl 6 with the unreasonable disclosure of the personal affairs of individuals. In light of Mr Dunstan’s concession, cl 6 is no longer relevant to the consideration of this document. Clause 13 seeks to protect from disclosure information obtained in confidence if certain criteria are met.

32 In relation to these additional exemptions the Department relied entirely on a letter from the ACT Government Solicitor. The ACT submissions were directed to concerns over the position of victims who wish to have their views taken into account in connection with the pre-release and parole process. They did not seek to protect the name of the organisation.

33 Accordingly, the Department’s determination is varied, so as to permit disclosure of the name of the organisation and the first seven words (treating the abbreviation as one word for this purpose).

Document 8

34 In the case of Document 8 the two pieces of information deleted relate to an individual. Given Mr Dunstan’s concession it is not necessary to examine the case made by the Department. Mr Dunstan no longer presses a case in respect of Document 8.

Intelligence Documents – Documents 12(c), 12(b), 12(a), 12 and 13

35 As to all of these documents the Department seeks to rely on two categories of exemption. The principal exemption relied upon by the Department is cl 4(1)(e), 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: …


(e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law).’

36 The approach suggested in Cockcroft is applicable also to the consideration of this exemption.

37 The Department also relied on cl 6 which provides:

‘6 Documents affecting personal affairs

(1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased).

(2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made.’

38 The cl 6 exemption applies to the protection of the identity of individuals whose personal affairs might be disclosed to an unreasonable degree. It does not apply to the identity of individuals where the matters at risk of disclosure concern the execution of their official responsibilities. See generally Commissioner of Police v District Court of New South Wales (Perrin’s case) (1993) 31 NSWLR 606. For the identity of an official to be protected, other interests of government must be shown to be at risk. Accordingly the Tribunal has examined the claims for protection of the identity of officers doing their work by reference to cl 4(1)(e).

39 The documents are best dealt with in their chronological order. The oldest document is Document 12(c), and parts of its contents are to be found repeated in exempted passages in the other documents in this group.

40 Document 12(c) is described in the Schedule of Documents as ‘Information Report containing intelligence information dated 11 July 2000’.

41 At hearing the Department pressed its objection to the release of any of the contents of Document 12(c). On reviewing Mr Dunstan’s written submissions after the hearing, the Tribunal noted that at page 15 Mr Dunstan gave details of a discussion between him and senior Corrections officers in 2002 where reference was made to information held by them which had influenced judgments they had made in relation to Mr Dunstan’s then application for a less secure classification. There was a great deal of similarity between Mr Dunstan’s notes and the contents of the document in issue, sufficient to suggest that its substantive contents were already known to Mr Dunstan as a result of a voluntary disclosure by the Department.

42 Consequently the Tribunal wrote to Ms Ball inviting submissions on whether this material remained the subject of a claim to exemption. She responded by letter dated 10 August 2004 indicating that the Department accepted that such a release had occurred, did not challenge Mr Dunstan’s account, and did not press its claim for exemption in regard to that material. However the Department continued to press its claim as it related to material other than that which repeated the substantive contents of Document 12(c). She made detailed submissions. These have been marked as Confidential Exhibit G.

43 The Tribunal has reviewed this document and is satisfied that the words found in lines 2, 3, 4 and 5 should be released primarily for the reason that their contents have already been revealed to Mr Dunstan by the Department, therefore the interests sought to be protected by cl 4(1)(e) are not placed at risk: to similar effect, there involving a case where s 4(1)(b) was relied upon, FA v Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 7 at [41]-[43]. The Tribunal is satisfied that the remainder of the document should not be released as release could, in the Tribunal’s opinion, be reasonably expected to cause prejudice to one or more of the interests of government referred to in cl 4(1)(e).

44 Document 12(b) is described in the Schedule of Documents as a three page ‘information report 0967.00 containing intelligence information dated 11 July 2000’. The document was created in August 2000. Clause 4(1)(e) is relied upon. For the same reasons as apply to Document 12(c) the words that appear under the headings ‘Information Category’ and ‘Information’ should be released.

45 As to the remainder of the contents of the document, there are elements which an across-the-board exemption claim based on cl 4(1)(e) can not sustain. The material recites publicly known facts (or alleged facts) to do with Mr Dunstan’s criminal history, as well as material which simply repeats or paraphrases material first published in newspapers. There can, the Tribunal considers, be no tenable claims for protection of information of this kind based on intelligence or law enforcement considerations. So much is, the Tribunal considers, implicit in some of the decisions to disclose already made by the Department where material of that character has been released. This issue is discussed more fully below in connection with Document 12.

46 There are also passages in Document 12(b) that are substantially or exactly identical to passages in Document 12 that the Tribunal considers are not exempt. They should also be released, for the reasons given below in connection with Document 12.

47 Document 12(a) is described in the Schedule of Documents as a ‘document containing intelligence information dated 1 March 2002’. There is one passage that is similar to the text that the Tribunal considers should be released from Document 12(c). It comprises the full sentence that begins in line 9 with the word ‘During’ and ends ‘mail’.

48 There is a sentence which follows which goes to matters discussed below in connection with Document 12, and should also be released for the reasons given below. The next sentence should also be released for the reasons given in relation to similar contents in Document 12. The remainder is exempt material within the meaning of cl 4(1)(e).

49 Document 12 is dated 29 October 2003 and is described by the Schedule of Documents as DCS Intelligence Report (IR 0967.00). The Department claims a partial exemption in relation to pages 2, 3 and 5 and a total exemption in relation to pages 1, 4 and 6.

50 From Document 12, the Department has already released the following passages:

51 (a) Three sentences at the foot of page 2 and the top of page 3. They refer to publicity surrounding Mr Dunstan’s case, including a statement in one of the newspaper articles that Mr Dunstan has connections with a right wing extremist group, the Australian Nationalists Movement and a further statement that he is a ‘close associate of’ with the words that follow deleted. The next passage of text says that the article states that a person whose name is deleted is currently serving an 18 year sentence for the bombing of five Chinese restaurants in Perth in the late 1980’s. The top of page 3 continues this text, noting that the article asserts that Mr Dunstan waged the bomb campaign that led to his convictions ‘in the aftermath of an affair with a co-worker at the Australian Taxation Office’. The next sentence commences with the words ‘Intended recipients of the bombs included’ and the remainder of the page is deleted.

52 (b) The foot of page 5. The text is the same as that released from the bottom of page 2 and the top of page 3.

53 The principal submission of the Department seeking to uphold the exemption of the remainder of the document was that ‘intelligence gathering is an imperative and necessary part of the respondent’s functions as a law enforcement agency’. The Tribunal accepts this submission. Mr Dunstan also agreed with this view. He added that an intelligence system may not operate satisfactorily if it contains false or misleading information. He expressed concern over the material that had been released to him, which referred to his connection with the right wing group Australian Nationalists Movement. He asserted that it was incorrect. He pressed for the release of other material that might contain assertions of that kind.

54 Deletions that occur within otherwise-released text: In the material referred to at para [52], the first deletion appears after the following released text: ‘In one of the above articles, it is revealed that Dunstan has connections with the right wing extremist group, the Australian Nationalists Movement (ANM) and a close associate of’ with the following words deleted. The released text then resumes with the words ‘The article also states that’, with a further short deletion followed by the words, ‘is currently serving an eighteen year sentence for the bombing of five Chinese Restaurants in Perth in the late 1980’s’.

55 As to the second deletion, there may be circumstances in which it is appropriate applying cl 6 (unreasonable disclosure of personal affairs) to decline to release the name of a person who has been convicted and sentenced. The Tribunal does not see this as such a case. The individual is a figure of great notoriety, the surrounding detail that is left in the text released would be enough to identify him to a reasonably informed reader (and certainly to Mr Dunstan) and it is clear that the information is drawn from a newspaper article. The Department’s decision should be varied to permit release of the name that is deleted from these otherwise-released passages.

56 The first deletion should also, the Tribunal considers, be released. It is plainly drawn from newspaper articles. There is no discernible risk to intelligence in having released the name mentioned there or the way the name is described. There was no privacy case put by the Department for the protection of this name.

57 The third deletion is of the closing words of the sentence beginning ‘Intended recipients of the bombs included’ with the next words deleted. These words do not contain personal names but refer to public offices. Again the Tribunal does not see any risk to intelligence or privacy in having this information released. The material is clearly drawn from media coverage. There is no discernible risk to privacy or intelligence in having it released.

58 Passages of text that have been fully deleted. The Tribunal must be circumspect in dealing in these public reasons with the Department’s case as it relates to the unreleased material.

59 The Tribunal has inspected the document. It is satisfied that much of that which has not been released should remain protected principally for the reason that release would prejudice the effectiveness of lawful methods for dealing with possible contraventions of the law.

60 That said the Tribunal does not see any such basis for not releasing the two dot points on page 2 that are found immediately above the first block of material that has been released (block (a)). The Tribunal has in mind the two dot points beginning with the word ‘DUNSTAN’ but not the lead-in sentence. They purport to report public facts. At page 5 the information contained in those two dot points is repeated and also deleted. The first of the dot points from page 2 appears as a sentence in the ordinary text of the first main paragraph. The second item appears again as a dot point. For the same reasons, these items of information are not, in the Tribunal’s opinion, protected by the exemption.

61 The Tribunal does not see any need to protect page 4, which in its opinion is full of administrative information of no intelligence significance. The one item of information that appears on that page that may have some intelligence significance is the reference to the name of an office with which contact is to be made as to the administrative matters mentioned there. The Tribunal is not satisfied that the release of that information (the name of the office) could reasonably be expected to prejudice the conduct of the intelligence function in the ways identified by cl 4(1)(e).

62 The document also includes material that reiterates the contents of Document 12(c) and for the reasons given there should be released.

63 The remainder of the document should be protected as it satisfies cl 4(1)(e) including the name of the officer responsible for its preparation and the name of the office held by the officer.

64 Document 13 is also dated 29 October 2003 and is described as Summary of abovementioned intelligence report (i.e. Document 12) contained in ‘a document addressed to the Governor of Goulburn and Deputy Governor of Pre-Release Programs Unit’. Partial exemption.

65 The document is a communication from the Corrections Intelligence Group at Silverwater to the Governor, Goulburn with a copy to the Deputy Governor, Pre-Release Programs Unit with the heading ‘Details of: Dunstan’. The only substantive information that should be released is text that repeats the information that the Tribunal considers should be released in respect of Documents 12(c) and 12. No other information contained in that document is to be released.

66 At hearing Mr Dunstan sought further information in respect of this Document. He asked for the date of transmission of this document plus a copy of the document showing the date of creation. In her affidavit filed 30 June 2004 Ms Ball advised that the Serious Offenders Review Council did not hold any version of Document 13 with ‘more legible tax folio identifiers’ as sought by Mr Dunstan. She also checked with other organisations which might hold such a document – the Area Manager’s section at the Goulburn Correctional Centre as well as the Intelligence section there; and the Corrections Intelligence Group. The Tribunal is satisfied that Ms Ball’s enquiries have dealt adequately with Mr Dunstan’s enquiry.

67 A document with the date shown has been disclosed and that date is referred to in this decision.

68 The Tribunal’s assessment involves conclusions that, in addition to the passages released prior to hearing by the Department, there should be further releases (either in light of concessions subsequently made by the Department or because, in the Tribunal’s opinion, the claims to exemption are not justified). As the documents are obviously sensitive ones the Tribunal has marked on a copy set of the unexpurgated documents the passages it considers should be released. That document is contained in an envelope marked Confidential Appendix to Reasons, and is to be provided to the Department with these Reasons.

Order

1. The respondent’s determination is varied.

2. The agency is to disclose the passages from Documents 7, 8, 12(c), 12(b), 12(a), 12 and 13 as identified in the Confidential Appendix to the Reasons.

3. Order 2 to take effect after 28 days from the date of delivery of these reasons.

4. Liberty to the respondent to apply within 21 days to the Tribunal for a confidential conference if there is a need to clarify these orders.

Revised: 7 September 2004 Paragraphs 5 and 7