Richards v Commissioner, Department of Corrective Services

[2011] NSWADT 98

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98

Hearing dates:

On the papers

Decision date:

09 May 2011

Jurisdiction:

General Division

Before:

P. H. Molony, Judicial Member

Decision:

1.Vary the decision of the agency so as to give Mr Richards full access to the QP9 forms, such access to be given within 30 days of the publication of these reasons.

2. The decision is otherwise confirmed.

Catchwords:

Government Information (Public Access) - personal information - reveal

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Government Information (Public Access) Regulation 2009
Information Privacy Act 2009 (Qld)
Privacy and Personal Information Protection Act 1998
Right to Information Act 2009 (Qld)

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409

Category:

Principal judgment

Parties:

Applicant - Andrew John Richards
Respondent - Commissioner, Department of Corrective Services

Representation:

Applicant – In person
Respondent – G Singer

File Number(s):

103200

REasons for decision

Introduction

1. Mr Richards made an access application to the Department of Corrections (the agency) under s 41 of the Government Information (Public Access) Act 2009 (the GIPA Act). He sought access to documents supplied by Corrective Services Queensland to the agency relating to him, and specifically sought copies of charge sheets, bench charges, bail, a photo dated 20/08/2009, and the current version of his criminal history sent via the Queensland Police Service.

1. On 5 August 2010 the agency determined Mr Richards' access application. That decision identified three documents that fell within its scope. The first was a two-page document bearing the heading "Queensland Court Outcomes - In Confidence." It contained Mr Richards's criminal convictions in Queensland. It was released to Mr Richards in full, without redaction.

1. The second and third were document headed 'Queensland Police Service Court Brief' (General)' (called QP9s). They related to two charges brought against Mr Richards in the Southport Magistrates Court of using a carriage service to menace, harass or cause offence, on 1 April 2008. Mr Richards was only granted partial access to this document. The facts alleged to constitute each offence were substantially redacted, so that all details of the complainants and what they alleged were deleted. The agency considered that there was an overriding public interest in not disclosing the redacted information, as it contained material that would reveal an individuals (the complainants) personal information.

1. The agency advised and decided that it did not hold any bail documents relating to Mr Richards or the photograph he sought.

1. On 19 August 2010 Mr Richards filed an application to review the agency's decision with the Tribunal under s 100 of the GIPA Act.

1. Around the same time as Mr Richards was making his access application to the agency, he also made an application to Queensland Corrective Services (QCS) under the Information Privacy Act 2009 (Qld) for access to -

All documents provided to QCS from Queensland Police that was provided to NSWCS Grafton office NSW.'

1. On 17 August 2010 QCS identified 13 pages of documents responsive to his request, to which he was granted full access without deletions. The documents identified consisted of the two QP9s, the Queensland Court Outcomes document, an order and recognizance under the Crimes Act 1914 (Cth) (received from the Court), a permit to leave and remain out of Queensland while under supervision and a direction to report to Grafton Probation and Parole (both created by QCS). Of these, the decision advised that it was not clear whether the last three were sent to the agency.

1. This matter was first listed before me at a planning meeting on 19 October 2010. Mr Richards told both the agency's representative and myself of his request for information to QCS, and that he had been given full and unrestricted access to all documents, He wanted similar access to documents held by the agency. He believed that they might hold further documents provided by QCS. I required Mr Richards to provide both the Tribunal and the agency with a copy of the Queensland decision so that the agency could consider its position.

1. At the next planning meeting held on 26 November 2010 the agency advised that further searches had not turned up any further documents. The agency remained of the view that the deletions from the QP9's should remain. Mr Richards was insistent on his right to full access to the documents under the GIPA Act. Being unable to bring about a resolution I made directions for the filing of evidence. I listed the matter for a further planning meeting on 8 March 2011, after all evidence had been filed, when I would determine whether the matter needed to go to hearing or could be determined on the papers.

1. On 28 January 2010 the agency filed and served copies of the following documents:

- Faxed letter dated 28 July 2010 from the agency's Information Access & Privacy Unit to the District Manager of its Grafton office, requesting copies of documents responsive to Mr Richards's access application.

- Letter in reply from the manager of the Grafton office, dated 29 July 2009, enclosing the documents discovered and advising the office had not been supplied with bail documents or the photograph Mr Richards had requested.

- The decision under review giving Mr Richards partial access dated 5 August 2010, with attachments.

- Letter from the Executive Manager, Information Rights, Department of Community Safety, Queensland dated 14 December 2010 to the agency. This document advised of further inquiries as to what documents had been forwarded by QCS to the agency's Grafton office. It confirmed that the two QP9s and the Court Outcome Sheet had been sent. There was no record of any other document being sent. The letter advised that it is usual practice to keep such a record. Attached to the letter were copies of the decision to release the documents to Mr Richards under Information Privacy Act 2009 (Qld) and copies of all the documents released to him.

1. At the planning meeting on 8 March 2011 the agency pointed to the QP9 documents released by QCS as being the same as those held by it, and released to Mr Richards in redacted form. In an effort to resolve the matter I offered to compare the QP9's provided by QCS with the un-redacted, confidential copies of the documents in dispute, provided by the agency to the Tribunal. This would enable me to see if they were the same, and to tell Mr Richards whether or not this was the case. This proposal was rejected by Mr Richards who insisted on unrestricted access to the documents under the GIPA Act.

1. That being the case, and there being little issue about the facts, I determined under s 76 of the Administrative Decisions Tribunal Act 1997 that the review application could be adequately determined on the papers in the absence of the parties. I remain of that view. I made directions for the filing of submissions following which I would determine the review on the papers.

The Government Information (Public Access) Act 2009

1. The GIPA Act commenced operation on 1 July 2010. The objects of the Act are set out in (s 3(1) -

In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a) authorising and encouraging the proactive public release of government information by agencies, and

(b) giving members of the public an enforceable right to access government information, and

(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.

1. "Government information' is given a wide meaning (s 4) being 'information contained in a record held by an agency.' 'Agency' is also defined in s 4. Certain information relating to the functions of some government agencies is 'excluded information' for the purposes of the GIPA Act (e.g. the judicial functions of courts and the complaint handling and investigative functions of various government agencies). A valid access application cannot be made for excluded information (s 43). The functions and agencies concerned are set out in Schedule 2 to the Act.

1. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). Applicants for access to government information have a legally enforceable right to be provided with access to that information, unless there is an overriding public interest against disclosure (s 9). The GIPA Act overrides other statutory provision that prohibit disclosure apart from the 'overriding secrecy laws' that are set out in Schedule 1. In the case of overriding secrecy laws it is conclusively presumed that there is an overriding public interest against disclosure (s 11 and s 14).

1. With respect to other government information, the Act establishes a principle that there is pubic interest in favour of disclosure (s 12(1)). Section 12(2) says that public interest considerations in favour of disclosure are not limited. It provides -

Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information.

Note. The following are examples of public interest considerations in favour of disclosure of information :

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct

1. There will only be an overriding public interest against disclosure when the public interest test in s 13 is satisfied. It provides -

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

1. The public interest considerations against disclosure are limited to those set out in the Table to s 14. Section 14(2) provides that -

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

The Information Commissioner may issue guidelines about public interest considerations against disclosure, to assist agencies, but may not add to the list of considerations (s 14(3)). The Information Commissioner has not issued any such guidelines.

1. Among the public interest considerations against disclosure in the Table to s 14 are the following -

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 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002 ,

(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings,

(d) prejudice the fair trial of any person, the impartial adjudication of any case or a person's right to procedural fairness,

(e) reveal false or unsubstantiated allegations about a person that are defamatory,

(f) expose a person to a risk of harm or of serious harassment or serious intimidation,

(g) in the case of the disclosure of personal information about a child-the disclosure of information that it would not be in the best interests of the child to have disclosed.

1. 'Personal information' is defined in clause 4 of Schedule 4 -

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

(a) information about an individual who has been dead for more than 30 years,

(b) information about an individual (comprising the individual's name and non-personal contact details) that reveals nothing more than the fact that the person was engaged in the exercise of public functions,

(c) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subclause.

1. 'Reveal' is defined in Clause 1 of Schedule 4 -

reveal information means to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure).

1. An access application is to be determined in accordance with s 58 -

(1) An agency decides an access application for government information by:

(a) deciding to provide access to the information, or

(b) deciding that the information is not held by the agency, or

(c) deciding that the information is already available to the applicant (see section 59), or

(d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or

(e) deciding to refuse to deal with the application (see section 60), or

(f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact.

Note. These decisions are reviewable under Part 5.

(2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.

(3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

1. In exercising functions under the Act s 3(2) instructs that -

It is the intention of Parliament:

(a) that this Act be interpreted and applied so as to further the object of this Act, and

(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

1. Section 80 sets out a series of decision that are reviewable decisions under the Act. It provides -

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

(a) a decision that an application is not a valid access application,

(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,

(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

(e) a decision that government information is not held by the agency,

(f) a decision that information applied for is already available to the applicant,

(g) a decision to refuse to confirm or deny that information is held by the agency,

(h) a decision to defer the provision of access to information in response to an access application,

(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),

(j) a decision to impose a processing charge or to require an advance deposit,

(k) a decision to refuse a reduction in a processing charge,

(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,

(m) a decision to include information in a disclosure log despite an objection by the access applicant (or a decision that the access applicant was not entitled to object).

In Mr Richards case the decision to give him partial access and that the agency does not hold the photograph or bail information are both reviewable decisions.

1. Persons aggrieved by reviewable decisions have a number of options available to press their access applications. First, they may ask the agency to conduct an internal review under s 82 within 20 days of the original decision (s 83). The internal review is to be completed within 15 working days of receipt (s 86), failing which the agency is deemed to have made the original decision again (s 86(5)). A decision made on internal review is itself a reviewable decision, although it is not possible to seek an internal review of an internal review (s 88).

1. Secondly, an access applicant who is aggrieved by a reviewable decision may seek review of the decision by the Information Commissioner under s 89. Where the person aggrieved is not the access applicant he or she must first seek an internal review (s 89(2)). A review by the Information Commissioner must be sought within 8 weeks of notice of decision being given to the access applicant. The Information Commissioner may then make a recommendation to the agency (s 92) including a recommendation that the agency reconsider the matter and make a new decision (s 93(1)), and a recommendation that there is not an overriding public interest against disclosure (s 94). Reconsideration following a recommendation is by way of internal review, where there has been no previous internal review, or by means of new decision where there had been a previous internal review (s 93).

1. Thirdly a person aggrieved may seek a review by the Tribunal (s 100). When read with s 38 of the Administrative Decisions Tribunal Act 1997 this provision confers jurisdiction on the Tribunal to review reviewable decisions under the GIPA Act. Such applications are to be made within 8 weeks of the decision (s 101(1)) or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application."

1. Once a decision is subject to review before the Tribunal it cannot be the subject of a review by the Information Commissioner (s 98).

1. In any review of a reviewable decision s 105 places the onus of justifying the decision on the agency concerned. It provides -

(1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.

(2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

( 3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.

1. The Tribunal's function on review under s 63 of the Administrative Decisions Tribunal Act 1997 is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

1. The Information Commissioner and any person who could be aggrieved by a decision on review have a right to appear and be heard in review proceedings (s 104).

1. If the decision being reviewed by the Tribunal is one deemed to have been made, because the access application or internal review was not decided in time, the Tribunal may allow the agency further time in which to make the decision, which order may be subject to conditions (s108). The subsequent decision may then, at the request of the applicant, be the subject to the Tribunal's review (s108(3)).

1. Section 107 sets out the procedure to be followed by the Tribunal in dealing with public interest considerations. It provides -

(1) In determining an application for ADT review, the ADT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an ADT review, the ADT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of the ADT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an ADT review, the ADT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:

(a) the public and the applicant, and

(b) the applicant's representative if the ADT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

Consideration

The decision to give partial access

1. The information deleted from the two QP9 forms consists of the names of the individual complainants and their roles in public office, and details of what they told Queensland Police about Mr Richards' harassment of them. Both contain information about and opinion about Mr Richards. They therefore contain a mixture of personal information about the complainants concerned and Mr Richards. The primary focus of the information is on Mr Richards.

1. Given the nature of the QP9 documents, as briefs of evidence relied on by the Queensland Police, their content was revealed at the Southport Magistrates Court, on 13 May 2010. On that day Mr Richards was charged with two counts of using a carriage service to menace, harass or cause offence. He was placed on a good behaviour bond, required to enter into a $1,000 recognizance and placed on probation for two years, without conviction.

1. That the information was disclosed in open court, and was known to Mr Richards, was central to the view taken by QCS when releasing the documents to him. QCS concluded that Mr Richards was already aware of the information "as it has been put to you by police and the court." This statement is consistent with Mr Richard's submissions that the QP9s were tendered in the course of the court proceedings, and that he has copies of the witness statements of the complainants that were before the court.

1. As the information was disclosed in open court, certain consequences follow. Because the information has already been publicly revealed, release under the GIPA Act could not be reasonably expected to reveal the complainant's personal information: see the definition of reveal (cl 1, Sch 4). As a result, the public interest against disclosure in 3(a) of the Table to s 14 cannot be relied on as a ground for refusing disclosure.

1. The OP9 documents released by QCS were released to Mr Richards under the Information Privacy Act 2009 (Qld). This is comparable to the Privacy and Personal Information Protection Act 1998 in NSW, not to the GIPA Act. The corresponding Act to the GIPA Act in Queensland is the Right to Information Act 2009 (Qld) (see clause 10 of the Government Information (Public Access) Regulation 2009 ). Release under the Information Privacy Act 2009 (Qld) involves the release of personal information relating to an individual to that individual (s 40), not to the public. Thus release of the QP9s to Mr Richards under the Information Privacy Act 2009 (Qld) does not raise the same concerns about public disclosure, as does the disclosure in open court.

1. I do note, however, that theQP9 documents released by QCS to Mr Richards do throw some further light on the nature of their disclosure in the court process. While the content of the documents held by the agency is the same as that in those supplied by QCS, the heading on the QCS documents is different. They bear the heading 'Queensland Police Service Court Brief' (Defendant Copy),' rather than 'Queensland Police Service Court Brief' (General)' This confirms that during the court process the information contained in the brief was made available to the Court and Mr Richards.

1. It is important to note that the definitions of 'government information', 'personal information', and 'reveal' in the GIPA Act operate on information alone, not, as was the case under the Freedom of Information Act 1989 , with respect to documents. The issue for consideration is not whether the document has been publicly disclosed, but whether the information they contain has been publicly disclosed. The effect of s 105(1) is to place the burden, of establishing that a decision with respect to an access application is justified, on the agency. In circumstances such as the present, that burden includes establishing that release under the GIPA Act could reasonably be expected to reveal an individual's personal information. Where there is material indicating that the information has already been publicly disclosed, that burden requires the agency to establish that it was not.

1. In my opinion the nature of the QP9 forms together with decision under the Information Privacy Act 2009 (Qld) point to the information in the forms being publicly disclosed in open court, in the usual course of events. There is no evidence to the contrary. That being the case I am satisfied that the public interest against disclosure, on the ground that release of the information could be reasonably be expected to reveal personal information of the complainants, does not apply. That personal information has already been publicly disclosed, and hence revealed.

1. There is, therefore, no applicable public interest against disclosure. The public interest in favour of disclosure is that the information in issue contains Mr Richards' personal information. That information is intermingled with a small amount of information about other individuals that has already been publicly disclosed, and disclosed to Mr Richards. In those circumstances the public interest test requires disclosure.

1. I would add, that had it been established that the information relating to other individuals had not been publicly disclosed, I would none the less, for the same reasons, have concluded that, on balance, the public interest favoured disclosure.

The decision that the agency does not hold documents

1. The other issue that requires determination is a review of the agency's decision that it does not hold any further documents provided by QCS, than those it has said it holds. The evidence in this regard consists of correspondence between the agency's Information Access & Privacy Unit and the District Manager of its Grafton office, and with the Executive Manager, Information Rights, Department of Community Safety, Queensland.

1. I am satisfied that the correspondence establishes that there has been a search for documents within the scope of Mr Richard's access application at the agency's Grafton office, and that the search discovered only the documents produced by the agency. While Mr Richards believes that there should be additional documents, the inquiries conducted by the Executive Manager, Information Rights, and documented in her letter of 14 December 2010, persuade me that the only documents sent to the Grafton office by QCS are those produced.

1. I note that in his submissions, filed on 20 March 2010, Mr Richards indicated that the Grafton office should have a copy of the order made by the Southport Magistrates Court on 13 May 2010, because he gave it to them. Such a document does not fall within the scope of his request, as it was not provided by QCS.

1. In my view the correct and preferable decision in this regard is that reached by the agency. Namely, that it does not hold any further information within the scope of Mr Richards' request

Conclusion

1. As a result of the above I will make an order varying the decision of the agency so as to give Mr Richards full access to the QP9 forms, such access to be given within 30 days of the publication of these reasons. The decision of the agency is otherwise confirmed.

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Decision last updated: 10 May 2011