State of Victoria v Brazel
[2008] VSCA 37
•7 March 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3727 of 2007
| STATE OF VICTORIA | |
| Appellant | |
| v | |
| GREGORY JOHN BRAZEL | Respondent |
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JUDGES: | MAXWELL P, BUCHANAN and VINCENT JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 September 2007 | |
DATE OF JUDGMENT: | 7 March 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 37 | |
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PRACTICE AND PROCEDURE – Discovery – Inspection – Public interest immunity – Prisoner suing prison authority for negligence in allowing assault to occur in prison – Claim for public interest immunity over prison map and incident review report – Competing public interest in administration of justice – Whether “public order” head of public interest immunity – Public interest immunity limited by test of demonstrable necessity – Whether disclosure of contested documents would compromise prison security and/or risk safety of prisoners or prison staff – Whether contents of disputed documents current and controversial – Commonwealth v Northern Land Council (1992) 176 CLR 604, Sankey v Whitlam (1978) 142 CLR 1 discussed – New South Wales v Bujdoso (2005) 227 CLR 1 cited.
APPEAL – Nature of appeal – Decision to disallow claim for public interest immunity – Whether exercise of discretion – Whether appeal subject to principles in House v The King (1936) 55 CLR 499 – Commonwealth v Northern Land Council (1991) 30 FCR 1; (1992) 176 CLR 604 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T J Ginnane SC with Mr R Dyer | Russell Kennedy |
For the Respondent | Mr A D Clements | Coadys |
MAXWELL P,
BUCHANAN JA,
VINCENT JA:
The respondent, Gregory Brazel, is serving a lengthy prison term. In October 1998, while he was being held in the high-security Acacia Unit at Barwon Prison, he was attacked by other prisoners. He is now suing the State of Victoria for negligence said to be constituted by the failure of prison authorities to prevent the assault. In particular, Mr Brazel alleges a failure to supervise the area where he was held and a failure to monitor other prisoners ‘when it was known that [he] was at risk of injury from other prisoners.’
This appeal arises because a County Court judge ordered the State to produce for Mr Brazel’s inspection documents containing information in respect of which the State has claimed public interest immunity (‘PII’). As his Honour’s ruling was interlocutory, the State requires leave to appeal. For reasons which follow, we would grant leave but dismiss the appeal.
The documents in dispute
Two documents are in dispute. The first is a schematic diagram of the Acacia Unit (‘the plan’). The second – which exists in both draft and final form – is a security review report completed following the incident of 1 October 1998 (‘the report’). Much of the report’s contents has already been disclosed.[1] The dispute concerns particular portions of the report which were ordered to be provided to Mr Brazel.
[1]See [31] below.
The claims for PII were made in an affidavit of documents filed in the proceeding on behalf of the State. The affidavit was sworn by Roderick Wise, then Acting Deputy Commissioner of Corrections Victoria. Mr Wise described the plan as
a floor plan showing amongst other things the location of security windows, entrances, fire hydrants and staff viewing points. The [State] believes that it would be contrary to the public interest if those details were to be revealed to [Mr Brazel] as it would compromise the security of the Acacia unit, put at risk the safety of the employees of the [State] and undermine maintenance of good order within the prison, should information relating to security and layout of the Acacia unit become known, either to [Mr Brazel], other prisoners or to the public. [2]
In the same affidavit the report was said to –
describe in detail the operations and procedures in place in the Acacia unit as well as its structure, the vulnerabilities and potential vulnerabilities in security and monitoring systems within the Acacia unit. The [State] believes it could potentially compromise the security of the Acacia unit and the safety of other prisoners and the employees and agents of the [State] if this information was to be disclosed to [Mr Brazel], the wider prison population or to the public.[3]
[2]Affidavit of Roderick Wise sworn on 9 November 2006, [5].
[3]Ibid [7].
In support of its claim for PII, the State filed an affidavit of Paul Delphine, the Deputy Commissioner, Prisons, Corrections Victoria. Mr Delphine has held that position since July 2003. He first joined the Victorian Prison Service in 1979. Of the plan, Mr Delphine said:
The floor plans of the Acacia Unit are restricted documents and are not, and should not be, publicly available. This is a matter of policy which is dictated by the nature of the facility and the types of prisoners housed within the Acacia Unit. In the schedule of documents served by [Mr Brazel], [Mr Brazel] seeks a copy of the floor plan of the Acacia Unit. It is likely that [Mr Brazel] is familiar with parts of the unit to which prisoners have access, or restricted access. However [Mr Brazel] does not know the layout of other areas to which prisoners would not normally have access. If [Mr Brazel] was to know the exact layout of the non-prisoner areas and the layout of cameras then he is likely to try to exploit that information should he, at any time, be moved back into the Acacia Unit.[4]
Of the report, Mr Delphine said that it identified –
vulnerabilities and possible deficiencies within the Acacia Unit and analyse[s] the capacity of the prison staff to monitor the activities of prisoners visually and through the use of alarm systems. This information, if it were known by [Mr Brazel], or the wider prison population would make the Acacia Unit less secure and would put at risk other prisoners, and the prison staff.
It is always the case that some security measures are obvious, and can be observed by the prisoners from time to time. Other aspects of the security arrangements in the prison are covert, and are actively kept from the prison population. The lack of certainty for prisoners as to whether their knowledge of prison operations and procedures is comprehensive forms a necessary part of the security arrangements within the prison. Being forced to detail the full extent of the security measures put in place or prison layout would threaten the security and good order of the prison as it could reveal to [Mr Brazel] weakness and possible means to exploit the system and security arrangements.[5]
[4]Affidavit of Paul Vincent Delphine sworn on 24 November 2006, [17].
[5]Ibid [18]-[19].
Before the Delphine affidavit was filed, Mr Brazel had already filed an outline of submissions in which he contested the basis of the PII claim. In the outline he asserted that:
·the documents, or similar documents, had previously been tendered as exhibits in proceedings brought against him and in proceedings brought by him against Corrections Victoria;
·the documents in issue related to the Acacia Unit ‘prior to its substantial renovation in early 2004, and the adding of additional security measures in 2005’, and hence their disclosure posed ‘no risk to security of the prison, or the safety of prisoners, staff members or visitors’;
·the floor plan of the Acacia Unit had been released to him in relation to a 1999 criminal trial, along with a video film record of the entire Acacia Unit;
·a memorandum dated 15 June 2001 from the then Chief Executive Officer (a copy of which was attached to the outline) referred to a map of the Acacia Unit being in the possession of another prisoner and stated that this ‘does not represent a threat to security.’
Mr Brazel responded to the Delphine affidavit with an affidavit in which he deposed to the circumstances of his 1999 trial in which the floor plan and video of the Acacia Unit had been provided to him, together with ‘the Unit Supervisor’s Diary, Visit Register, Employee Work Roster, IMP entries, PIMS entries and Corrections Reports written by Prison Staff on the alleged incident’.[6] The affidavit continued (with Mr Brazel referring to himself in the third person as ‘the Plaintiff’):
The Plaintiff, through his years spent incarcerated within the Acacia Unit, would be able to outline to the [judge], the security measures in place within the Acacia Unit, at the time of the said assault in 1998. The Plaintiff has had access to all areas of the Acacia Unit, including the Officers Control Post, and could for example inform His Honour, what areas the security cameras cover, and their blind spots, where the keys were kept, and what keys are used in each sub-unit of the Acacia Unit, where the buttons are located and which were used to disengage the motion alarm, when said alarms are activated, where and how the magnetic locking system can be disconnected, securing the gates leading into the Acacia Unit, and therefore allowing access. The nature of the vibration alarms and what points including the interior roof those alarms cover. Where the batons are stored, where the Portable Radios are stored and recharged. Where the safety equipment such as breathing apparatus are stored. The claim within the Delphine affidavit that there are areas within the Acacia Unit that the Plaintiff is not familiar with, or been able to view is a complete and absolute nonsense. And the Plaintiff respectfully submits that it is a deliberate attempt to mislead the Court by the said Mr Delphine. The Plaintiff has in fact been within every square inch of the Acacia Unit, including the Officers Control Post when employed as a clearer [sic] and set the task of vacuuming and generally cleaning said areas of the Acacia Unit.[7]
[6]Affidavit of Gregory John Brazel affirmed on 25 November 2006, [19].
[7]Ibid [23].
Before the judge in the County Court, the State filed no affidavit material disputing any of the matters deposed to by Mr Brazel. Nor does it appear that there was any attempt to cross-examine Mr Brazel or to challenge any of his assertions. This is rather surprising, given that the PII claim was likely to be seriously weakened if Mr Brazel’s assertions – as to prior publication and an absence of current sensitivity – were accepted.[8] As will appear, Mr Brazel reiterated most of these statements in an affidavit filed in connection with this appeal. Once again, they were not challenged.
[8]See [49] and [54] below.
The decision at first instance
In relation to the plan, the relevant part of his Honour’s ruling was in these terms:
100 … I accept that there is information within this document that in ordinary circumstances should not be known to prisoners. I refer in particular to the identification of physical features which have security functions, the location of which should not be known to prisoners. I am satisfied that the disclosure of this information could harm the governance of Acacia Unit, and Barwon Prison, and that for this reason, it is contrary to the public interest to require disclosure of the information contained in this document.
101 Conversely, as part of Mr Brazel’s case involves allegations of failure to supervise the part of the prison where Mr Brazel was, and where the prisoners who attacked him were, I am satisfied that the public interest in the administration of justice would be frustrated if this document was withheld from Mr Brazel. There is likely to be information in the schematic diagram which is relevant to the ability of prison officers to observe activity within Acacia Unit. In my view the use or potential use of the information in the schematic diagram goes to the issues at the heart of Mr Brazel’s case on liability.
102 Thus, I consider that both limbs of public interest arise, and are in conflict in the manner discussed by Lord Reid [in Conway v Rimmer[9]]. I must decide which aspect of the public interest predominates; that is, whether the nature of the harm that would or might follow to the State or the public service is so great that no other public or private interest should prevail over it.
103 I consider that the public interest in the administration of justice should prevail as to the schematic diagram. Of course, that would permit Mr Brazel and his legal advisors to become aware of security features of Acacia Unit which would not otherwise be known to a prisoner or his legal advisors.
104 I will therefore direct production of the schematic diagram, but will restrict and regulate its circulation and copying of it.
[9][1968] AC 910, 940.
As noted earlier, specific parts of the report remained the subject of the claim of PII, as to which his Honour said:
113 Maintaining good order, and providing proper security and protection for prisoners and prison staff in a custodial institution is such that disclosure of certain information may damage the proper conduct of the prison. [Senior Counsel for the State] argues that disclosure of those portions of the report over which the claim of immunity persists would expose vulnerabilities and potential vulnerabilities in security and monitoring systems. I accept that a claim for public interest immunity is established.
114 As part of his case, Mr Brazel alleges failures to supervise him and the other prisoners. What means were available for prison officers to oversee Mr Brazel and the prisoners who attacked him is relevant to these issues. If there were shortcomings in the monitoring and security systems, what those defects were, and for how long they were, or could have been known to be defective, or potentially so, what may have been required to improve these systems, and when such improvements were made (if made) might be relevant to these issues.
115 Although much of the document is now available to Mr Brazel and his advisers, the State of Victoria persists in the claim for public interest immunity for the remaining portions. To the extent that the claim relates to the identification of persons involved in the review, or interviewed about the incident and related matters, apart from Mr Brazel and those prisoners involved in the attack on him, I accept that there is sound basis for the claim for immunity.
116 I do not consider that there is any good reason associated with the administration of justice to compel identification of such persons.
Having read the complete report, his Honour then determined that certain of the hitherto undisclosed portions should be disclosed to Mr Brazel and his legal advisers. He said:
7 … In each case, I have reached this conclusion after balancing the considerations of public interest immunity and the public interest in the administration of justice. Whilst I accept that public interest immunity arises for each portion of the Review Report that has been [blacked out], I consider that the matters set out in those portions are relevant, directly, to the issues of liability to be determined at the trial of this proceeding. Further, I consider that without access to those portions of the Review Report, relevant material on these issues would not otherwise be available to the Court, and more importantly, to Mr Brazel and his lawyers. To deny access to these parts of the Review Report would, in my opinion be inimical to the public interest in the administration of justice.
8 That follows because much of what is presently blacked out in the Review Report deals with subjects that are very much at the heart of the disputed issue of liability. To deny access to this material would be to inhibit, unfairly as between the parties, the ability of Mr Brazel and his legal and expert advisers to evaluate and prepare to litigate this issue.
9 Of course, there are parts of the Review Report, as well as of the Schematic Diagram that are sensitive, and that go to security of the governance of the prison, and to the welfare of other prisoners and prison staff. Bearing those important considerations in mind, I consider that the competing interests can be balanced by permitting access to Mr Brazel and his legal and expert advisers in a regulated way.
His Honour then gave detailed directions governing access to the documents. He ordered that Mr Brazel’s counsel and solicitors, and any expert retained on his behalf on the issue of liability, should have copies of the complete plan and of the modified report, such copies to be returned to the State at the conclusion of the proceeding. Each person having access to the documents would have to complete a confidentiality undertaking. His Honour further directed that –
Mr Brazel must be shown the complete diagram and … the modified Review Report at such times as he is asked to provide instructions on liability, or asked to consider any advice, whether from his lawyers or any expert, on the issue of liability, but is not to be provided with or retain a copy of either the complete diagram or the modified Review Report. If this is not done, I do not believe that Mr Brazel can properly provide instructions, or receive and evaluate for himself any advice he is given on the issue of liability.
Subsequent affidavits
Following his Honour’s rulings, the State filed a further affidavit of Mr Wise in support of its application for leave to appeal. In relevant part, that affidavit stated:
4 [Mr Brazel’s] sentence is due to expire in 2023, which is still a very long sentence. Over his term of imprisonment, [Mr Brazel] has been highly unpredictable, and has proven to be difficult to manage as evidenced by his continued placement in a high or maximum security unit of a maximum security prison for the vast majority of his term of imprisonment.
5 The Acacia Unit of Barwon Prison is the Unit where the most high security prisoners of the State are held. These high security prisoners are most likely to be a risk to the community should they escape. While some of the Unit’s security systems have been changed since the time of the incident which is the subject of these proceedings, much of the security remains the same. There are considerable limitations in how much security can be changed due to the physical constraints of the Unit’s building without considerable expense and re-building.
6 Presently, [Mr Brazel] and other prisoners in Barwon Prison may speculate as to the security systems in Acacia Unit, but they can neither confirm nor disprove what security is in place. Release of the schematic diagram of Acacia Unit and the Review Report and draft Report … would reveal what security was present and largely continues to be present.
7 Although the judgment … is that [Mr Brazel] should only be permitted to see (other than retain copies of) the schematic diagram and the Reports, the knowledge of the security system will still be acquired by [Mr Brazel] once he reads the documents. [Mr Brazel] having this knowledge would jeopardise and compromise the integrity of the Unit.
8 While [Mr Brazel] is not presently accommodated at Acacia Unit, he may be placed there in the future. Also [Mr Brazel] may tell other prisoners at Barwon Prison of the security arrangements in Acacia Unit if he has access to the documents, which would again jeopardise and compromise the integrity of the Unit.[10]
[10]Affidavit of Roderick John Wise sworn on 20 June 2007 (emphasis added).
Mr Brazel responded with an affidavit of his own, stating that it was his strong wish not to return to the Acacia Unit. He repeated – and elaborated – his November 2006 statement[11] that in 1999, in connection with charges brought against him for assault of a prison officer, the Crown had produced to him –
the Review Report of that incident (complete and unmasked) together with other materials such as the Acacia Map, Acacia Unit Visit Register, the Acacia Unit Chief Diary for 1998, all internal ‘Incident Reports’ written by Prison Officers in relation to the alleged assault, the Barwon Prison Employee Roster for the day of the alleged assault and a video tape of the entire Acacia Unit.[12]
According to the affidavit, Mr Brazel was granted leave by the judge in the criminal trial to have a viewing of the Acacia Unit. In the event, it was ordered instead that a video be made of the Unit, which included footage of the officer viewing area which (Mr Brazel says) was and remains an area to which prisoners do not have access. He says that that video tape remained in his possession in the Acacia Unit until May 2006, when it was lost together with other property belonging to him.
[11]See [7] above.
[12]Affidavit of Gregory John Brazel sworn on 2 July 2007, [8].
Mr Brazel again exhibited a copy of the memorandum dated 15 June 2001, from the then Chief Executive to the Commissioner for Corrections, stating that the fact of a map of the Acacia Unit being in the possession of another prisoner did not represent ‘a threat to security’. The Brazel affidavit continued:
I am aware that the Acacia Unit underwent major rebuilding and renovation in 2004 and that additional security measures were introduced in 2005. I am not aware of the detail of those additional security measures and will not become aware of them as a result of being shown any document which is to be produced as a result of the orders of his Honour Judge Wodak made 6 June 2007. I believe that the Acacia Unit as it presently exists is substantially different to the Unit which existed at the time I was assaulted and I cannot see how the plans of the old unit could now be a security concern.[13]
[13]Ibid [19].
As before, none of the matters asserted by Mr Brazel in this affidavit was disputed by counsel for the State. No attempt was made by the State to file any affidavit in reply, or to specify (whether by confidential affidavit or otherwise) those aspects of the 1998 security arrangements, as depicted in the disputed documents, which remained current and security-sensitive. (The High Court recently confirmed the ability of a court, when asked to rule on a claim for PII, to decide the claim without one of the parties being shown all of the material relied on to support the claim).[14] When asked by the Court how these matters were to be determined, senior counsel for the State submitted that the affidavit material already filed by the State was sufficient for the purpose.
[14]Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4, [180] (Crennan J).
The public interest claim
As we have seen, the judge accepted that disclosure of the information would be contrary to the public interest. At the same time, he considered that non-disclosure of the information would frustrate the public interest in the administration of justice. Having come to those conclusions, his Honour recognised that he was bound to embark on a balancing exercise to ‘decide which aspect of the public interest predominates’.[15]
[15]See Sankey v Whitlam (1978) 142 CLR 1, 38-9 (Gibbs ACJ), 58, 63-4 (Stephen J), 95-6 (Mason J); Jarvie v The Magistrates’ Court of Victoria Brunswick [1995] 1 VR 84, 88 (Brooking J).
It is the outcome of that balancing process which the State now challenges and which Mr Brazel seeks to uphold. Although no notice of contention was filed, counsel for Mr Brazel submitted – without objection by the State – that the order for disclosure should be upheld on the ground that – contrary to the judge’s view – the State had failed to make good a case for non-disclosure. We turn therefore to examine the nature of the immunity claim made.
It would appear that there is no recognised category of PII defined in terms of the maintenance of security and safety within prisons. Indeed, there is surprisingly little authority on the question.[16] In Nash and Brazel v Review and Assessment Committee,[17] the Director-General of Corrections claimed PII in respect of the files of prison classification committees, on the grounds that their disclosure would be contrary to the public interest
as they disclose matters fundamental to the maintenance of good order and discipline in as well as the security of the prison system in the State of Victoria.
JH Phillips J accepted that the categories of public interest were not closed, but rejected a class claim to immunity in respect of all of the documents on the files. His Honour did, however, uphold a contents claim in respect of certain particular documents, holding that ‘the public interest requires that they be withheld’. There was no elaboration of this conclusion. An appeal to the Full Court was allowed on other grounds.
[16]In State of Victoria v Nine Network [2007] VSC 431, Osborn J considered similar issues in connection with a confidentiality claim by the State regarding documents of Corrections Victoria.
[17](Unreported, Supreme Court of Victoria, J H Phillips J, 14 May 1986).
In Nicopoulos v Commissioner for Corrective Services,[18] Smart AJ upheld a claim for PII in respect of ‘intelligence information’ said to justify a decision of the respondent Commissioner to bar Mr Nicopoulos, a solicitor practising in criminal law, from attending any correctional centre in New South Wales. His Honour said:
It would be against the public interest in the ongoing detection of crime and the maintenance of security and order in the prisons for operational systems of the Commissioner to be revealed. The intelligence information is important and bears upon the good order and security of the State’s prisons and the detection and prevention of crime.[19]
(We note that the first Delphine affidavit expressed the view that it would be contrary to the public interest to release to prisoners ‘documents that relate to confidential prison intelligence gathering procedures, strategies and sources and the prison intelligence gathered.’[20] That aspect of the PII claim is no longer pursued.)
[18](2004) 148 A Crim R 74.
[19]Ibid 94 [96].
[20]Affidavit of Paul Vincent Delphine sworn on 24 November 2006, [16].
Senior counsel for the State also relied on what was said by the New South Wales Court of Criminal Appeal in Attorney-General for New South Wales v Stuart.[21] That case concerned a claim of PII to prevent the disclosure of the identity of a person as a police informer. This is, of course, a long-established category of immunity.[22] The rationale for this head of immunity, according to Hunt CJ, (with whom Stoddert J agreed), is that
if the identity of the informer were liable to be disclosed in a court of law, sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime.[23]
His Honour continued:
This particular public interest in protecting the identity of police informers appears to be part of a broader public interest, the maintenance of social peace and order, as it is described in D v National Society for the Prevention of Cruelty to Children.[24] As another part of that broader public interest, it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing inquiries to those who organise criminal activities … or which may impede or frustrate the police in that pursuit …; or which may reveal matters to the prejudice of future police activities. Its rationale is that, if such information were disclosed prior to charges being laid (so that criminals would know what information the police have about them), they will be able to tailor their stories to facts which cannot be disputed, to organise their responses to questions and to arrange alibis. Harm may come or be threatened to prospective witnesses before being interviewed by the police, particularly in relation to inquiries about crimes of violence.[25]
[21](1994) 34 NSWLR 667.
[22]See, for example, Sankey v Whitlam (1978) 142 CLR 1, 61-2, 65-6 (Stephen J).
[23]Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, 674-5.
[24][1978] AC 171, 231 (Lord Simon).
[25]Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, 675 (other references omitted).
The submission for the State was that the maintenance of the security of, and safety within, prisons should be seen as part of the ‘broader public interest’ in the maintenance of social peace and order identified by Lord Simon in D v NSPCC.[26] It was contended that the PII claim in the present case should thus be seen as invoking an already-established category of PII, described as ‘the public order head’ of PII, covering documents ‘the release of which may endanger public peace, order and safety.’[27] The Court pointed out that a category of PII so broadly defined would render immune from disclosure information about, for example, strategies adopted by police for dealing with an anticipated violent demonstration (in respect of which an innocent bystander was subsequently injured, and sued the State for damages). Senior counsel for the State responded that information of that kind would not attract immunity because it did not have ‘the same close connection’ with existing categories of public interest as did the information in dispute here.
[26][1978] AC 171, 231 (Lord Simon).
[27]The Court had sought submissions on the question whether the PII claim was founded on an existing or, alternatively, a novel PII category.
It cannot be doubted that there is a powerful public interest in the maintenance by the State of a secure prison system for the benefit of all concerned. Such a system is essential to vindicate the operation of the criminal justice system, providing as it does for the imprisonment of those convicted of serious offences. There is, likewise, a strong public interest in ensuring the safety of those who are imprisoned, and of those who work, in our prisons. The first is an expression of one of the State’s basic obligations; the second is the necessary corollary of the State’s dual role as jailer and employer.
But, as Spigelman CJ said in R v Young:
… [I]t is not correct to treat public interest immunity as if it were a “residual category” of circumstances in which courts limit access to information on the basis of weighing the public interest in disclosure against any factor that can be described as a “public interest”.[28]
For the reasons given by Maxwell P in Royal Women’s Hospital v Medical Practitioners Board of Victoria,[29] the limits of PII must continue to be very strictly drawn. The immunity should be given no greater scope than is demonstrably necessary. The State acknowledged as much in its submissions.
[28](1999) 46 NSWLR 681, 693.
[29](2006) 15 VR 22, 32.
It is one thing to acknowledge that the proper functioning of a government agency is in the public interest. The same might be said – uncontroversially – about any government department or agency. It is quite another thing to accept that particular information in the possession of a government agency is of such sensitivity, and its disclosure would therefore cause such injury to the public interest, that information of that type should be treated as capable of attracting PII. Unless that threshold is passed, no question of balancing arises.[30]
[30]Ibid 32 [39] (Maxwell P).
We reject the State’s contention that there already exists a ‘public order’ category of PII, defined in terms of ‘endangering public peace, order and safety’. As counsel for Mr Brazel submitted, the case law simply does not support the contention. Nor would a category of immunity so broadly defined have any prospect of satisfying the test of demonstrable necessity.
For the purposes of this appeal, we accept that a narrow claim of PII could properly be maintained with respect to specific prison security information which was shown to be both current and highly sensitive. The task for the State was to demonstrate that the information in issue here was of that character. For reasons which follow, the State has failed to do so. It is unnecessary, therefore, to consider further how the putative PII category might be defined.
The balancing exercise
As has been seen, the disclosure of the plan was said by Mr Wise to be contrary to the public interest because it would –
·compromise the security of the Acacia Unit;
·put at risk the safety of State employees; and
·undermine the maintenance of good order within the prison.[31]
The concern identified by Mr Delphine was that, if Mr Brazel were to learn the layout of the ‘non-prisoner areas’ and the location of security cameras, he was ‘likely to try to exploit that information should he, at any time, be moved back into the Acacia Unit.’[32] (As noted earlier, Mr Brazel’s unchallenged affidavit evidence was that he already had this knowledge).
[31]See [4] above.
[32]See [5] above.
The trial judge concluded that disclosure of the plan ‘could harm the governance of Acacia Unit and the Barwon Prison’, and was therefore contrary to the public interest. (This description of the relevant public interest was considerably broader than that asserted in the State’s affidavits. On the appeal, senior counsel for the State confirmed that the claim was based on potential prejudice to prison security, not on prison governance more broadly.) The judge concluded, however, that the use or potential use of the information in the plan ‘goes to the issues at the heart of Mr Brazel’s case on liability’, and that the public interest in the administration of justice should therefore prevail.
In relation to the report, the view expressed by Mr Wise was that its release would compromise –
·the security of the Acacia Unit;
·the safety of other prisoners; and
·the safety of the State’s employees and agents.[33]
Mr Delphine’s view was that disclosure of the report would ‘threaten the security and good order of the prison.’[34]
[33]See [4] above.
[34]See [5] above.
Both the Wise and Delphine affidavits are expressed in quite general terms, as if release of any part of the report would be detrimental to prison security. This is puzzling since, as Mr Delphine’s affidavit itself disclosed, Mr Brazel had by November 2006 received an edited version of the report (EV1) in response to a request under the Freedom of Information Act1982.[35] The full report is 30 pages long. In version EV1, Mr Brazel was given 18 pages of text, in whole or part. By the time the matter came on for hearing, the scope of the dispute had narrowed a good deal further. A second edited version (EV2) had by then been provided to Mr Brazel’s legal advisors, in which previously undisclosed portions of the report – amounting in total to an additional 4-5 pages – were disclosed.
[35]Affidavit of Paul Vincent Delphine sworn on 24 November 2006, [23].
The trial judge accepted that the PII claim was established with respect to the undisclosed portions of the report, on the basis that there was a public interest in ‘maintaining good order, and providing proper security and protection for prisoners and prison staff in a custodial institution’. His Honour appears to have accepted the State’s argument that
a disclosure of those portions of the report over which the claim of immunity persists would expose vulnerabilities and potential vulnerabilities in security and monitoring systems.
Once again, however, the decision to reject the PII claim in respect of certain of the undisclosed portions of the report reflected his Honour’s conclusion that the public interest in the administration of justice should prevail. This was because
much of what is presently blacked out in the report deals with subjects that are very much at the heart of the disputed issue of liability. To deny access to this material would be to inhibit, unfairly as between the parties, the ability of Mr Brazel and his legal and expert advisers to evaluate and prepare to litigate this issue. [36]
His Honour ordered that 21 specified portions of the report be released.[37] The State’s appeal initially covered all of these portions, but the appeal with respect to five of the 21 portions was subsequently abandoned.
[36]Reasons, [8].
[37]Ibid [10].
The essential complaint made on this appeal is that the judge did not properly weigh the competing public interests. The State submitted that the judge had failed to give any real weight to the public interest in the maintenance of prison security and had given undue weight to the importance of the information to Mr Brazel in the litigation. According to the written submission –
[H]is Honour did not bring into balance in any real way the consequences of providing the disputed documents to [Mr Brazel] on the terms that he imposed. His Honour did not consider why the danger to public security posed by the release of the documents should be outweighed by the rights of [Mr Brazel] in civil litigation.
The State also objected to the grant of access to Mr Brazel himself (as distinct from his lawyers and any expert witnesses).
Counsel for Mr Brazel argued that the reasons for judgment showed clearly that his Honour had carried out the requisite balancing exercise and was correct to grant access to the information.
The public interest in the administration of justice in permitting [Mr Brazel] to have access to disputed documents, being documents of such central relevance to [Mr Brazel’s] case on liability, is very strong. In such circumstances, the competing interest of the public in denying [Mr Brazel] access to the disputed documents would have to be very strong indeed to outweigh the public interest in the administration of justice served by permitting [Mr Brazel] to have access to the documents.
[Mr Brazel] submits that the potential harm to the governance of the Acacia Unit, or the Barwon prison generally, arising from the disclosure of the disputed documents to [Mr Brazel] does not constitute a public interest that is so overwhelmingly strong that it should have prevailed in the balancing exercise.
Before considering whether error has been shown, it is necessary to address the competing arguments which were advanced concerning the nature of this appeal.
The nature of an appeal concerning a claim for PII
Counsel for Mr Brazel submitted that the judge’s decision to disallow the PII claim was an exercise of discretion, so that the decision could only be interfered with on appeal if error of the kind identified in House v R were shown.[38] The decision was said to be discretionary -
in the sense that once a court determines that documents fall within one of the categories of public interest immunity, the court may or may not order that those documents be produced by the party taking objection for inspection by the opposing party. In order to decide whether to order production of the documents, the court must carry out a balancing exercise between two conflicting aspects of the public interest …
Reliance was placed, by analogy, on the decision of this Court in Mobil Oil Australia Ltd v Guina Developments Pty Ltd.[39] In that case objection had been taken on the grounds of commercial confidentiality to the production of certain discovered documents. The unanimous view of the Court was that the decision to permit inspection of the disputed documents involved the exercise of a judicial discretion, attracting on appeal the principles laid down in House v R.[40]
[38](1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ).
[39][1996] 2 VR 34.
[40]Ibid 41 (Hayne JA with whom Winneke P and Phillips PA agreed).
The State argued that the judge’s decision was not to be characterised as a discretionary judgment. The appeal court must decide for itself whether PII does or does not attach to the relevant information.
In our view, a decision to uphold, or reject, a claim of PII is not an exercise of discretion. Although the task of balancing competing public interests might at first appear to have characteristics in common with a discretionary judgment,[41] we think that the determination of the immunity question is of a different character. There is, in our view, a direct parallel with the decision as to whether a particular document is immune from production on the ground of legal professional privilege. That is a question of substantive law about ‘an important common law immunity’.[42] On appeal, the question is whether the decision was erroneous, not whether it fell within the ‘limits of a sound discretionary judgment’. [43]
[41]See, for example, Norbis v Norbis (1986) 161 CLR 513, 518 (Mason and Deane JJ).
[42]Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 552-3 [9], [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[43]The same is true, for example, of decisions about admissibility of propensity evidence under s 398A of the Crimes Act 1958: R v Tektonopoulos [1999] 2 VR 412, 419 (Winneke P).
This conclusion accords with what happens in practice. Appellate courts have consistently decided PII appeals on their merits. The members of the appellate court – conducting a conventional appeal by way of rehearing – have carried out the balancing exercise for themselves, and for that purpose have inspected the documents in issue.[44]
[44]See Conway v Rimmer [1968] AC 910, 954 (Lord Reid); Sankey v Whitlam (1978) 142 CLR 1; Alister v The Queen (1984) 154 CLR 404.
It was contended for Mr Brazel that the approach of the Full Federal Court in Commonwealth v Northern Land Council[45] was different. We disagree. In that case, a single judge had ordered that the Commonwealth produce (for inspection by the legal representatives of the plaintiff Council) documents recording Cabinet deliberations. Without inspecting the documents himself, the judge expressed the view that the information was likely to assist the Council’s case and that the public interest in favour of granting inspection clearly outweighed the public interest in denying inspection. The Full Court of the Federal Court dismissed an appeal from the order.
[45](1991) 30 FCR 1.
The Full Court did not treat the decision of the single judge as discretionary in character, except in one respect. The Full Court considered on its merits, and rejected, the Commonwealth’s submission that the Cabinet notebooks in question constituted a class of documents which, regardless of any assessment of competing interests, was to be treated as immune from disclosure in judicial proceedings.[46] After describing the balancing which must be undertaken of the competing aspects of the public interest,[47] the Court turned to consider the question of inspection by the judge – in order to assess whether the immunity claim should be upheld – and then the question whether –
the most appropriate course is to allow confidential inspection by the legal advisers to the parties who may, then properly informed, assist the court upon the question whether a general disclosure is necessary. That is a matter of evaluation and discretion which is peculiarly the role of the judge entrusted with the management of the case. The decision of the judge is not to be interfered with on appeal unless some error of principle can be demonstrated either explicitly or by implication from the way in which the discretion has been exercised in the case in question.[48]
Their Honours continued:
By the order under appeal his Honour did no more than to procure the assistance of the legal advisers to the parties on a confidential basis to enable him to make a fully informed decision on the question of any wider disclosure of the documents in issue. For these reasons it must be concluded that the learned primary judge did not err in exercising his discretion and that the appeal must be dismissed with costs.[49]
[46](1991) 30 FCR 1, 31.
[47]Ibid 38.
[48]Ibid 39 (emphasis added).
[49]Ibid.
Thus, the only decision which the Full Court characterised as discretionary was the decision by the judge, following his conclusion that the claim for immunity failed, to permit confidential inspection by the legal representatives for the party seeking access to the document, in order to determine whether any wider disclosure was justified. The High Court upheld the Commonwealth’s appeal,[50] but there is nothing in the joint judgment in the High Court to suggest that the appeal was treated as an appeal from an exercise of discretion. On the contrary, the High Court approached the question of immunity on the basis that it was for the court itself to decide whether the immunity attached.
[50]Commonwealth v Northern Land Council (1995) 176 CLR 604.
It is clear, in our view, that the question whether PII attaches is a question of substantive law, appellable (subject to a grant of leave in interlocutory proceeding) on its merits. The mechanical question of how access is to be granted, which only arises once the claim for immunity has been rejected, might well be thought to be discretionary in character. But, since the assessment of the harm likely to follow from disclosure will often involve – necessarily – a consideration of the terms on which inspection might be permitted,[51] it is probably artificial to treat the inspection question as separate from the balancing exercise.
[51]See also Sankey v Whitlam (1978) 142 CLR 1, 98-9 (Mason J).
Before the trial judge, so counsel informed us, the State advanced both a class claim and a contents claim for PII. This classification of PII claims has been described as ‘rough but accepted’.[52] As the High Court said in Commonwealth v Northern Land Council, the classification –
serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents.[53]
Since Sankey v Whitlam, however, it has been accepted that, even where documents fall within a class of documents ‘in respect of which there are strong considerations of public policy militating against disclosure regardless of their contents’, the immunity from disclosure is not absolute.
The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to the court of access to relevant and otherwise admissible evidence.[54]
[52]Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1111 (Lord Wilberforce).
[53](1992) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).
[54]Ibid.
Thus, even where a class claim is made, inspection of the particular documents may be necessary and the content of the document may have a bearing on the decision as to whether immunity attaches or not.[55] In the present case, the judge approached the PII claim as a contents claim, evidently finding it unnecessary to decide whether a class claim could be made out.
[55]Ibid 617.
No error
We have inspected the documents for ourselves. In our view, the judge’s decision to reject the PII claim was clearly correct. As will appear, we have concluded that the PII claim failed at the threshold, that is, no case for secrecy was made out. On this view, the learned judge’s conclusions were, with respect, unduly favourable to the State. Our reasons are as follows.
Axiomatically, the decision on any PII claim depends upon the circumstances in which the claim is made. Everything turns on the character of the particular information in issue and the nature of the particular litigation (or administrative investigation) in which the occasion for disclosure of the information arises. Before embarking on the balancing exercise, the Court must assess the strength of the arguments for non-disclosure and disclosure respectively. The Court must scrutinise carefully what is said to be the potential damage to the public interest if the information is disclosed and, equally, what is said to be the significance of the information in the litigation.
Gibbs CJ elucidated the process in Alister v The Queen,[56] as follows:
… [T]he court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process – the balancing exercise – can only be taken when it appears that both aspects of the public interest do require consideration – ie., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.
[56](1984) 154 CLR 404, 412.
As to the damage which may result from disclosure, it is necessary to consider whether the content of the document is ‘current and controversial’.[57] Obviously, if the information is out-of-date, the risk of injury to the public interest is likely to be much reduced, if not non-existent. The need for secrecy may be short-lived or long-lasting. Everything depends on the subject-matter and content of the information in question.[58]
[57]Sankey v Whitlam (1978) 142 CLR 1, 97, 98, 99-100 (Mason J); Commonwealth v Northern Land Council (1995) 176 CLR 604, 617 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).
[58]Sankey v Whitlam (1978) 142 CLR 1, 41-2 (Gibbs ACJ).
Both documents – the plan and the report – came into existence before the end of 1998. As at the date of the appeal hearing, therefore, they were approximately nine years old. That they are old documents would not, of course, matter had it been shown that the information was still current, that is, that the plan accurately described the Acacia Unit as it is today and that such security deficiencies as the report records as having existed in October 1998 were still in existence. But the evidence filed by the State did not begin to approach that degree of specificity. All that was said on this subject was contained in Mr Wise’s further affidavit:[59]
While some of the Unit’s security systems have been changed since the time of the incident … much of the security remains the same.
…
Release of the [plan] and the [report] … would reveal what security was present and largely continues to be present.
[59]Affidavit of Roderick John Wise sworn on 20 June 2007, [5]-[6].
It will be recalled that Mr Brazel’s affidavit in response[60] asserted that the Acacia Unit –
underwent major rebuilding and renovation in 2004 and that additional security measures were introduced in 2005. … I believe that the Acacia Unit as it presently exists is substantially different to the Unit which existed at the time I was assaulted …
That affidavit was sworn on 2 July 2007. Its contents were not disputed by senior counsel for the State on the hearing of the appeal.
[60]Affidavit of Gregory John Brazel sworn on 2 July 2007, [19].
In those circumstances, we are unable to be satisfied that any part of the plan or any of the relevant parts of the report has current security sensitivity. That conclusion is strengthened by the absence of any challenge to Mr Brazel’s evidence that:
·in 1999 he was given a complete version of the report and the plan;
·between 1999 and 2006 he was in possession of a video of the Acacia Unit, including footage of the officer viewing area; and
·during his time as a prisoner in Acacia Unit, he had access to all areas of the Acacia Unit and was well aware of all aspects of the security systems (cameras, keys, locks, alarms and so on).
These matters are relevant for two reasons. The first is that the State has articulated its PII claim by reference to the harm which it is said would be done to the public interest if Mr Brazel had access to this information. As noted earlier, the State’s concern is that Mr Brazel may ‘exploit’ the information himself, and pass it on to others. On the unchallenged evidence, Mr Brazel has already had all of the relevant information and has long since had opportunities to exploit it and pass it on, if he were so minded. Moreover, his own ability to exploit the information is now almost non-existent, given that he is not in the Acacia Unit and has no wish to return there, and there is no present plan to place him there.
Secondly, and of more general importance, it has long been accepted that prior publication is a very significant obstacle to the upholding of a PII claim. It is not surprising that this should be so. Lord Blanesburgh said as long ago as 1931, ‘The privilege, the reason for it being what it is, can hardly be asserted in relation to documents the contents of which have already been published.’[61] To confer immunity on documents sought by a person who has long since been in possession of the information which they contain would be to achieve ‘a result … little short of being ridiculous’.[62] Nor would it have mattered if Mr Brazel had obtained the information by unauthorised means. (It has not been suggested that he did). As Stephen J said in Sankeyv Whitlam, ‘It is the fact of prior publicity that is material, not the particular medium by which publicity has been obtained.’[63]
[61]Robinson v South Australia(No 2) [1931] AC 704, 718.
[62]Sankeyv Whitlam (1978) 142 CLR 1, 65 (Stephen J), citing Conway v Rimmer [1968] AC 910, 950 (Lord Reid).
[63]Ibid 70; see also 45-6 (Gibbs ACJ).
But there is an even more fundamental difficulty with the immunity claim, at least so far as it concerns the report. Quite simply, most of the report’s contents – including portions which are the subject of this appeal – could never have attracted PII on the basis claimed by the State. The information in question is not concerned with, and reveals nothing about, security systems in the Acacia Unit, nor could its disclosure have ever given rise to any risk to other prisoners or prison staff.
By way of illustration, substantial parts of the report describe, in matter-of-fact terms, what occurred before, during and after the assault on Mr Brazel. When version EV1 (released under FOI) was given to Mr Brazel, these sections were disclosed in part. By the time of the Court hearing, substantial further portions had been disclosed to Mr Brazel (in version EV2). The following was one such portion, which appears in the report under the heading ‘Response to the Incident’:
Immediately on advising other staff of the incident PO ____ who was the Gate Officer on the day, proceeded to unlock the unit entry gates in order to allow responding staff access to the unit. He then handed his keys to Supervisor ____ , collected a baton and entered Unit Two with SPO ____ and PO ____ . On entering the Day Room PO ___ observed five prisoners who seemed to be agitated and milling around. One prisoner said, “What’s going on” to which SPO ____ replied, “You are all going to be locked away”. SPO ____ assisted in the securing of prisoners and also observed Brazel in the exercise yard covered in blood. The prisoners were secured in their cells without further incident. PO _____ then opened the gate to Yard Four and observed Brazel staggering towards the hand basin at the rear of the yard. Brazel commenced to wash himself at the basin for a short period and then walked towards PO ____ and said, “I want to go to my cell, Lock me away”. Whilst in the Yard PO ______ observed several items as follows:
·Electric Sandwich maker
·Metal tube from a vacuum cleaner
·The seat section from the exercise bike in the yard
Whilst the area and prisoners were being secured, Supervisor ____ had called for medical assistance and briefed Health Service Officer ____ on his arrival in the unit. Nurse ____ Pacific Shores Health Service was also briefed on arrival in the Unit. Supervisor ____ continued to manage access to the unit area whilst Operations Manager _____ took control of the crime scene.
A log of events at the scene records Medical staff initially attending to Brazel at 1503 hours and again at 1510 hours.
SESG members responded to the duress alarm and their response time to the incident was two and one half minutes.
We are at a loss to understand how it could ever have been thought that a court would uphold an immunity claim on the ground that the disclosure of this information would be damaging to the public interest in prison security and safety.
Another part of the report, originally withheld but disclosed before the hearing (in version EV2), sets out ‘an analysis of entries in the Search and Inspection Register for the period 24 August 1998 to 1 October 1998’. The first five entries will serve to illustrate the anodyne nature of the information:
·On 24 August the damage to the window in Day Room Two is noted
·On 29 August Unit exercise equipment removed from ____ cell
·On 29 August Dayroom cookware removed from _____ cell
·On 4 September damage to a cell shower tidy and mirror is noted
·On 6 September a broken chair in Yard 1-2.
On no reasonable basis could it be suggested that disclosure of these entries could harm the public interest. Other portions excluded from version EV1 (names and comments of participants excluded) but included in version EV2 dealt with the ‘Incident debriefing’ held on 7 October 1998 (names excluded) and the ‘Incident re-enactment’ held on 9 October 1998 (released in part in EV2). Further reference is made to these sections below.
It is also instructive to examine the five portions of the report which the judge ordered be disclosed, over the State’s objection, but in respect of which the State has now abandoned its appeal. Of these, the most striking is a section of the report entitled ‘The Suspects’, extending to two and a half pages.[64] As the heading suggests, this part of the report identifies the five prisoners who were suspected of having participated in the assault on Mr Brazel. In relation to each suspect, the report describes the sentence he was serving and lists the ‘incidents’ recorded against him during his time in prison.
[64]The relevant portions were identified as items 9, 10 and 11 in his Honour’s order for disclosure.
This information had no sensitivity of any relevant kind. Its disclosure could not conceivably have affected prison security or the safety of officers or prisoners. It was purely factual material, and years out of date. By the time the present litigation began, the five ‘suspects’ had stood trial in the County Court on charges of intentionally causing serious injury to Mr Brazel.[65] We assume, moreover, that much of what the report recorded about their misbehaviour in jail would have been well known to Mr Brazel. But even if it was not known to him, the PII claim was always untenable.
[65]See R v Johnson, Sonnet and Paisley [2001] VSCA 242.
We turn to consider the portions of the report which the State on this appeal maintains should not be disclosed:
·Item 2: this is a two sentence paragraph, in the section of the report headed ‘Events Prior to the Incident’. That section has otherwise been disclosed in its entirety (excluding names). Remarkably, the second of the two sentences was disclosed to Mr Brazel in version EV1, provided under FOI.[66] It is hardly surprising that this should have occurred, given that the sentence records a statement made by Mr Brazel, that –
[66]Exhibit “PVD 5” to the affidavit of Paul Vincent Delphine sworn on 24 November 2006.
he did nothing to incite the situation and was surprised when the prisoners commenced to assault the window.
What is surprising is that the State should have maintained the immunity claim with respect to this sentence, notwithstanding its earlier disclosure.
The first sentence (which has not previously been disclosed) begins:
Anecdotal evidence, from prisoner sources, suggests …
What follows is a suggestion as to how Mr Brazel himself might have contributed to the incident. No claim for PII should ever have been made with respect to that sentence. It has nothing whatsoever to do with prison security or safety. The circumstances of the assault have been exhaustively ventilated, in public, in the criminal trials which followed.
·Item 3: this is a section, covering almost an entire page, in the part of the report entitled ‘The Incident’. The disputed portion falls into three sections, each beginning with the following (or similar) words:
Anecdotal evidence, from prisoner sources, suggests …
What follows are, respectively: a possible chronology of events for the incident; comments as to how long the ‘assault on the window’ lasted, including a statement said to have been made by Mr Brazel himself; and suggestions as to whether or not the assault was pre-planned. There is nothing in the content of this section which could support a claim for PII. The claim should never have been made.
·Item 4: this is a four line section, also in the part of the report headed ‘The Incident’. It contains some general statements about alarm systems within the Acacia Unit. Even assuming – which seems most improbable - that the information is still accurate more than nine years later, its disclosure could not conceivably harm prison security.
·Item 5: this is a full page section, also in the part of the report entitled ‘The Incident’. It sets out the results of what is described as an ‘analysis of the alarm activation records for 1 October 1998’. For the most part the content comprises a list of the precise times at which particular alarms were activated. Disclosure of this information could not conceivably harm prison security.
There is a brief reference to what is described as ‘a standard procedure’. Again, what is revealed is no more than any sensible person would assume would occur when an alarm was activated. The claim for PII is, and always was, untenable.
·Item 6: this is a four line section in the part of the report headed ‘Response to the Incident’. It deals in the most general way with the practice adopted in the Acacia Unit to allocate responsibility for supervising prisoners. There is no reference to the Brazel incident. The release of the information could not conceivably harm prison security, even assuming – which seems most improbable – that the practice identified is unchanged nine years later.
·Item 8: this is a five word phrase, constituting one dot point in a list of four, in a part of the report – ‘Ongoing Response’ – which has otherwise been disclosed in full. The following extract gives the context:
A series of reports and information have been called for regarding options for enhancement of issues that were immediately identified as a result of the incident.
Building Services Agency has provided preliminary advice regarding:
·External Perimeter Windows
·Internal Glazing Grills
·[Item 8]
·Upgrade of CCTV capability.
The missing dot point identifies a fourth topic with respect to which ‘preliminary advice’ has been received. The words give no indication of what the advice was. Once again, part of what the judge ordered be disclosed – and which the State wishes to withhold – had already been disclosed to Mr Brazel. He was given, in version EV2, the first and last words in the dot point: ‘Improved … Alarms’. That partial disclosure suggests that a specific decision was made to withhold the middle three words as having particular sensitivity, but that no (sufficient) sensitivity attached to justify refusing to disclose the fact that ‘preliminary’ advice had been received (nine years earlier) regarding ‘improved alarms’. The basis of the decision to withhold the remaining three words was not communicated to the Court at the hearing or on the appeal, and we are unable to see any basis for the claim that the three words attract PII.
Items 18 and 19 comprise two pages of a three-page attachment entitled ‘Debrief – Re-enactment of Acacia Incident on Thursday, 1 October 1998’ (released in part in EV2). In version EV2, the State disclosed to Mr Brazel a section of the report entitled ‘Incident Re-enactment’, which describes the re-enactment in these terms:
On 9 October 1998 a re-enactment was conducted to measure various factors in relation to the smashing of a window in a similar location to the one involved in the incident.
These factors included:
·The level of security afforded by the window;
·The timeframe for the window to be breached and entry to be gained to the exercise area;
·Noise levels within the Unit; and
·Alarm activation.
A debriefing was held immediately following this re-enactment.
The document of which items 18 and 19 form part is evidently the minutes of the debriefing meeting held after the re-enactment. Seventeen people are recorded as having been present. The minutes attribute brief comments (one or two lines) to individual observers. Apart from the concluding comment attributed to the General Manager, the document records no conclusion or consensus about what the re-enactment revealed about security issues, less still any recommendations about any changes which might be required. It is simply a list of disparate individual remarks, none by itself having any apparent security sensitivity.
This view is reinforced by the fact that in version EV2, the State provided to Mr Brazel – in full, though with names deleted – the part of the report entitled ‘Incident Debriefing’. Its content is as follows:
The Incident debriefing was held on 7 October 1998 and Chaired by _____ Manager, Continuous Improvement Unit. All persons in attendance were provided the opportunity to comment in relation to the incident.
_____ , the General Manager, Barwon provided an overview of the incident and individual staff members provided their recollections of the incident.
Positive comments were made in relation to the Acacia Unit staff response to the incident and to medical staff who continued in their efforts to provide treatment to the injured prisoner. Doctor _____ was also praised for the manner in which he was eventually able to convince Brazel to agree to hospital treatment.
Comments were made in relation to the fact that unit staff had not heard the breaking of the window. Staff commented on the general level of noise within the unit, the distractions caused by wind, telephones, PA system, and prisoner radios.
Technical Officer, ______ commented that the security rating of the glass should not have allowed penetration in less than thirty minutes.
Chief Prison Officer ______ commented that there were insufficient brown paper bags for the collection of prisoner clothing in relation to crime scene preservation.
The General Manager, Barwon then advised the meeting that a re-enactment of the incident would be conducted in order to gain a further understanding of some of the issues raised at the debriefing.
What was here disclosed gives a much clearer indication of what were perceived as security issues than do the sketchy minutes which the State seeks to withhold.
Version EV2 also included this passage relating to the re-enactment:
_____________, Associate Director, Building Services Agency, commented on his surprise at the speed with which the window was forced. This did not reflect the initial testing that was conducted at the time of construction. He also commented that the glass from the incident itself appeared to be of a different construction from the glass breached during the re-enactment.
Again, this passage – which has been disclosed – gives a fuller account of what was said by the relevant official than do the brief minutes of the same meeting which the State still wishes to suppress.
The only disputed portions of the report which might ever have justified a public interest argument are those which his Honour identified as Items 12-17 and 20-21. Item 12 sets out the results of the re-enactment. Items 13-17 are in the part of the report headed ‘Observations and Findings’, in the section entitled ‘Factors Contributing to the Incident.’ They contain comments about how various security features of the Acacia Unit responded during the incident, and about improvements which might need to be made. Some shortcomings are identified. Items 20-21 are in a document headed ‘Action Plan – Acacia Unit’. They list security ‘issues’, in the most general terms.
We have already referred to the complete lack of evidence from the State as to whether anything identified in these portions as an actual or potential security deficiency is in the same condition now as it was nine years ago. We think it most improbable that this would be so. After all, the very purpose of an incident review report like the one in issue here is to identify deficiencies in order that they may be rectified, so as to minimise the risk of a similar incident occurring in the future. To have rectified the identified deficiencies would be no more than would be expected of the State in discharge of its duties of care to staff and prisoners respectively. Even allowing for budgetary constraints, nine years is quite long enough for the rectification works to have been completed.
For these reasons, we consider that the State has failed to satisfy the threshold test – of potential damage to the public interest – in respect of any of the disputed portions of the report. No occasion arises therefore to undertake the balancing exercise.
This conclusion – and the analysis on which it is based – should provide a salutary lesson for any government official or agency contemplating a claim for public interest immunity. Since immunity will not be lightly conferred, it should not be lightly claimed. Contrary to the assumption on which the State appears to have acted in this interlocutory litigation, it is never enough merely to assert – as if it were self-evident – that disclosure of the information in question will harm some particular aspect of the public interest. The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.
We wish to say something finally about the deletion of names from the parts of the documents ordered to be released. We noted earlier his Honour’s view that there was a sound basis for the claim for immunity concerning the identities
of persons involved in the review, or interviewed about the incident and related matters, apart from Mr Brazel and those prisoners involved in the attack on him.
There is no cross-appeal on this point but we feel bound to express, with respect, some scepticism as to whether any proper basis was – or could have been – made for the concealment of the names. Concealment of a person’s identity could only be justified, in our view, if a clear case was made that the identification of that person as having made a particular comment, or provided particular information, in the course of the review or investigation of the incident would expose that person to danger. It is perhaps unsurprising that the State did not attempt to make out any such case. To take the re-enactment debriefing minutes as an example, we are unable to see how disclosing the identity of an officer who made a particular observation about some aspect of the re-enactment could give rise to any legitimate concern.
Public interest in the administration of justice
We turn finally to the competing public interest in the administration of justice. Although it is strictly unnecessary for us to address this issue in view of our earlier conclusions, we wish to express our complete agreement with the trial judge’s view that the information in question goes to the heart of the issues in the litigation which Mr Brazel has instituted. As noted, some parts of the report provide a contemporaneous assessment of security shortfalls at the Acacia Unit. Self-evidently, that will be centrally relevant to Mr Brazel’s negligence case.
It is, we think, an important feature of this litigation that it concerns the duty of care owed by the State to a prisoner in its custody. Counsel for Mr Brazel drew attention to the recent decision of the High Court in New South Wales v Bujdoso.[67] That case, like the present, concerned a claim by a prisoner that the State had breached its duty of care to him when he was assaulted by other prisoners. The High Court unanimously upheld the decision of the Court of Appeal of New South Wales that there had been a breach of that duty.
[67](2005) 227 CLR 1.
Relevantly for present purposes, the High Court said this:
It is true that a prison authority, as with any other authority, is under no greater duty than to take reasonable care. But the content of the duty in relation to a prison and its inmates is obviously different from what it is in the general law-abiding community. A prison may immediately be contrasted with, for example, a shopping centre to which people lawfully resort, and at which they generally lawfully conduct themselves. In a prison, the prison authority is charged with the custody and care of persons involuntarily held there. Violence is, to a lesser or a greater degree, often on the cards. No one except the authority can protect a target from the violence of other inmates. Many of the people in prisons are there precisely because they present a danger, often a physical danger, to the community. It is also notorious that without close supervision some of the prisoners would do grave physical injury to other prisoners.[68]
[68]Ibid 13-14 [44] (emphasis added).
Stephen J in Sankey v Whitlam referred to
the need to consider the particular nature of the proceedings in which the claimed Crown privilege arises in order to determine what are the relevant aspects of public interest which are to be weighed and what is to be the outcome of that weighing process.[69]
In that case, the claim for immunity was made in the course of a private prosecution of former ministers for conspiracy to effect an unlawful purpose under Commonwealth law (by procuring unauthorised foreign loans). In Stephen J’s view, the character of the proceedings
must raise doubts about the reasons customarily given as justifying a claim to Crown privilege for classes of documents, being the reasons in fact relied upon in this case. Those reasons, the need to safeguard the proper functioning of the executive arm of government and of the public service, seem curiously inappropriate when to uphold the claim is to prevent successful prosecution of the charges: inappropriate because what is charged is itself the grossly improper functioning of that very arm of government and of the public service which assists it.[70]
His Honour considered that to uphold the PII claim in that case would ‘come close to conferring immunity from conviction upon those who may occupy or may have occupied high offices of State’.[71]
[69](1978) 142 CLR 1, 60, 62; Alister v The Queen (1984) 154 CLR 404.
[70](1978) 142 CLR 1, 56.
[71]Ibid. See also 100 (Mason J).
There is, we think, a strong parallel with the present case. It would seem ‘curiously inappropriate’ to uphold a claim of PII in respect of a report disclosing shortcomings in the security arrangements in the Acacia Unit when Mr Brazel’s case alleges shortcomings of exactly that kind. Courts should be slow to uphold claims of PII where to do so will have the effect of inhibiting the investigation, by proper process, of allegations of negligence or maladministration by public officials.
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