Turner v Corrective Services NSW

[2013] NSWADT 39

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Turner v Corrective Services NSW [2013] NSWADT 39

Hearing dates:

On the papers

Decision date:

18 February 2013

Jurisdiction:

General Division

Before:

S Montgomery, Judicial Member

Decision:

1.The decision is affirmed with the exception of those items referred to in paragraphs [67] - [78] of these reasons.

2.Any further material from the parties is to be filed and served in accordance with the timetable set out in paragraphs [71] and [76] of these reasons.

Catchwords:

access to government information - access application - reasonable searches - overriding public interest against disclosure - decision to refuse to deal with application

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009

Cases Cited:

Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5
Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195
Commissioner of Police v Camilleri [2012] NSWADTAP 19
Ferns v Commissioner of Corrective Services, Department of Corrective Services [2007] NSWADT 298.
Miriani v Commissioner of NSW Police [2005] NSWADT 187
Patsalis v Commissioner of Police, NSW Police Service [2003] NSWADT 213

Texts Cited:

Riley, Solicitors Manual

Category:

Principal judgment

Parties:

Donovan Turner (Applicant)
Corrective Services NSW (Respondent)

Representation:

Counsel
S Barnes (Applicant)
D Allen (Respondent)
D Turner (Applicant in person)
Corrective Services (Respondent)

File Number(s):

123014

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Turner ("the Applicant") applied to Corrective Services NSW ("the Respondent") under the Government Information (Public Access) Act 2009 ("the GIPA Act") for access to information held by the Respondent ("the GIPA request").

1. It appears from the material filed that the Applicant had made earlier attempts to lodge the GIPA request but that the Respondent did not regard those requests as valid.

1. Following correspondence between the parties the scope of the Applicant's GIPA request was settled. By letter dated 12 October 2011, the Respondent's Information Access and Privacy Officer, Ms Mandy Beadle, wrote to the Applicant and confirmed the scope of the Applicant's GIPA request as follows:

I confirm the scope of your application to be for the following records:-

1.Case management file records not covered by your previous application received on 23 September 2010. Includes case notes and case records by all the people identified in the attachment to your application of 18.3.2011 (now known as attachment A) and case records about mail to and from you.

2.Case management file records from 2009 to those covered by your previous application received on 23 September 2010. Includes case notes and case records by all the people identified in the attachment to your application of 18.3.2011 (now known as attachment A) and case records about mail to and from you.

3.A printout of all your case management notes from OIMS [Offender Integrated Management System] not covered by your previous application received on 23 September 2010. Includes case notes and case records by all the people identified in the attachment to your application of 18.3.2011 (now known as attachment A) and case notes about mail to and from you.

4.A printout of all your case management notes from OIMS from 2009 to those not covered by your previous application received on 23 September 2010. Includes case notes and case records by all the people identified in the attachment to your application of 18.3.2011 (now known as attachment A) and case notes about mail to and from you,

5.Your education files possibly held by Bathurst and Wellington Correctional Centres.

6.Your property report printout.

7.Your psychology and psychiatric files.

8.All records about legal documentation (including charges) sent to or from you (between 2009 and 2011) not contained on your case management file or in the OIMS case notes,

9.All Risk Intervention Team (RIT) records from 2009 to 2011 not contained in your case management file or in the OIMS case notes.

10.All inmate request forms from 2009 to 2011 not contained on your case management file.

11.All forms, including general purchase forms and complaint forms in which you make a request or a complaint specifically about the investigation into the alleged assault of yourself at Wellington Correctional Centre and alleged threats against you in February or March 2010 that are not contained on your case management file. ·

12.All incident reports about you from 2009 to 2011 not contained on your case management file.

13.All records regarding the appointment between two CSIU detectives and yourself in 2010 not contained on your case management file,

14.All camera, CCTV and observation footage of you at Wellington and Bathurst Correctional Centres in 2010.

15.CCTV footage of all searches of your cell by squad officers in October and November 2009 and December 2009 to February 2010 (C Pod, Wellington Correctional Centre).

16.All AVL footage of your legal visits at Wellington, MRRC, Bathurst and Goulburn.

17.All records relating to a visit, and attempted visits, by two Bathurst Police officers to you at Bathurst Correctional Centre in late February/early March 2010 not contained on your case management file.

18.CCTV footage from Bathurst Correctional Centre showing inmate Hadad throwing a punch at you on 4 March 2011 between 1.40 pm and 2.10 pm.

With regard to point 18, I understand that you do not wish for consultation to be undertaken and that images of third-parties will be deleted from any footage.

1. For simplicity I will refer to the camera, CCTV, observation footage, cd-rom's etc information referred to in the Applicant's request collectively as "CCTV footage".

1. The Respondent did not consider items that fell within the scope of the Applicant's GIPA request that it regarded as falling within the scope of earlier GIPA requests brought by the Applicant. One earlier GIPA request was received by the Respondent on 23 September 2010 and is referred to by the Respondent as 10/11-086 ("10/11-086").

1. By letter dated 17 November 2011 Ms Donna Kember, Information Access & Privacy Officer, wrote to the Applicant and advised that:

A request for documents was made to Bathurst Correctional Centre; Wellington Correctional Centre; South Coast Correctional Centre; Dawn DeLoas Correctional Centre; Corporate Records; Corrective Services Investigation Unit and the Manager, Video Conferencing for records which are covered by the scope of your application. Case notes were also retrieved from OIMS.

I advise that no records were found in regards to points 7, 8, 9, 10, 12, 14, 15, 16, 17 and 18 of your application.

As per Ms Beadle's letter to you of 12 October 2011, information concerning the affairs of Justice Health is not covered by the scope of the application. Where Justice Health information has been removed, it is marked OOS (out of scope)

A number of records have been located which are covered by the scope of your application. My decision of today's date is that you have been granted partial access to those records because I consider that there is an overriding public interest against full disclosure. Copies are enclosed.

Under section 9(1) of the GIPA Act, you have a legally enforceable right to be provided with access to the information sought, unless there is an overriding public interest against disclosure of the information. In making such a decision, agencies must apply the public interest test under section 13 of the GIPA Act, which provides that there will only be an overriding public interest against disclosure where public interest considerations in favour of disclosure are, on balance, outweighed by those against disclosure.

The affected records are discussed below.

Records 1 to 26

Pursuant to clause 3(a) of the Table to section 14 of the GIPA Act, these records have not been released in full because they would reveal personal information about other persons. Pursuant to section 126(1)(e) of the GIPA Act, I decline to give any further details about the deleted information.

Record 27

Record 27 is held in relation to another person. Pursuant to clause 3(a) of the Table to section 14 of the GIPA Act, this record has not been released because it would reveal personal information about another person. Pursuant to section 126(1)(e) of the GIPA Act, I decline to give any further details about the denied information.

Record 28

Record 28 is a Core Skills Assessment completed on 7 May 2010. Pursuant to clause l(f) and clause 1(h) of the Table to section 14 of the GIPA Act, this record has not been released because it could reasonably be expected to affect the validity of education programs if offenders had access to the assessment. Pursuant to section 126(1)(e) of the GIPA Act, I decline to give any further details about the denied information.

1. Ms Kember also provided a schedule outlining the Respondent's determination in regard to the Applicant's GIPA request. That schedule provided:

Document	Clause of Table/Section 14	Reason
1(partial release)	Clause 3(a)	Personal information about other persons
2(partial release)	Clause 3(a)	Personal information about other persons
3(partial release)	Clause 3(a)	Personal information about other persons
4(partial release)	Clause 3(a)	Personal information about other persons
5(partial release)	Clause 3(a)	Personal information about other persons
6(partial release)	Clause 3(a)	Personal information about other persons
7(partial release)	Clause 3(a)	Personal information about other persons
8(partial release)	Clause 3(a)	Personal information about other persons
9(partial release)	Clause 3(a)	Personal information about other persons
10 (partial release)	Clause 3(a)	Personal information about other persons
11 (partial release)	Clause 3(a)	Personal information about other persons
12 (partial release)	Clause 3(a)	Personal information about other persons
13 (partial release)	Clause 3(a)	Personal information about other persons
14 (partial release)	Clause 3(a)	Personal information about other persons
15 (partial release)	Clause 3(a)	Personal information about other persons
16 (partial release)	Clause 3(a)	Personal information about other persons
17 (partial release)	Clause 3(a)	Personal information about other persons
18 (partial release)	Clause 3(a)	Personal information about other persons
19 (partial release)	Clause 3(a)	Personal information about other persons
20 (partial release)	Clause 3(a)	Personal information about other persons
21 (partial release)	Clause 3(a)	Personal information about other persons
22 (partial release)	Clause 3(a)	Personal information about other persons
23 (partial release)	Clause 3(a)	Personal information about other persons
24 (partial release)	Clause 3(a)	Personal information about other persons
25 (partial release)	Clause 3(a)	Personal information about other persons
26 (partial release)	Clause 3(a)	Personal information about other persons
27 (not released)	Clause 3(a)	It would reveal personal information about another person
28 (not released)	Clause 1(f) /Clause 1(h)	Could reasonably be expected to affect the validity of education programs if offenders have access

1. The Applicant has applied to the Tribunal for review of that determination. He has specifically referred to that part of the determination which found that "no records were found in regards to points 7, 8, 9, 10, 12, 14, 15, 16, 17 and 18" of his request.

1. He also specifically stated that he is not seeking further copies of documents that have been provided. However he appears to be challenging the determination to not consider the GIPA request insofar as it concerned information that was the subject of 10/11-086.

The Applicant's GIPA request in 10/11-086

1. The Applicant's GIPA request in 10/11-086 sought:

1.All records regarding complaints made against Mr Dries, General Manger of Wellington Correctional Centre (CC) regarding an assault upon you while held in segregation block;

2.All records regarding complaint made against Wellington CC Squad officers regarding death threats upon you while at the segregation block;

3.All records regarding complaint made against Mr Dries, General Manger of Wellington CC, withholding brief, x9 floppy discs, journals, letters (legals);

4.All classification documents including computer entries;

5.All documents/information regarding observations/visits to you by psychologists' and medical practitioners during your incarceration at Wellington and Bathurst CC;

6.All records relating to you held by Corrective Services relating to your imprisonment (current sentence) including documents relating to health/medical matters, case management, requests for formal complaints, legal documentation, charges, segregation matters;

7.All records of Corrective Services staff regarding charges or complaints against you;

8.CCTV footage and video footage of you being taken to segregation and time spent in segregation at Wellington Correctional Centre.

1. The relevant decision in 10/11-086 in relation to CCTV footage was that of Ms Mandy Beadle and dated 5 November 2010. In that determination Ms Beadle stated:

I refer to your access application under the Government Information (Public Access) Act 2009 (GIPA Act), where you requested copies of the following records concerning you:

...

8.CCTV footage and video footage of you being taken to segregation and time spent in segregation at Wellington Correctional Centre.

...

The decision-maker with regard to point 8 was Mr Christopher Quilkey, Senior Policy and Projects Officer, Corporate Legislation and Parliamentary Support. Mr Quilkey determined on 27 October 2010 to deny access to two of the three cd-rom's which contain video footage of you.

...

Records 1 & 2 (CD-Roms)

Pursuant to public interest clause 2(e) of the Table to section 14 of the GIPA Act, Mr Chris Quilkey denied access to cd-rom's identified as WCCVID.099 and WCCVID.098. Mr Quilkey considers that if this footage were to be released; it would endanger the security of, and prejudice systems and procedures for protecting a correctional facility. Pursuant to section 126(1)(e) of the GIPA Act, he declines to give any further details about the footage.

Applicable Legislation

1. Section 100 of the GIPA Act provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for a review of the decision

1. Section 80 of the GIPA Act provides a list of the types of decisions that are reviewable by the Tribunal. It provides:

80 Which decisions are reviewable decisions

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

...

(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,

...

1. Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act ") sets out the approach to be taken by the Tribunal in relation to an application for a review of a reviewable decision. Section 63 states: provides:

"63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

1. The objects of the GIPA Act are set out in section 3, which provides:

3 Object of Act

(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.

(2) 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. It was not disputed that the information the subject of this application is government information that is held by an agency: see the definitions in section 4(1) of the GIPA Act.

1. There is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure': section 5 of the GIPA Act.

1. Section 12 of the GIPA Act reiterates the general presumption in favour of disclosure of government information, and lists examples of public interest considerations that favour disclosure.

1. Section 13 of the GIPA Act sets out the test that is to be applied in determining whether there is an overriding public interest against disclosure. That test is in the following terms:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interests 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 set out in section 14 of the GIPA Act. In Commissioner of Police v Camilleri [2012] NSWADTAP 19 at paragraph [26] the Appeal Panel noted that the section 14 considerations need to be examined at a broad operational level and that those considerations "are concerned with systemic features of the operation of government".

1. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure. It provides:

15 Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles:

a) Agencies must exercise their functions so as to promote the object of this Act.

b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

1. Section 53 of the GIPA Act sets out the obligations of agencies in locating government information in response to a request. It provides:

53 Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.

1. Pursuant to section 60(1) of the GIPA Act an agency may refuse to deal with an access application in certain situations. Section 60(1) provides:

60 Decision to refuse to deal with application

(1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

(a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources,

(b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application,

(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989,

...

1. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: section 105(1) of the GIPA Act.

The Respondent's case

1. The Respondent contends that all records found were considered in accordance with the "public interest test" as required by the GIPA Act, and provided to the Applicant in full, with the exception of those records identified in the Schedule referred to above.

1. The Respondent has proceeded on the basis that the Applicant is not challenging the determination insofar as it redacted some material from the documents that have been released.

1. As noted above, the Respondent's letter of decision asserts that in relation to items 7, 8, 9, 10,12,14,15,16,17,18 of the Applicant's requests, "no records were found". The Respondent submits that the searches undertaken in relation to the Applicant's GIPA request have been adequate and sufficient.

1. The Respondent further asserts that "an agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources": section 53(5) of the GIPA Act,

1. The Respondent asserts that the CCTV and video camera footage that the Applicant is seeking was the subject of an earlier GIPA request brought by the Applicant. The Respondent further asserts that the applicant did not appeal the decision in relation to that GIPA request and that as the request concerns incidents at Wellington Correctional Centre ("WCC") and the fact that the Applicant has not been accommodated at the WCC since March 2010, there is no additional CCTV/video camera footage from the WCC.

1. Pursuant to section 60(1) (b), the Respondent decided not to deal with this aspect of the request as it had already made a decision in relation to that information in a previous application; and, there were no reasonable grounds for the Respondent to make a different decision.

1. No evidence or argument was presented in support of the assertion that there were no reasonable grounds for the Respondent to make a different decision.

1. Where searches have been undertaken in relation to information of a kind that was dealt with in 10/11-086, the search was limited to information recorded after the decision in regard to 10/11-086.

1. In relation to the items in issue, the Respondent provided the following submissions (paragraph numbering and references to annexures removed):

Item 7

According to the records of the Respondent, no psychology file has been created for the Applicant. This was confirmed in the psychology case note dated 3 March 2010 and the psychology case note dated 5 March 2010. These were provided to the Applicant in the decision in PAA No: 10111-086.

...

The Respondent submits that psychiatric files would be held by Justice Health; and, the applicant would need to apply directly to that agency to access these files. The Respondent has no access to inmate medical files held by Justice Health. This was also explained to the Applicant by the OIC

Item 8

All legal documents held by the Respondent have been provided to the Applicant.

Inmate applications found on the [Case management file ("CMF")], and already provided to the Applicant, indicate that legal information belonging to the Applicant were given to his step-father for removal from the correctional centre. No other legal documentation is held by the Respondent.

Item 9

The Risk Intervention Team (RIT) records are held on the CMF; any alerts relating to actions undertaken by the RIT are recorded in [the Offender Integrated Management System (OIMS)] along with complementary case notes. These documents have been provided to the Applicant. No other RIT records are held by the Respondent.

Item 10

All inmate request forms are held on the CMF, and have been provided to the Applicant. No other inmate request forms are held by the Respondent.

Item 12

All incident reports are held on the CMF or on the OIMS printout, all of which have been provided to the Applicant. No other incident reports are held by the Respondent.

Item 14

All camera, CCTV and observation footage of the applicant from the WCC was partially released in response to PAA 10/11-086.

In relation to the WCC footage considered in the previous decision, the Respondent submits that in accordance with section 60(1) (b), as there are no reasonable grounds for the agency to make a different decision, it declines to revisit this decision.

...

In relation to the CCTV/video camera footage requested from the [Bathurst Correctional Centres ("BCC")], a search was undertaken by Senior Correctional Officer (SCO) Kendall Stait, who advised that there was no footage which conformed to the details provided in the Applicant's PAA. ...

Item 15

All camera, CCTV and observation footage of the Applicant from the WCC was partially released in response to PM 10/11-086.

The Respondent submits that in accordance with section 60(1) (b), as there are no reasonable grounds for the agency to make a different decision, it declines to revisit this decision.

Item 16

An "Audio Visual Link" (AVL) is defined in section 3 of the Crimes (Administration of Sentence) Act 1999 as "facilities (including closed-circuit television) that enable audio and visual communication between persons at differentplaces."

The AVL within correctional centres is used to facilitate inmate matters between correctional centres, Courts, other agencies within the criminal justice system and agencies that support the usage of this facility.

The AVL facilities are solely for the purpose of communication as set out above; they have no recording ability; therefore, the Respondent does not hold any recordings or footage. ...

...

Item 17

A local investigation into the incident alleged by the Applicant at the WCC was undertaken by Regional Superintendent Barbara Andrews; her report was partially released to the Applicant in PAA 10/11-086.

The incident was then referred to the Corrective Services Investigations Unit (CSIU) by the Professional Standards Committee in accordance with the Respondent's policy on the Management of Professional Conduct in the Workplace.

The CSIU is staffed by sworn police officers from the NSW Police force. Its task is to investigate serious and criminal misconduct by the Respondent's employees.

CSIU officers visited the BCC to interview the Applicant in relation to the abovementioned allegation. Their final report is contained in documents 18-26 of the Schedule. These documents comprise the whole of the CSIU investigation into the Applicant's allegations of assault at WCC in February 2010. ...

Prior to releasing these documents to the Applicant, the Respondent undertook consultation with the NSW Police and the former General Manager.

Objections were made by both parties in relation to the release of "personal information".

In light of these objections, the OPIAD in clause 3(a) of the Table to section 14 was given due consideration in the application of the "public interest test". Consequently, these documents have only been partially released.

No visits by Bathurst Police were recorded or otherwise noted in the Applicant's case notes, visits log or incident reports. Visits logs are also included in the Inmate Profile Document held on both OIMS and the CMF,

... a letter from the BCC General Manager, Mr Bill Fittler, dated 14 April 2010, advising that "Inmate Turner was also

interviewed by Bathurst Police..."

In the Crimes (Administration of Sentences) Regulation 2008 (the Regulation) it states at Regulation 74(1) (e) "government officials engaged on official duties" and regulation 74 (1) (f) "any person in the exercise of a power conferred by or under an Act" may be admitted to a correctional centre in the performance of those duties or in the exercise of their powers.

"Government officials" is defined in the Dictionary to the Regulation to mean "an officer of the Crown, and includes a police officer".

As part of the criminal justice and law enforcement community, and in light of the above cited provisions of the Regulation, providing NSW Police with unrestricted access to correctional centres "in the performance of official duties or in the exercise of their powers by or under an Act", the Respondent submits that it would not have refused entry to any NSW Police, nor would the entry of NSW Police into a correctional centre or other facility of the Respondent be recorded in the visits log.

Item 18

SCO Stait has advised that he was unable to locate any CCTV footage in relation to this item. There were also no case notes or incident reports, which reference the incident as described by the Applicant.

1. The annexures attached to the Respondent's submissions provided evidence in support of the various assertions made about these items.

1. The Respondent submits that it has undertaken reasonable searches in respect of the Applicant's GIPA request. As noted above, section 53 of the GIPA Act sets out the obligations of agencies in locating government information in response to a request.

1. The Respondent also relies on an affidavit by Kendal Stait, Senior Correctional Officer at Bathurst Correctional Centre. Mr Stait's evidence is that his duties include gathering, interpreting, investigating and disseminating information that has been received into the Intelligence Office. He stated:

4. In response to a request by the General Manager, Mr Fittler, I was tasked with the responsibility for:

(a)locating all camera, CCTV footage and observation footage of inmate Turner whilst he was accommodated at the Bathurst Correctional Centre.

(b)locating footage from Bathurst Correctional Centre showing inmate Haddad throwing a punch at inmate Turner on 4 March 2011 between 1.40 pm and 2.10 pm

5. To carry out this task I proceeded to check the Intelligence information storage program on the Intel computer. This system is known as ISYS.

6. I also checked the Hand held video camera register in the Immediate Action Team (lAT) office, Offender Integrated Management System (DIMS), and then CCTV monitors in the Intelligence office.

7. I found no Hand held video camera or CCTV footage of inmate TURNER. There was nothing at all registered in the IAT video register regarding TURNER suggesting to me that TURNER had not been involved in any reported incidents where a hand held video camera was required.

8. I searched the hard drive and computer desktop on the CCTV computer in the Intel Office for any video footage of TURNER. I found no information for inmate TURNER and again there was no video footage regarding TURNER stored on the CCTV computer.

9. I searched OIMS, this is the recognised Computer system that CSNSW use to store inmate information. I searched the Incident Report Module FIRM), Alerts module and E case notes for any incidents involving TURNER, I searched between dates 1st January 2011 and 30th April 2011 which more then covered the date TURNER claims he was assaulted. During the above search TURNER was not found to be involved in any incidents at all at Bathurst Correctional Centre.

10. I also searched the Intel ISYS system for any incidents regarding TURNER at Bathurst Correctional Centre and again there was no information that would suggest that TURNER had been involved in any incidents at Bathurst Correctional Centre.

11. I found no information stored anywhere at Bathurst Correctional Centre regarding inmate TURNER that would suggest that he was or had been involved in any incidents.

1. The Respondent submits that Mr Stait's Affidavit does not add any new information; it merely details the steps taken by the relevant officer, in the search for information included in the scope of the PM, and that officer's findings. The Affidavit was provided solely for the purpose of evidencing the level of inquiry undertaken by the Respondent.

The Core Skills Assessment

1. As noted from the determination set out above, the Respondent refused access to the document referred to as Record 28. That document is identified as a Core Skills Assessment completed on 7 May 2010.

1. The Respondent relies on the Affidavit of Janet Sylvia Phillips sworn on 30 April 2012. Ms Phillips is State Manager Adult Basic Education with the Respondent. She stated:

4.The Core Skills Assessment forms the basis of the initial assessment of the literacy and numeracy levels of an offender in line with the levels of the national Australian Core Skills Framework (ACSF). An offender assessed as Not Yet Achieved (NYA), level 1, level 2 or level 3 in any of the skills measured (reading, writing and numeracy) can be enrolled in an adult basic education course to develop these skills. The scores on the CSA are recorded on the Offender Integrated Management System (01MS) to inform appropriate enrolment in education programs and provide information on levels relevant to consideration for other programs.

5.I consider the release of this information would adversely affect that process since the Core Skills Assessment is a single assessment of basic skills and requires no preparation or practice. It is administered after incarceration at the gaol of classification and is completed individually. Scored by a literacy teacher according to strict guidelines, the assessment needs to reflect the offender's skill levels at that particular time. The results could not be relied on if an offender had any prior knowledge of the contents.

6.The Core Skills Assessment is an initial assessment of broad foundation skills for further learning. As such, a low score in literacy or numeracy alerts education staff to the need for enrolment in a class. It is not a measure of achievement and therefore a low score does not mean that an offender has failed in a course of study. Unlike an achievement test, there is no reason to practise prior to sitting the test. Indeed the reliability of the assessment is contingent on it being free of the practice effect.

7.In my opinion the release of the exempt material to an offender would diminish the integrity of the CSA, thereby having a substantial adverse effect on the operations of CSNSW. Contamination of the assessment process would therefore incur significant financial cost to the government.

8.The CSA was developed by AEVTI to determine target groups for educational interventions as well as assessing an offender's capacity to engage in other programs. Considerable resources were devoted to the development, since the CSA scores are an essential component of the data on improving literacy levels of offenders in custody.

1. The Respondent submits that for these reasons the Tribunal should affirm the Respondent's decision in relation to the information sought by the Applicant in this matter.

The Applicant's case

1. The Applicant filed written submissions in support of his application. Those submissions extend to some 230 pages of mostly handwritten material. I found those submissions very difficult to follow.

1. The Applicant's submissions challenge that part of the determination which found that "no records were found in regards to points 7, 8, 9, 10, 12, 14, 15, 16, 17 and 18" of his request but they do not appear to touch on the issue of whether material was correctly withheld.

1. Much of the material extends well beyond the scope of the Applicant's GIPA request. It concerns the conduct of officers of the Respondent rather than the GIPA request. For example he has referred to alleged assaults and the withholding of legal briefs and mail and what he asserts were illegal transfers within the prisons. He has also taken issue with the content of correspondence from officers of the Respondent. It is my understanding that the Applicant has provided this information as a background to the GIPA request. It also provides a context for the submission that information that has not been located should exist.

1. The numbering of the items referred to in the schedule that Ms Kember provided does not correspond to the numbering in the Applicant's GIPA request as set out in Ms Beadle's 12 October 2011 letter referred to above. The changed numbering appears to have caused some confusion for the Applicant. A significant portion of the submissions seems to be a result of that confusion.

1. The Applicant's submissions deal with the issue of whether he should be provided copies of CCTV footage in some detail. His arguments go to the question of what footage should exist and why it should be released to him. In particular he seeks material in support of his allegations regarding conduct of certain officers of the Respondent.

1. It appears that the Applicant concedes that the material he is seeking was also the subject of previous applications under the GIPA Act including 10/11-086. He has alleged that extensive amounts of documentation were removed from packaging that he received at the Bathurst and South Coast Correctional Centres. He has either asserted that the material was never released to him, despite the Respondent's assertion that it was provided, or that access to the requested material was refused.

1. It appears that the Applicant is asserting that a number of items that were covered by the 10/11-086 request were never received despite the determination that they should be released to him. However, I am unable to ascertain from the Applicant's submissions which items he is asserting fall within that category.

1. Much of the Applicant's submissions present arguments in regard to why access to the requested material should be granted. The submissions also present arguments in regard to the determination that "no records were found". He presented detailed argument to support his view that the records should exist and that the Respondent's effort to locate them was inadequate.

1. It also appears that the Applicant is asserting that the Respondent has misconstrued item 5 of his GIPA request in regard to education files and that he was requesting Property Report Printouts regarding withheld legal briefs. This appears to be the same information sought in Item 3 of in 10/11-086.

1. The Applicant's submissions also deal with the issue of the accuracy of information contained within some of the documents that have been released to him. In my view, these proceedings do not touch on that issue.

1. At page 128 - 129 of his submissions the Applicant has identified a number of records from the Bathurst and Wellington Correctional Centres, which he asserts, were never received at any time. It is not clear whether the Applicant is asserting that these records are records that should have been located and were not or whether they are records that should have been released to him and were not released.

The Applicant's case regarding non-provision of previously requested information

1. As I have noted above, I found the Applicant's submissions very difficult to follow. It is clear that the Applicant has asserted that he has not received information that was the subject of earlier GIPA requests. It is not clear to me whether the Applicant is referring to determinations to release information that was never in fact released, or whether he is asserting that a determination to refuse access to information was wrongly decided.

1. Clearly, there is considerable overlap between the information sought in 10/11-086 and that sought in this application. . It is my understanding that the Applicant has provided this argument as a challenge to the Respondent's finding that there are no reasonable grounds for believing that it would make a different decision on the application.

Findings

1. Section 80(e) of the GIPA Act provides that a decision that government information is not held by the agency is reviewable by the Tribunal. The Tribunal must come to a view whether there may be some further documents relevant to the application and, if so, whether the Respondent has undertaken reasonable searches to find them.

1. In Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5, Judicial Member Isenberg discussed the approach to be taken in determining whether the search undertaken by an agency is sufficient. In doing so she referred to a number of authorities that considered that issue for the purposes of the FOI Act. She stated:

28 In determining what constitutes a sufficient search, the Tribunal has adopted the approach of the Information Commissioner of Queensland in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, in a number of cases, eg Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201, DQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 215; Patsalis v Commissioner of Police, New South Wales Police Service [2003] NSWADT 213; Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 at [14]; O'Hara v North Sydney Council [2005] NSWADT 100 at [11]; and, Curtin v Vice-Chancellor, University of New South Wales (No 2) [2006] NSWADT 56.

29 In Shepherd it was said at [19] that there were two questions for consideration:

(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and if so,

(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.

30 Simply put, the Tribunal must come to a view whether there may be some further documents relevant to the application and, if so, whether the respondent has tried hard enough to find them.

1. In Patsalis v Commissioner of Police, NSW Police Service [2003] NSWADT 213, President O'Connor stated:

"the standard of search which an agency is obliged to conduct is simply whether reasonable searches have occurred. The fact that there may be weaknesses in an agency's searches, or that there may be failures in its recordkeeping processes, did not necessarily lead to the conclusion that the search had not been reasonable, or sufficient, or adequate."

1. It is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 at [69]. When alleging that the search was insufficient, the applicant must first and foremost put some credible material or submissions before the tribunal that documents of the kind requested exist. It is not enough to merely assert non-compliance on the basis of general distrust of the agency: Ferns v Commissioner of Corrective Services, Department of Corrective Services [2007] NSWADT 298.

1. In Miriani v Commissioner of NSW Police [2005] NSWADT 187 the Tribunal's President stated:

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

1. In the present matter, the Respondent has provided material in support of its assertions regarding the finding that it does not hold the material that the Applicant has sought. The Respondent submits that all searches undertaken in the present matter have been careful and methodical and included all the locations in which information about the Applicant would be kept. I accept that submission.

1. I have no basis on which I could conclude that the Applicant is correct in his assertion that the Respondent has deliberately withheld or destroyed information.

1. In regard to some items that it does not hold, the Respondent has provided the Applicant with some indication as to where the information might be held. For example, it is suggested that the Justice Health Mental Health Unit might hold a psychological file. In that regard it has provided the Applicant with some assistance in locating the information. In relation to the Applicant's request for all records from NSW Police attending the BCC, the Respondent suggested that NSW Police would hold these records.

1. The Respondent contends that it has no access to the Applicant's records held by Justice Health or by the NSW Police, unless it has been specifically provided to the Respondent. Further, it says that it does not hold information concerning the evidence in the Applicant's criminal proceedings.

1. In my view, the Respondent has satisfactorily responded to the Applicant's request. I am satisfied that the Respondent has taken reasonable steps to locate the material sought and that it has been unable to find further material.

1. However, on the basis of the Applicant's material I am also satisfied that other material should exist eg records of incidents to which the Applicant has referred, In the circumstances it is reasonable to infer that documentation that would be expected to exist has either not been created, or if it was created, it has been lost or destroyed.

1. There seems to be some merit to the Applicant's submission that documentation would be expected to exist had a proper investigation of his complaints been carried out. The absence of that documentation suggests that either the process was inadequate or the record keeping is inadequate.

1. The decision under review is affirmed insofar as it concerns the finding that "no records were found in regards to points 7, 8, 9, 10, 12, 14, 15, 16, 17 and 18" of the Applicant's request.

Further progress of the matter

1. In my view, the Applicant's GIPA request should not be construed as excluding information that was the subject of the determination in 10/11-086 to allow access to information, if the Applicant asserts that the information was never provided to him.

1. Given the Applicant's circumstances, the Respondent is in total control of what items the Applicant receives. I accept the Applicant's assertion when he states that he did not receive certain material.

1. However, as I have noted above, I am uncertain whether or not the Applicant is asserting that he did not receive information that was meant to have been released to him.

1. If the Applicant is asserting that the Respondent has previously determined that information should be released to him but that it was never received, I invite him to identify any items that fall within that category and to identify the determination that he asserts applies to each item.

1. Any such clarification is to be succinct and limited to no more than five A4 pages and it is to be filed and served within 28 days of the date of these reasons. Any reply by the Respondent is to be filed and served within 56 days of the date of these reasons.

1. As noted above, where the information sought is of a kind that was dealt with in 10/11-086, the searches that the Respondent undertook were only in relation to information recorded after the decision in regard to 10/11-086. This approach was adopted on the understanding that there were no reasonable grounds for the Respondent to make a different decision to that taken in 10/11-086.

1. While it is by no means clear, it is my understanding from the Applicant's material that he is challenging that approach.

1. Pursuant to section 80(c) of the GIPA Act, a decision to refuse to deal with an access application is a reviewable decision. Pursuant to section 105 of the GIPA Act, the onus is on the Respondent to justify its decision.

1. As noted above, the Respondent did not present any evidence or argument was presented in support of the assertion that there were no reasonable grounds for the Respondent to make a different decision. In the circumstances I invite the Respondent to provide evidence and argument in support of the assertion. I note that I anticipate that some of evidence might be filed on a confidential basis.

1. Any such evidence and argument is to be filed and served within 28 days of the date of these reasons. Any reply by the Applicant is to be filed and served within 56 days of the date of these reasons.

1. I will make a decision in relation to the outstanding issues on the basis of any further material filed.

1. The decision is otherwise affirmed.

Orders

1.The decision is affirmed with the exception of those items referred to in paragraphs [67] - [78] of these reasons.

2.Any further material from the parties is to be filed and served in accordance with the timetable set out in paragraphs [71] and [76] of these reasons.

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Decision last updated: 20 March 2013