Turner v Corrective Services NSW (No 2)

[2013] NSWADT 232

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Turner v Corrective Services NSW (No 2) [2013] NSWADT 232

Hearing dates:

On the papers

Decision date:

21 October 2013

Jurisdiction:

General Division

Before:

S Montgomery, Judicial Member

Decision:

1. The decision of the Respondent in regard to the videos identified as DVD WCCVID.097 WCCVID.098 and WCCVID.099 is set aside.

2. In substitution thereof a decision is made to grant the Applicant access to view the videos. Within 30 days from the publication of these reasons the Respondent is to provide the Applicant with a reasonable opportunity to inspect the footage of the videos.

3. The decision of the Respondent is otherwise affirmed.

Catchwords:

access to government information - overriding public interest in favour of disclosure - form of access - information not held

Legislation Cited:

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

Cases Cited:

Commissioner of Police v Camilleri [2012] NSWADTAP 19
Flack v Commissioner of Police [2011] NSWADT 286
Leech v Sydney Water Corporation [2010] NSWADT 298
Turner v Corrective Services NSW [2013] NSWADT 39

Category:

Principal judgment

Parties:

Donovan Turner (Applicant)
Corrective Services NSW (Respondent)

Representation:

D Turner (Applicant in person)
G Singer (Respondent)

File Number(s):

123014

reasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The background to this matter is set out in my reasons for decision in Turner v Corrective Services NSW [2013] NSWADT 39 ("the earlier decision"). In the earlier decision I invited the Applicant to identify any items that he asserts have not been provided to him notwithstanding a determination by the Respondent that the information should be released to him. I directed that his clarification be succinct and limited to no more than five A4 pages.

1. I gave the Respondent the opportunity to reply to any clarification provided by the Applicant and to also provided evidence or argument in support of the assertion that there were no reasonable grounds for the Respondent to make a different decision in relation to certain information that the Applicant sought but which had been the subject of an earlier determination.

1. Each of the parties has filed further material. The Applicant filed submissions that comprise 24 hand-written pages. The submissions are neither succinct nor limited to five A4 pages. I have nevertheless considered those submissions. The Respondent has filed written submissions and also relies on affidavits provided by Margaret Fulford, Manager of the Respondent's Information Access and Privacy Unit; Dominic Pezzano, the Respondent's Superintendent - Custodial Corrections Division; and Matthew Damaso, Manager of the Respondent's Industries, Technical Support Unit, Security & Intelligence Division.

1. I propose to only deal with those matters that were not determined in the earlier decision. The Applicant's submissions take issue with many of the findings that I made in the earlier decision. For example, at paragraph [64] of in the earlier decision I stated

64 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. The Applicant's submissions refer to numerous items that fall within that category. I do not propose to deal with those issues. The appropriate avenue to raise them is in an appeal. Much of the Applicant's submission refers to his intention to raise his concerns with the media. I do not propose to deal with that issue.

1. The Applicant has confirmed that his assertion that he has not been provided with some information notwithstanding the Respondent's determination that the information should be released to him. In particular he raised issues in relation to videos ("the videos") that he had sought. He asserts that officers of the Respondent "had unlawfully opened and removed items such as CD from the packaging forwarded" by the Respondent's Information Access and Privacy Unit. He asserted that "it is apparent that [the Respondent's Information Access and Privacy Unit] had disclosed and sent x2 CD items yet only one was received in the 2010 disclosure". He has not identified any determination by the Respondent that two CDs were to be released to him.

1. In the earlier decision I invited the Applicant to identify any items that the Respondent has previously determined should be released to him and to identify the determination that he asserts applies to each item. With the exception of the reference to the removal of the CD, he has not done so. He stated that he is unable to do so because his "legal property is at this time being unlawfully withheld in reception area (not in-cell) at Bathurst CC in which I cannot access/denied".

1. The Applicant did not request an extension of time to allow him to respond after his legal property was released to him and he has not subsequently provided information that would allow the Respondent or the Tribunal to consider other issues.

Applicable Legislation

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. Section 12 provides:

12 Public interest considerations in favour of disclosure

(1) There is a general public interest in favour of the disclosure of government information.

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

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

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

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

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

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

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

...

1. 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. Section 14 provides:

14 Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

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

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

(4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section).

1. Clause 2 of the Table to section 14 of the GIPA Act provides:

2 Law enforcement and security

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally):

...

(e) endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle,

...

(h) prejudice the security, discipline or good order of any correctional facility.

1. 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 72 of the GIPA Act provides:

72 Forms of access

(1) Access to government information in response to an access application may be provided in any of the following ways:

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2) The agency must provide access in the way requested by the applicant unless:

(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

(b) to do so would be detrimental to the proper preservation of the record, or

(c) to do so would involve an infringement of copyright, or

(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Note: Decisions about how to provide access are reviewable under Part 5.

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 in regard to the videos

1. The Respondent has identified three videos that fall within the scope of the Applicant's request. They are identified as WCCVID.097, WCCVID.098 and WCCVID.099.

1. The Respondent's evidence is that the initial determination in regard to the videos was to deny the Applicant access to the footage of two of the three videos. That determination was made pursuant to clause 2(e) of the Table to section 14 of the GIPA Act on the basis that if the footage were to be released, it would endanger the security of, and prejudice systems and procedures for protecting a correctional facility.

1. In response to the orders that I made in the earlier decision Superintendent Pezzano reviewed the footage of the videos. In his affidavit dated 20 March 2013 Superintendent Pezzano stated:

For the purpose of preparing this affidavit, I reviewed the CCTV footage in three DVDs containing CCTV footage in relation to the applicant, who is an inmate within the custody of the Respondent.

The abovementioned CCTV footage relates to the Applicant's whilst accommodated at Wellington Correctional Centre on 28 February 2010 and 3 March 2010.

The DVDs, which have been identified as WCCVID.099 and WCCVID.098, contain CCTV footage, which has not been provided to the Applicant.

I am of the opinion that to release this CCTV footage to an inmate, in my view, could affect the good order and security of the centre.

It is my understanding that DVD WCCVID.097 contains CCTV footage which has already been provided to inmate Turner with pixilation of the officers' faces.

1. In a confidential affidavit of the same date Superintendent Pezzano gave further evidence in support of his opinion that release of the withheld footage could affect the good order and security of the centre.

Consideration

1. In deciding whether to release information, the Tribunal must decide whether or not an overriding public interest against disclosure applies to the information. As noted above, section 13 of the GIPA Act requires the Tribunal to undertake the following steps:

• identify the relevant public interest considerations in favour of disclosure
• identify the relevant public interest considerations against disclosure.
• determine the weight of the public interest considerations in favour of and against disclosure and where the balance between those interests lies.

Public interest considerations in favour of disclosure

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. It is not in dispute that the Applicant is the subject of the videos. There is a public interest in the Applicant being able to access information concerning himself. This is particularly the case in circumstances where there is an assertion that the videos will show conduct that is unlawful, unwarranted, unethical, or otherwise inappropriate.

1. The Applicant clearly does not trust the Respondent's officers, nor does he have confidence in the decisions in relation to his access application. The Applicant's assertions seem to support the public interest considerations in favour of release listed in subsections 12 (d) and (e) of the GIPA Act. That is, the videos contain the Applicant's personal information and disclosing the information could possibly be expected to reveal or substantiate that officers of the Respondent have engaged in "misconduct or negligent, improper or unlawful conduct".

1. Other possible public interest considerations may be that disclosure of information could reasonably be expected to:

• advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies; and
• contribute to the administration of justice generally, including procedural fairness.

1. These considerations are to be considered in the balancing process that the Tribunal must undertake.

Public interest considerations against disclosure

1. The public interest considerations against disclosure are limited to those set out in the Table to section 14 of the GIPA Act.

1. Superintendent Pezzano conceded that the CCTV footage relates to the Applicant. He is of the view that the release of the withheld footage to an inmate could affect the good order and security of the centre and that releasing the pixilated material without pixilation could pose a security risk to those officers who are shown in the footage.

1. While Superintendent Pezzano has expressed this view, he has not provided any basis for holding the view or how the release of the video footage would pose the asserted risks.

1. To raise these as relevant considerations in the application of the public interest test the Respondent must establish that the disclosure of the information "... could reasonably be expected to have .... the effect" outlined in the Table. The principles for the interpretation of "could reasonably be expected" were discussed in Flack v Commissioner of Police [2011] NSWADT 286 at paragraphs [40] - [41], adopting the approach taken in Leech v Sydney Water Corporation [2010] NSWADT 298:

25 The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.

1. Because the Respondent bears the onus of justifying its decision to refuse the Applicant access to the information, it has the burden of establishing that the public interest considerations against disclosure it relies on apply. It also bears the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure. It is not sufficient that the Respondent merely makes an assertion that the risk 'could reasonably be expected'.

1. I note that the Applicant is aware of the identities of the officers who appear in footage that has already been provided to him, albeit with pixilation of the officers' faces. It is not immediately apparent how releasing the material without pixilation could pose a security risk to those officers. For example there is no suggestion that any threat has been made towards those officers. Given that the Applicant is already aware of their identities, it is not clear how the pixilation of the officers' faces would prevent any perceived risk.

1. I accept that there is a general need for maintenance of security in correctional centres. I also accept that the Respondent has concerns in relation to risks that might follow the release of this information.

1. However, in circumstances where the Respondent has not provided the Tribunal with a copy of the footage and has not provided evidence of how the asserted risk arises, it is my view that the balancing process favours the Applicant being given access to the footage.

1. In my view allowing the Applicant to view the footage but not allowing the Applicant to retain a copy of the footage should meet the Respondent's concerns. It will also allow the Applicant to satisfy himself of the content of the videos, make a written record of his observations and to take whatever legal action he proposes based on that content. The decision in relation to the videos should be set aside and the Applicant should be given a reasonable opportunity to inspect them.

Other video material

1. Ms Fulford provided evidence to clarify issues that I raised in the earlier decision. This included her evidence that no extra video footage was found.

1. The Respondent has provided the Tribunal with a copy of the section of its Operations Procedures Manual dated August 2012 that concerns Recording & Managing Video Evidence ("the policy").

1. Mr Damaso provided evidence in relation to the collection and storage of CCTV footage at Wellington and Bathurst Correctional Centres. At Wellington Correctional Centre, CCTV video footage is recorded onto a digital video management system. The capacity of the system allows for all cameras to retain footage for 7 days, after this time the footage is automatically deleted. This is in line with the specifications when the system was commissioned. If an incident is required to be retained, then suitably trained staff have the ability to back up the footage to removable media e.g. CDROM, DVOROM or flashdrive.

1. At Bathurst Correctional Centre all CCTV cameras are recorded locally onto Digital Video Recorders. These recorders retain the footage between 7 and 12 days. After this time the footage is overwritten with new footage. The reason for the varying time frame is that different recorders have different hard drive capacities.

1. Camcorder footage is kept at a local correctional centre. The Respondent utilises a mix of camcorders including cameras that record directly to DVD disc and memory sticks. Regardless of whether an incident occurs or not the footage from camcorders should be kept at the correctional centre until July each year before being sent to archives. This is in accordance with the Respondent's policy for managing video evidence.

Consideration

1. On the basis of the evidence provided on behalf of the Respondent I am satisfied that no other video footage is held by the Respondent. I am satisfied that if it once existed, it has most likely been destroyed - either in accordance with the policy or otherwise.

1. In the circumstances, the Respondent should not be required to undertake any further searches or any other action in relation to the Applicant's request.

Conclusion and Orders

1. For the reasons set out above I have found that the Respondent's decision in regard to the videos is not the correct and preferred decision and should be set aside.

1. The correct and preferable decision in this matter is to vary the decision under review to determine that within 30 days from the publication to these reasons the Respondent is provide the Applicant with a reasonable opportunity to inspect the footage of the videos identified as DVD WCCVID.097 WCCVID.099 and WCCVID.098.

1. In regard to the remaining information in dispute I have found that the decision of the Respondent is the correct and preferable decision and should be affirmed.

1. Accordingly, I make the following orders:

1. The decision of the Respondent in regard to the videos identified as WCCVID.097, WCCVID.098 and WCCVID.099 is set aside.

2. In substitution thereof a decision is made to grant the Applicant access to view the videos. Within 30 days from the publication of these reasons the Respondent is to provide the Applicant with a reasonable opportunity to inspect the footage of the videos.

3. The decision of the Respondent is otherwise affirmed.

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Decision last updated: 21 October 2013