‘EB8’ and Department of Justice and Community Safety (Freedom of Information) [2022] VICmr 43 (17 May 2022)

All references to legislation in this document are to the Freedom of Information Act 1982 (Vic) (FOI Act) unless otherwise stated.

Notice of Decision

I have conducted a review under section 49F of the Agency’s decision to refuse access to documents requested by the Applicant under the FOI Act.

My decision on the Applicant’s request is the same as the Agency’s decision.

I am satisfied the documents are exempt from release under sections 31(1)(a), 31(1)(d), 33(1), and 38 in conjunction with section 104ZZA of the Corrections Act 1986 (Vic) (Corrections Act).

As I am satisfied it is not practicable to provide the Applicant with an edited copy of the documents with exempt information deleted in accordance with section 25, access to documents is refused in full.

The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

My reasons for decision follow.

Joanne Kummrow

Public Access Deputy Commissioner

17 May 2022

Reasons for Decision

Background to review

1. The Applicant made a request to the Agency seeking access to the following documents:

CCTV footage and/or any other type of footage including from body worn cameras relating to the assault on a prisoner by a prison officer at [Prison] on the [Date].

I am also seeking any incident reports and the entire document package relating to the same incident.

2. The Agency identified closed-circuit television (CCTV) footage, body worn camera footage and an incident package comprising 41 pages falling within the terms of the Applicant’s request. Access was refused in full under sections 31(1)(a), 31(1)(d), 33(1) and 38 in conjunction with section 104ZZA of the Corrections Act. The Agency’s decision letter sets out the reasons for its decision.

Review application

3. The Applicant sought review by the Information Commissioner under section 49A(1) of the Agency’s decision to refuse access.
4. During the review, the Applicant indicated they do not seek access to names and images of third parties. Accordingly, this information is irrelevant information for the purposes of section 25, which is discussed below.
5. I have examined a copy of the documents subject to review.
6. During the review, the Agency sought to rely on an additional exemption under section 30(1) in relation to the ‘incident package’.
7. The Applicant and the Agency were invited to make a written submission under section 49H(2) in relation to the review.
8. I have considered all communications and submissions received from the parties.
9. In undertaking my review, I have had regard to the object of the FOI Act, which is to create a general right of access to information in the possession of the Government or other public bodies, limited only by exceptions and exemptions necessary to protect essential public interests, privacy and business affairs.
10. I note Parliament’s intention the FOI Act must be interpreted so as to further the object of the Act and any discretions conferred by the Act must be exercised, as far as possible, so as to facilitate and promote the disclosure of information in a timely manner and at the lowest reasonable cost.

Review of exemptions

Section 38 – Documents to which a secrecy provision applies

11. Section 38 provides a ‘document is an exempt document if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind, whether the prohibition is absolute or is subject to exceptions or qualifications’.
12. For section 38 to apply, the relevant enactment must be formulated with such precision that it specifies the actual information sought to be withheld.
13. The Agency refused access to certain documents under section 38 in conjunction with section 104ZZA of the Corrections Act.
14. Section 104ZZA of the Corrections Act provides:

A person who is or has been a relevant person must not use or disclose personal or confidential information unless that use or disclosure is authorised under section 104ZY or 104ZZ.

Penalty: 120 penalty units.

15. The term ‘personal and confidential information’ is defined in section 104ZX of the Corrections Act and includes the following, which I consider are relevant in this matter:

(a)     information relating to the personal affairs of a person who is or has been an offender or a prisoner;

…

(c)     information –

(i)     that identifies any person or discloses his or her address or location or a journey made by that person; or

(ii)    from which the person’s identity, address or location can reasonably be determined.

….

(i)     information concerning the management of prisons;

(j)     information concerning –

(i)     security systems and security measures in, or in relation to, a prison;

….

16. The phrase ‘relevant person’ is set out in Schedule 5, and includes ‘[a] person employed in the Department under Part 3 of the Public Administration Act 2004’.
17. In summary, section 104ZZA of the Corrections Act operates to protect the personal privacy of individuals who are identified in documents generated in connection with the management and administration of the corrections system. The section imposes strict confidentiality requirements on Agency officers, among others, which apply in all but certain limited circumstances.
18. In its decision letter, the Agency states the following information fits within the definition of ‘personal or confidential information’:

1. 1. the names of staff, their titles and signatures;
   2. the names and Corrections Reference Numbers (CRNs) of prisoners; and
   3. the images of individuals.

19. The documents subject to review are incident reports and related documents completed by prison staff in relation to an incident that occurred within a prison and footage that captures the incident.
20. As stated above, the Applicant does not seek access to names and images of third parties. However, in this matter, I have concluded that the types of information in the documents that could identify third parties are broad and go beyond a name or image.
21. As such, I am satisfied the documents include information that identifies third parties directly, such as their names, signatures, position titles, CRNs, locations and images. However, I also consider information that concerns third parties, but that does not identify them directly still amounts to personal affairs information. This is because each document concerns an incident involving a prisoner, and concerns the personal affairs of that individual even if information that expressly identifies them, or other persons, is deleted from the document.
22. From my review of the documents, I am satisfied certain information is exempt from release under section 38 for the following reasons:

1. 1. I am satisfied the Corrections Act is an Act in force for the purposes of section 38.
   2. Section 104ZZA of the Corrections Act is formulated with sufficient precision to identify information in relation to which a prohibition on disclosure applies.
   3. I am satisfied the documents contain information relating to the personal affairs of a person who is or has been a prisoner, and that identifies persons in the context of documents created by Corrections Victoria, which falls within the definition of ‘personal or confidential information’ in section 104ZX of the Corrections Act and is information to which the secrecy provision in that Act applies.
   4. I am satisfied the incident reports and related documents contain information concerning the management of the prison and security measures in the prison.
   5. I am also satisfied the purpose and content of the footage, which was captured by CCTV security cameras in the prison and body worn camera footage, directly concerns the management of the prison and forms a key part of its security system and security measures under section 104ZX(i) and (j)(i) of the Corrections Act.
   6. The Corrections Act prohibits disclosure of such information and unauthorised disclosure is an offence subject to a penalty.

23. The secrecy provision in section 104ZZA of the Corrections Act is also subject to exceptions outlined in sections 104ZY and 104ZZ, which permit the release of ‘personal or confidential information’ in certain circumstances. However, I do not consider that any of the exceptions in sections 104ZY or 104ZZ of the Corrections Act apply in the circumstances. This includes the exception in section 104ZY(2)(b) for disclosure with the authorisation or at the request of the person to whom the information relates. In this case, the Applicant is not the person to whom the information relates.
24. The Schedule of Documents in Annexure 1 sets out my decision in relation to section 38.

Section 31(1)(a) – Disclosure of documents that would prejudice an investigation or the enforcement or proper administration of the law

25. Section 31(1)(a) provides a document is an exempt document if its disclosure under the FOI Act would or would be reasonably likely to prejudice the investigation of a breach or possible breach of the law, or prejudice the enforcement or proper administration of the law in a particular instance. Section 31(1)(a) is subject to other provisions in section 31.
26. The phrase ‘reasonably likely’ means there is a real chance of an event occurring and it is not fanciful or remote.[1]
27. ‘Prejudice’ means to hinder, impair or undermine, and includes actual prejudice as well as impending prejudice.^[2]
28. ‘In a particular instance’ does not require a single specific investigation. This phrase can encompass specific, identified aspects of law, administration of law or investigations of breaches or potential breaches of law.^[3]
29. Section 31(1)(a) may apply in relation to either a particular investigation, or the enforcement or proper administration of the law more generally.
30. ‘Proper administration of the law’ includes the manner in which the law is administered, including regulatory, monitoring and compliance activities.[4]
31. The Supreme Court of Victoria in Knight v Corrections Victoria[5] held:

It is clear from the terms of 31(1) that its provisions, and especially s 31(1)(a), are capable of applying to documents concerning the administration and management of prisons generally and concerning individual prisoners specifically. The tribunal has so decided on a number of occasions, including one where it upheld a decision to refuse to give access to a prisoner to information about himself.

CCTV and body worn camera footage

32. Having carefully reviewed the footage, I accept its disclosure would prejudice the proper administration of the Corrections Act with respect to the security and management of prisons and responses to incidents of this nature.
33. For example, disclosure of information regarding prison officer locations and watch positions within the prison would be reasonably likely to prejudice the effectiveness of methods used to assist in managing and maintaining the security and good order of the prison.
34. In the context of disclosure under the FOI Act, I accept disclosure of a document in full means the Applicant is free to use or further disseminate the document as they please, which could reasonably involve a document being disseminated and subsequently accessed by prisoners, offenders and/or the general public.
35. Disclosure to the general public, including persons in custody, could compromise the good order of the prison facility if the information were disclosed and distributed.
36. Accordingly, I am satisfied disclosure of the CCTV and body worn camera footage would be reasonably likely to prejudice the proper administration of the law, in this case the Corrections Act, in regard to the management and security of the prison and persons in custody at that facility. As such, I am satisfied the CCTV and body worn camera footage is exempt from release in full under section 31(1)(a).

Other documents

37. Having reviewed the documents in this matter, I accept disclosure would also prejudice the proper administration of the Corrections Act in relation to the recording and investigation of incidents in the prison and processes designed to ensure the security and good order of the prison. I am satisfied this is a ‘particular instance’ in which the administration of the law may be prejudiced.
38. While there is no specific evidence before me to suggest granting access to the documents in full would enable the Applicant to identify methods that would compromise the good order of a prison, I accept such an outcome could reasonably occur if such information were disclosed and became known.
39. Accordingly, I am satisfied disclosure of the documents would be reasonably likely to prejudice the proper administration of the law, in this case, the administration of the Corrections Act in regard to the management and security of a prison and prisoners. Therefore, I am satisfied the documents are exempt under section 31(1)(a).
40. The Schedule of Documents in Annexure 1 outlines my decision on the application of section 31(1)(a) to the relevant documents.

Section 31(1)(d) – Disclosure of documents that would disclose methods or procedures for preventing, detecting, investigating breaches of the law

41. Section 31(1)(d) provides (subject to this section) a document is exempt if its disclosure would, or would be reasonably likely to, ‘disclose methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures’.
42. The exemptions in section 31(1)(d) does not apply to widespread or well-known methods and procedures.[6]
43. It is well known that CCTV and body worn camera footage is used to assist in the prevention, detection, investigation and handling of matters arising out of breaches or evasions of the law within prison facilities. However, what is not well known is the location, number of cameras, timings of recordings and the extent to which the cameras may or may not capture footage of particular areas within the facility.
44. Noting disclosure of information under the FOI Act is unconditional and unrestricted, I consider if information confirming the location, timing of recordings and any other limitations of the cameras within the facility were to be released, it would allow individuals to circumvent the cameras and evade detection.
45. Accordingly, I am satisfied the CCTV and body worn camera footage is exempt under section 31(1)(d).
46. The Schedule of Documents in Annexure 1 outlines my decision on the application of section 31(1)(d) to the relevant documents.

Section 33(1) – Documents affecting personal privacy of third parties

47. A document is exempt under section 33(1) if two conditions are satisfied:

1. 1. disclosure of the document under the FOI Act would ‘involve’ the disclosure of information relating to the ‘personal affairs’ of a person other than the Applicant (a third party);^[7] and
   2. such disclosure would be ‘unreasonable’.

Do the documents contain personal affairs information of individuals other than the Applicant?

48. Information relating to a person’s ‘personal affairs’ includes information that identifies any person or discloses their address or location. It also includes any information from which this may be reasonably determined.^[8]
49. A document will disclose a third party’s personal affairs information if it is capable, either directly or indirectly, of identifying that person. As the nature of disclosure under the FOI Act is unrestricted and unconditional, this is to be interpreted by reference to the capacity of any member of the public to identify a third party.^[9]
50. I am satisfied the documents include information that explicitly identifies third parties, such as names, addresses, locations and contact details. However, I also consider information that concerns third parties but does not expressly deal with their names, addresses, locations or contact details still amounts to personal affairs information in the particular circumstances of this matter.

Would disclosure of the personal affairs information be unreasonable?

51. The concept of ‘unreasonable disclosure’ involves balancing the public interest in the disclosure of official information with the personal interest in privacy in the particular circumstances of a matter.
52. In Victoria Police v Marke,^[10] the Victorian Court of Appeal held there is ‘no absolute bar to providing access to documents which relate to the personal affairs of others’. Further, the exemption under section 33(1) ‘arises only in cases of unreasonable disclosure’ and ‘[w]hat amounts to an unreasonable disclosure of someone’s personal affairs will necessarily vary from case to case’.^[11] The Court further held, ‘[t]he protection of privacy, which lies at the heart of [section] 33, is an important right that the FOI Act properly protects. However, an individual’s privacy can be invaded by a lesser or greater degree’.^[12]
53. In determining whether disclosure of the personal affairs information would be unreasonable in the circumstances, I have considered the following factors:

1. 1. the nature of the personal affairs information;
   2. the circumstances in which the information was obtained;
   3. the Applicant’s interest in the information and whether their purpose for seeking the information is likely to be achieved;
   4. whether any public interest would be promoted by release of the personal affairs information;
   5. the likelihood of disclosure of information, if released;
   6. whether the individuals to whom the information relates object, or would be likely to object, to the release of the information; and
   7. whether disclosure of the information would or would be reasonably likely to endanger the life or physical safety of any person.^[13]

54. On balance of the above factors, I am satisfied it would be unreasonable to release the personal affairs information in the documents in the circumstances of this matter for the following reasons:

1. 1. The personal affairs information in the documents is personal in nature as it relates to an incident involving a prisoner in a sensitive environment.
   2. The Applicant was not involved in the incident and is an unrelated third party.
   3. I am satisfied it is reasonably likely the information in the documents, if released in this case, would be more widely disseminated. Given the sensitive nature of the personal affairs information in the documents, I am not satisfied the public interest would be served by such wider disclosure.
   4. It is reasonably likely the relevant third parties would object to release of their personal affairs information under the FOI Act, particularly to an uninvolved third party and where dissemination is reasonably likely.
   5. There is a public interest in disclosure of information, where it concerns incidents in custodial facilities. For example, disclosure of CCTV and body worn camera footage can promote transparency and accountability in relation to the use of force in prisons. However, having carefully reviewed the document, I do not consider this public interest outweighs the public interest in privacy for the third party involved.

55. In summary, while the Applicant does not seek access to the names and images of third parties, I am satisfied that even if such information were to be deleted from the documents, the third parties would still be identifiable, and disclosure would be unreasonable in these circumstances.
56. Accordingly, I am satisfied the documents are exempt under section 33(1).
57. My decision in relation to section 33(1) is set out in the Schedule of Documents at Annexure 1.

Section 30(1) – Internal working documents

58. Given I am satisfied the documents are exempt under the above exemptions, it is not necessary for me to also consider the application of section 30(1) to the documents.

Section 25 – Deletion of exempt or irrelevant information

59. Section 25 requires an agency to grant access to an edited copy of a document where it is practicable to delete exempt or irrelevant information and the applicant agrees to receiving such a copy.
60. Determining what is ‘practicable’ requires consideration of the effort and editing involved in making the deletions ‘from a resources point of view’[14] and the effectiveness of the deletions. Where deletions would render a document meaningless, they are not ‘practicable’, and release of the document is not required under section 25.[15]
61. As noted above, the Applicant does not seek access to names and images of third parties. Such information is irrelevant information for the purposes of this review.
62. I have considered the effect of deleting names and images of third parties from the documents. In my view, while such information could be redacted from the documents, the documents would still concern the personal affairs of the prisoner to whom the documents relate. Further, the remaining information in the documents is exempt under sections 31(1)(a), 31(1)(d), 33(1) and 38. As such, it is not practicable to delete irrelevant information (names and images) from the documents.
63. I have also considered the effect of deleting exempt information from the documents. In my view, it is not practicable for the Agency to delete the exempt information as the documents are exempt in their entirety.

Conclusion

64. On the information before me, I am satisfied the documents are exempt from release under sections 31(1)(a), 31(1)(d), 33(1), and 38 in conjunction with section 104ZZA of the Corrections Act.
65. As I am satisfied it is not practicable to provide the Applicant with an edited copy of the documents with exempt and irrelevant information deleted in accordance with section 25, access to documents is refused in full.
66. The Schedule of Documents in Annexure 1 sets out my decision in relation to each document.

Review rights

67. If either party to this review is not satisfied with my decision, they are entitled to apply to the Victorian Civil and Administrative Tribunal (VCAT) for it to be reviewed.[16]
68. The Applicant may apply to VCAT for a review up to 60 days from the date they are given this Notice of Decision.[17]
69. The Agency may apply to VCAT for a review up to 14 days from the date it is given this Notice of Decision.[18]
70. Information about how to apply to VCAT is available online at www.vcat.vic.gov.au. Alternatively, VCAT may be contacted by email at admin@vcat.vic.gov.au or by telephone on 1300 018 228.
71. The Agency is required to notify the Information Commissioner in writing as soon as practicable if either party applies to VCAT for a review of my decision.[19]

Annexure 1 – Schedule of Documents

Endnotes

[1] Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 at [65] quoting Binnie v Department of Agriculture and Rural Affairs [1989] VR 836.

[2] Ibid, Bergman at [66], referring to Sobh v Police Force of Victoria [1994] VicRp 2; [1994] 1 VR 41 (Nathan J) at [55].

[3] Cichello v Department of Justice (Review and Regulation) [2014] VCAT 340 at [24]; Bergman v Department of Justice Freedom of Information Officer [2012] VCAT 363 at [69].

[4] Cichello v Department of Justice (Review and Regulation) [2014] VCAT 340 at [23]; Croom v Accident Compensation Commission (1989) 3 VAR 441, affirmed on appeal [1991] VicRp 72; [1991] 2 VR 322.

[5] [2010] VSC 338 at [73].

[6] XYZ v Victoria Police [2010] VCAT 255 at [177].

[7] Sections 33(1) and 33(2).

[8] Section 33(9).

[9] O’Sullivan v Department of Health and Community Services (No 2) [1995] 9 VAR 1 at [14]; Beauchamp v Department of Education [2006] VCAT 1653 at [42].

[10] [2008] VSCA 218 at [76].

[11] Ibid.

[12] Ibid at [79].

[13] Section 33(2A).

[14] Mickelburough v Victoria Police (General) [2009] VCAT 2786 at [31]; The Herald and Weekly Times Pty Limited v The Office of the Premier (General) [2012] VCAT 967 at [82].

[15] Honeywood v Department of Human Services [2006] VCAT 2048 at [26]; RFJ v Victoria Police FOI Division (Review and Regulation) [2013] VCAT 1267 at [140] and [155].

[16] The Applicant in section 50(1)(b) and the Agency in section 50(3D).

[17] Section 52(5).

[18] Section 52(9).

[19] Sections 50(3F) and 50(3FA).