Potier v Department of Corrective Services [2011] NSWADT 294

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Potier v Department of Corrective Services [2011] NSWADT 294 Hearing dates: On the papers Decision date: 13 December 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The determination is affirmed insofar as it relates to the documents identified as item 2 of Mr Potier's FOI request and documents 5 and 6 in response to item 6 of Mr Potier's FOI request. 2. The determination is set aside insofar as it relates to document 3 in response to item 6 of Mr Potier's FOI request to the extent referred to in these reasons. 3. The application is remitted for redetermination by the Respondent insofar as it relates to items 7 and 8 of Mr Potier's FOI request. The redetermination is to be completed and a copy of the determination given to Mr Potier by Friday 27 January 2012. 4. The matter is to be listed for further directions at 1.30pm on Tuesday 14 February 2012 Catchwords: Access to documents - personal affairs - legal professional privilege - operations of agencies Legislation Cited: Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Cases Cited: Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429 GU v Commissioner, Department of Corrective Services [2003] NSWADT 176 Howell v Macquarie University [2008] NSWCA 26 McGuirk v NSW Police [2007] NSWADT 120 NSW Police v District Court (NSW) (1993) 31 NSWLR 606 Potier v Department of Corrective Services (GD) [2011] NSWADTAP 28 Potier v Department of Corrective Services [2008] NSWADT 278 Potier v Department of Corrective Services [2011] NSWADT 53 Priest v NSW [2006] NSWSC 1281 Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 Re Curtin and Pine Rivers Shire Council [1997] QICmr 18; (1998) 4 QAR 195 Saleam v Director General, Department of Community Services [2002] NSW ADT 41 Category: Principal judgment Parties: Malcolm Potier (Applicant) Department of Corrective Services (Respondent) Representation: M Potier (Applicant in person) Department of Corrective Services (Respondent) File Number(s): 103076

REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr Potier applied to the Department of Corrective Services ("the Respondent") under the Freedom of Information Act 1989 ("the FOI Act") for access to documents held by the Respondent ("Mr Potier's FOI request"). 2Following negotiations between the parties the scope of Mr Potier's FOI request was narrowed. Mr Potier sought: 1. Copies of all communications, file notes and other related documents, be they received or sent by any medium, including, but not limited to electronic means relating to the applicant's initial request for the NSW Department of Corrective Services of the 15th May 2009 for Freedom of Information Act Application Forms and the Departments reply of the 17th September 2009. 2. All documents, of any nature, prepared or received at any time by any persons either previously or presently in the employ of the NSW Department of Corrective Services concerning the NSW Police Investigation in November 2001 to August 2006 into an offence said to have been committed by the applicant between November 2001 and May 2002 at the Long Bay Jail. 3. Copies of any recordings made in any medium, at any time, made by any persons either previously or presently in the employ of the NSW Department of Corrective Services concerning the NSW Police Investigation in November 2001 to August 2006 into an offence said to have been committed by the applicant between November 2001 and May 2002 at the Long Bay Jail. 4. A list of all items that may exist covered by items 23 above that exemption is claimed from disclosure. 5. Copies of all communications, of any kind, between the servants and agents of the NSW Commissioner for Police and the NSW Department of Corrective Services concerning the provision of items covered by items 23 above. 6. Copies of all documents prepared at any time by any persons in the employ or associated with the NSW Department of Corrective Services, including, but not limited to the Serious Offenders Review Council, concerning the applicant's complaint to the Minister for Prisons in 2008 alleging misconduct by Members of Staff of the NSW Department of Corrective Services at the Parklea Correctional Centre. 7. Classification documents prepared by the servants and agents of the NSW Department of Corrective Services.

The initial Determination 3The initial determination of Mr Potier's FOI request was made by the Respondent's Freedom of Information & Privacy Officer, Ms Beadle. Ms Beadle determined to release some documents that she found to fall within the scope of Mr Potier's request and to withhold others. It is common ground that Ms Beadle did not consider all aspects of Mr Potier's request. 4Mr Potier lodged an application for an internal review of Ms Beadle's determination.

Internal Review determination 5The Manager of the Respondent's Freedom of Information & Privacy Unit, Ms Fulford, undertook an Internal Review of the determination of Mr Potier's original application. In relation to the above mentioned items Ms Fulford found: Item 1 "You have been provided with the two documents covered by the scope of your application. There are no other documents." Item 2 "From the response in your letter received on 3/2/10, I understand that you are not appealing the determination regarding documents 1 and 2. I note that documents 1 and 2 are the same as documents 11 and 12, which were covered by the scope of your application 06/07-169. Further I note that the scope of application 06/07-169 (which was the subject of an internal review in April 2007) covered documents prepared by Officer Donaldson. Another search was undertaken and no documents were located. In particular, I note your comments in your recent letters regarding the reports written by Officer Donaldson. I have been advised by the Corrections Intelligence Group (CIG) that Officer Donaldson wrote his reports whilst at the Metropolitan Medical Transient Centre (MMTC) which has since closed. Neither CIG nor Corporate Records has been able to locate the archival material for the intelligence office of the MMTC. Accordingly, I advise that the original reports and any other related documents are lost. Nevertheless, I can advise that the contents of the original reports were incorporated into document 1, also known as, information report 0033.02 [which has been exempted under clause 4(3B)]. Pursuant to section 28(3) of the FOI Act, I decline to give any further details regarding document 1. Item 3 "Another search was undertaken and no documents were located. See search comments for item 2." Item 4 "No such document exists. Under the FOI Act, agencies are not required to create documents." Item 5 "Another search was undertaken and no documents were located. See search comments for item 2." Item 6 "Documents 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 were identified as being located in response to item 6 of your application and were partially or fully exempted/denied. The scope of your internal review application appears to include only documents 3 and 6.

Document 3 I understand that you have not asked for the determination of this document to be reviewed, I have not reviewed the entire document but nevertheless, I have released extra material on page 208. A new copy is enclosed. Upon examination of this document I can see that the material that was exempted under clause 4(1)(e) had been identified on your copy. However, I note that information was not provided on your copy of document 3 to identify the clause/section applied to the remaining "blanks". I apologise for this oversight. You will note that pages 208 to 218 have had material deleted under section 25(1)(c) of the FOI Act. That section was reproduced at the end of the determination letter. The determination letter described the court transcripts from which excerpts had been taken for use in document 3. Those excerpts had been deleted under section 25(1)(c). Document 6 This document is partially exempted. I consider that the exempted material would be privileged from production in legal proceedings on the grounds of legal professional privilege. Accordingly, I have exempted the material under clause 10(1) of Schedule 1 to the FOI Act. Item 7 "From the response in your letter received on 3/2/10, I understand that you believe that the LSI-R that was referred to on page 220 of the SORC Minutes of 21 April 2009 should have been included in the scope of your application. I have examined the SORC Minutes and note the reference to the LSI-R on page 220 but also note that on page 221 the LSI-R is not one of the documents listed under the heading "MATERIALS ATTACHED". If the LSI-R had been attached to the Minutes of 21 April 2009, it would have been included in the scope of your application. Accordingly, for the purposes of this review I have not obtained a copy of the LSI-R and made a determination of that document. If you would like a determination to be made regarding the LSI-R, you will need to lodge a new application for that document. However, I advise that applicants are always denied access to copies of LSI-Rs, as they are psychometric instruments."

Preliminary issues determination 6I have previously dealt with preliminary issues in regard to this application and my decision is recorded as Potier v Department of Corrective Services [2011] NSWADT 53. 7Mr Potier's application for leave to appeal with respect to the decision was refused: Potier v Department of Corrective Services (GD) [2011] NSWADTAP 28. 8In my decision I noted at paragraph [4]: The Respondent's determination did not address an item that was included in Mr Potier's original application. That item ("the Junee contract issue") requested: 2. A copy of all contracts of any nature and associated documentation that are currently binding between the NSW Department of Corrective Services and those responsible for the running and administration of the Junee Correctional Centre in the State of New South Wales. 9I found that the Junee contract issue is within the scope of Mr Potier's application to the Tribunal and recommended that Mr Potier be given access to the Junee contract. That access has been provided. 10On 31 March 2011, following my recommendation that Mr Potier be given access to the Junee contract, Ms Fulford made a decision to grant the Mr Potier access to a copy of the publicly available version of the Junee contract and, by letter of that date, advised Mr Potier of that decision and provided him with a copy of that document. 11The Respondent's has conceded that there was a second item included in Mr Potier's original application that was not addressed by the Respondent's determination. Item 8 of Mr Potier's request sought: "Details by reference to statistical analysis of all instances of injuries received by inmates at any NSW Correctional centres for the last 5 years allocated to that Correctional Centre as a result of an interaction between inmates and servants of the Commissioner for the NSW Department of Corrective Services."

The Remaining Issues 12This decision deals with the matters that I understand remain for determination. At the Planning Meeting held on 3 May 2011 I directed Mr Potier to file and serve an outline of issues that remain in dispute. He has done so, however he has not done this by reference to the original application. Rather, he has made submissions by reference to his submission dated 3 August 2010, which in turn referred to the Respondent's submissions of 21 July 2010. He advised that he considers that a number of issues remain outstanding. 13In his submissions Mr Potier has taken issue with many aspects of the Respondent's conduct of the determination and questions the Respondent's motive. He has repeatedly complained that the Respondent's search for documents falling within the scope of his application was inadequate. He has inferred that the Respondent is deliberately withholding certain documents. 14I have previously dealt with the issue of the Respondent's interpretation of the scope of Mr Potier's requests and the sufficiency of the Respondent's search for documents falling within the scope of the request. I do not propose to revisit those issues. 15The Respondent has also provided further submissions in reply and reasserted its claim that the remaining documents that have not been given to Mr Potier are either outside the scope of his application or are exempt. 16The Respondent has provided the Tribunal with a copy of several of the documents over which exemption is claimed. I have considered those documents as part of this process.

Applicable legislation 17Section 5 of the FOI Act provides that the objects of the FOI Act are to extend, as far as possible, the rights of the public to obtain access to information held by the Government. Section 16 of the FOI Act provides that a person has a legally enforceable right to be given access to an agency's documents in accordance with the FOI Act. It is common ground that Respondent is an 'agency' within the parameters of section 16. 18The legally enforceable right to be given access to documents is subject only to such restrictions as are reasonably necessary for the proper administration of Government. The discretions conferred by the FOI Act shall be exercised, as far as possible, so as to facilitate and encourage the disclosure of information. 19Section 24(1) of the FOI Act provides that after considering an application for access to a document, the agency is to determine whether access to the document is to be given or refused, and any charge payable for giving access and/or dealing with the application. Under section 25(1)(a) of the FOI Act, an agency has discretion to refuse access to a document. Grounds on which access may be refused are set out in section 25 and include that a document is 'an exempt document'. An 'exempt document' is defined in section 6 to mean (among other things) a document referred to in any one or more of the provisions of Schedule 1 to the FOI Act. Pursuant to section 61 of the FOI Act the agency has the burden of establishing that its determination was justified. 20Section 25 of the FOI Act provides: 25 Refusal of access (1) An agency may refuse access to a document: (a) if it is an exempt document, or (a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions, or (b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or (b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency's policies and practices, or (c) if it is a document that is usually available for purchase, or (d) if it is a document that genuinely forms part of the library material held by the agency. ... 21Section 28(3) of the FOI Act provides: 28 Notices of determination ... (3) An agency is not required to include in a notice any matter that is of such a nature that its inclusion in the notice would cause the notice to be an exempt document. 22Clause 4 of Schedule 1 of the FOI Act provides: 4 Documents affecting law enforcement and public safety (1) A document is an exempt document if it contains matter the disclosure of which could reasonably be expected: ... (e) to prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or ... (3B) A document is an exempt document if it is a document that has been created by the Corrections Intelligence Group of the Department of Corrective Services in the exercise of its functions concerning the collection, analysis or dissemination of intelligence. 23Clause 6(1) of Schedule 1 of the FOI Act provides: 6 Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (whether living or deceased). (2) A document is not an exempt document by virtue of this clause merely because it contains information concerning the person by or on whose behalf an application for access to the document is being made. 24Clause 10 of Schedule 1 of the FOI Act provides: 10 Documents subject to legal professional privilege (1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. (2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document. 25Clause 16 of Schedule 1 of the FOI Act provides: 16 Documents concerning operations of agencies A document is an exempt document if it contains matter the disclosure of which: (a) could reasonably be expected: (i) to prejudice the effectiveness of any method or procedure for the conduct of tests, examinations or audits by an agency, or ... (iv) to have a substantial adverse effect on the effective performance by an agency of the agency's functions, or ... and (b) would, on balance, be contrary to the public interest.

The identified documents 26In her initial determination Ms Beadle identified a number of documents as falling within the scope of Mr Potier's FOI request. 27She advised that the Respondent does not hold any documents/recordings in relation to items 3, 4 and 5 of Mr Potier's FOI request. 28She identified two documents as falling within the scope of item 2 of Mr Potier's FOI request. These documents are information reports 0033.02 dated 11/01/2002 and 1232.00 dated 30/8/2000. 29Exemption was claimed pursuant to clause 4(3B) of Schedule 1 of the FOI Act, on the basis that the documents were created by the Corrections Intelligence Group of the Department of Corrective Services in the exercise of its functions concerning the collection, analysis or dissemination of intelligence. Pursuant to section 28(3) of the FOI Act, the Respondent declines to give any further details regarding that material. 30Ms Beadle identified a number of documents as falling within the scope of items 6 & 7 of Mr Potier's FOI request. The first of those documents is referred to as 'Document 3 (SORC Minutes dated 21/4/09 with attachments)'. 31Exemption was claimed pursuant to clauses 6(1) and 4(1)(e) of Schedule 1 to the FOI Act. It was also partially denied under section 25(1)(c) of the FOI Act. In relation to that document Ms Beadle noted: This document contains information concerning the personal affairs of people other than yourself that I consider would be unreasonable to release. It also contains security information that I consider if released, may prejudice the effectiveness of any method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. This document also contains excerpts from Transcripts of the Sentences handed down by Judges Wood CJ, Studdert J and Bell J on 5 October 2001; Judge Hosking on 10 May 2002; Judges Wood CJ, Simpson J and Bell J on 25 August 2004; Judges Grove J, Howie J and Rothman J on 6 July 2005; Judges Basten JA, Simpson J and Judge Buddin J on 16 September 2005; and Judge Shadbolt on 13 November 2006. This information is denied under section 25(1)(c) of the FOI Act on the grounds that transcripts of a court case, or parts thereof, are available for purchase from the Attorney General's Department. ... Pursuant to section 28(3) of the FOI Act, I decline to give any further details regarding the exempted material. 32Ms Beadle identified documents referred to as Documents 4, 5 & 6 as falling within the scope of item 6 of Mr Potier's FOI request. 33Exemption was claimed in relation to Documents 4 & 5 pursuant to under clause 6(1) of Schedule 1 to the FOI Act on the basis that those documents contain information concerning the personal affairs of people other than Mr Potier that Ms Beadle considered would be unreasonable to release. Exemption was claimed in relation to Documents 6 under clause 10(1) of Schedule 1 to the FOI Act on the basis that the document contains material that would be privileged from production in legal proceedings on the ground of legal professional privilege. 34Ms Beadle also identified the following documents as falling within the scope of Item 6 of Mr Potier's FOI request: Document 7 Email from L Ball to M Esthvez dated 20/7/09 Document 8 Email from L Ball to M Estevez, M Pounder, C Horgan dated 28/4/09 Document 9 Email from M Estevez to M Pounder dated 20/4/09 Document 10 Email from C Horgan to L Ball, M Pounder dated 13/2/09 Document 11 Email from L Ball to M Estevez, M Pounder dated 11/2/09 Document 12 Report prepared by C Horgan dated 6/1/09 35Exemption was claimed in relation to these documents under clause 10(1) of Schedule 1 to the FOI Act on the basis that the documents contain material that would be privileged from production in legal proceedings on the ground of legal professional privilege. 36In her internal review determination Ms Fulford addressed aspects of Mr Potier's FOI request that were not covered by Ms Beadle. 37She indicated that two documents had been identified as falling within the scope of Item 1 of Mr Potier's FOI request and that he had been provided with copies of both of those documents. She stated that there are no other documents within the scope of Item 1. 38In relation to item 2 of Mr Potier's FOI request she stated: From the response in your letter received on 3/2/10, I understand that you are not appealing the determination regarding documents 1 and 2. I note that documents 1 and 2 are the same as documents 11 and 12, which were covered by the scope of your application 06/07-169. Further I note that the scope of application 06/07-169 (which was the subject of an internal review in April 2007) covered documents prepared by Officer Donaldson. Another search was undertaken and no documents were located. In particular, I note your comments in your recent letters regarding the reports written by Officer Donaldson. I have been advised by the Corrections Intelligence Group (CIG) that Officer Donaldson wrote his reports whilst at the Metropolitan Medical Transient Centre (MMTC) which has since closed. Neither CIG nor Corporate Records has been able to locate the archival material for the intelligence office of the MMTC. Accordingly, I advise that the original reports and any other related documents are lost. Nevertheless, I can advise that the contents of the original reports were incorporated into document 1, also known as, information report 0033.02 [which has been exempted under clause 4(3B)]. Pursuant to section 28(3) of the FOI Act, I decline to give any further details regarding document 1. 39In relation to item 3 of Mr Potier's FOI request she stated that another search was undertaken and no documents were located. 40In relation to item 4 of Mr Potier's FOI request Ms Fulford stated that no such document exists and she asserted that under the FOI Act, agencies are not required to create documents. 41In relation to item 5 of Mr Potier's FOI request she stated that another search was undertaken and no documents were located. 42In relation to item 6 of Mr Potier's FOI request Ms Fulford stated: Documents 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 were identified as being located in response to item 6 of your application and were partially or fully exempted/denied. The scope of your internal review application appears to include only documents 3 and 6.

Document 3 I understand that you have not asked for the determination of this document to be reviewed, I have not reviewed the entire document but nevertheless, I have released extra material on page 208. A new copy is enclosed. Upon examination of this document I can see that the material that was exempted under clause 4(1)(e) had been identified on your copy. However, I note that information was not provided on your copy of document 3 to identify the clause/section applied to the remaining "blanks". I apologise for this oversight. You will note that pages 208 to 218 have had material deleted under section 25(1)(c) of the FOI Act. That section was reproduced at the end of the determination letter. The determination letter described the court transcripts from which excerpts had been taken for use in document 3. Those excerpts had been deleted under section 25(1)(c).

Document 6 This document is partially exempted. I consider that the exempted material would be privileged from production in legal proceedings on the grounds of legal professional privilege. Accordingly, I have exempted the material under clause 10(1) of Schedule 1 to the FOI Act. 43In relation to item 7 of Mr Potier's FOI request Ms Fulford stated: From the response in your letter received on 3/2/10, I understand that you believe that the LSI-R that was referred to on page 220 of the SORC Minutes of 21 April 2009 should have been included in the scope of your application. I have examined the SORC Minutes and note the reference to the LSI-R on page 220 but also note that on page 221 the LSI-R is not one of the documents listed under the heading "MATERIALS ATTACHED". If the LSI-R had been attached to the Minutes of 21 April 2009, it would have been included in the scope of your application. Accordingly, for the purposes of this review I have not obtained a copy of the LSI-R and made a determination of that document. If you would like a determination to be made regarding the LSI-R, you will need to lodge a new application for that document. However, I advise that applicants are always denied access to copies of LSI-Rs, as they are psychometric instruments.

Mr Potier's case 44Mr Potier submits that there should be an adverse finding against the Respondent over its general conduct in this matter. He submits that there is the presumption in favour of disclosure. He says that it is clear that the Respondent is seeking not to comply with its legislative obligations. He submits that at most junctures the Respondent sought to withhold documents, or not bother to look for them, rather than comply with its obligations. 45Mr Potier not only presses his application but also says that he fails to understand the Respondent's reluctance to provide the documents. 46With respect to the Respondent's assertion that it does not need to provide Mr Potier with copies of court transcripts identified as falling within the scope of item 6 of his application Mr Potier submits that the extracts are fairly short. He says that these judgements were both long and detailed. They considered both party's representations and eventual findings of the Court. He says that his FOI request seeks to establish exactly what parts of those judgements have been used in the document. He says that he can obtain copies of transcripts for free, and indeed has obtained many of them. However, he seeks to know which passages were used and asserts that that the document is fully disclosable. 47The Respondent contends that the document for which legal professional privilege is claimed relates to advice being sought from or provided by a legal officer of the Respondent in matters directly pertaining to Mr Potier. As such, the Respondent continues to claim the clause 10 exemption in relation to the relevant documents. 48Mr Potier submitted that it is for the Respondent to prove that the exemption applies. 49In relation to item 7 of his application Mr Potier contends that access should have been provided to an LSI-R report which is mentioned on page 220 of the SORC Minutes, but not listed as one of the attachments to the Minutes on page 221. He argued that his request was for "all documents prepared at any time by any persons in the employ or associated with the Department of Corrective Services (including, but not limited to the serious offenders Review Council) ..." 50He further submitted: "7. The Tribunal will be aware from my previous Hearing, when Corrections Officer Mr Charles Puke-Puke was called to give evidence, that he identified a number of documents that would be considered as a part of the inmate classification process. These included the SORC Reports, the LSI-R document, and other important documents. 8. On the 6th May 2011 I attended an inmate classification meeting. Present were Officer J. Evans - Area Manager to the area I am currently housed at this facility, Officer Tekowhai, of the classification panel and a third unidentified, to me Officer. The meeting was entirely cordial and conducted in a proper fashion. I did however, at the end, ask of Officer Tekowhai what documents would be considered, in addition to the SORC Report and LSI-R document, when my classification was to be considered by the Commissioner, in accordance with the Crimes (Administration of Sentences) Regulations 2001. 9. I was informed, by her, that there were a number of documents that would be considered but Officer Tekowhai was unable to identify which ones they might be. I do not consider her answers to be evasive but as a result of a lack of information, from the Respondents. 10. It is my view that this exchange has, once again, confirmed the evidence of Mr Puke-Puke to this Tribunal in that there are a number of documents to be considered, at classification and the Respondent is being deliberately evasive in their replies to date in denying their existence. 51The Respondent contended that requiring an agency to consider every document mentioned in another document would seriously compromise the ability of an agency as it would substantially and unreasonably divert the resources of the agency. In response to that assertion, Mr Potier submitted that the Respondent should have itemised those documents considered by the Commissioner in his classification decision. This would then permit an assessment of the number of documents affected by the request and whether the task was onerous. 52The Respondent also contends that the LS1-R is a psychometric tool employed to assess offenders. It says that if it were released, its efficacy as a measure of change and of dynamic risk would be compromised. There would be a risk of offenders anticipating the "desired" outcomes and the extent to which that could happen, cannot be controlled, seriously compromising its effectiveness. 53In response to that contention Mr Potier submitted that the Respondent has wrongly classified this document as a psychometric tool. He submits that it is his belief that the LSI-R report is not a psychometric instrument as considered in the case of GU v Commissioner, Department of Corrective Services [2003] NSWADT 176. He stated that on 10 June 2010, at Parklea Correctional Centre, he was informed that an interview for such report would be conducted by the welfare Department of the facility. He contends that welfare officers have no "psychometric" qualifications. 54In any event, Mr Potier states that he fails to see how the disclosure to him of a document concerning him could possibly have a "substantial adverse effect" on the "agency's future functions". He submits that the Respondent's objections are without foundation. 55The Respondent advised Mr Potier that the statistical information sought in Item 8 of his original request for documents did not exist. In relation to that assertion, Mr Potier submitted: "I now state that I have during my period of incarceration witnessed, first hand, a significant number of instances, covered by this item. In each case the servants have to complete, and lodge a document entitled 'use of force". This is also a condition of the Crimes (Administration of Sentences) Regulations 2001. Furthermore I attach extracts from the Management Agreement for the Junee Correctional Centre MHP 1, provided by the Respondent as part of their earlier response to my F.O.I. it is my submission that by reading this exhibit it will be seen that every month statistics have to be prepared, and filed covering, amongst other things, these items."

The Respondent's case 56The Respondent relies on submissions dated 21 July 2010 that were prepared by Ms Singer and further submissions dated 20 June 2011 that were prepared by Mr John Simon.

Court transcripts contained within the SORC Minutes 57The Respondent determined that the substantial portion of the court transcripts contained within the SORC Minutes were exempt, pursuant to section 25(1)(c) of the FOI Act, on the basis that these documents are generally available for purchase. 58The Respondent submits that an agency may refuse to provide a document under the FOI Act if it is publicly available, and can be accessed without resorting to an application under the FOI Act. It contends that court transcripts fall within that exemption. 59It argues that the purpose of section 25(1)(c) of the FOI Act is to preserve those circumstances where an FOI applicant can obtain access to a document by purchasing it from a government agency. If this were not the case, then it would be open to all applicants to seek documents generally available for purchase under the FOI Act, thus avoiding the payment of fees. If an agency were required to provide documents that are publicly available, free of charge or for a fee, it would subvert one of the underlying intentions of the FOI Act. It would allow for all documents which are available for purchase or otherwise publicly available, to be sought under the FOI Act, interfering with the proper administration of government. 60The Respondent submits that section 25(1)(c) must be read in the context of the application that is before the agency for determination; the initial question for the agency is whether the document sought by Mr Potier is one that is usually available for Mr Potier to purchase. The Respondent has determined that the answer to that question is "yes". Thus, as a party to the proceedings, Mr Potier should obtain these transcripts by an application to the Court and the payment of the prescribed fees.

An LSI-R report mentioned in the SORC Minutes 61As noted above, Mr Potier indicated that access should have been provided to an LSI-R report that is mentioned in the SORC Minutes of 21 April 2009. The Respondent determined that the LSI-R report was not listed as an attachment; therefore, it was not within the scope of the application. 62The Respondent further submits that requiring an agency to consider every document mentioned in another document would substantially and unreasonably divert the resources of the agency. It also contends that releasing copies of the LSI-R report would seriously impact on the capacity of staff to measure and reliably detect therapeutic change. In addition, staff would be less able to review and report on an offender's progress. It argues that a good and reliable measurement of risk and change is necessary for the success of programs run by the Respondent. 63Further, the Respondent submits that if the Tribunal considers that the LSI-R report is within the scope of MR Potier's FOI request, it should find that psychometric testing is exempt pursuant to clauses 16(a)(i) and 16(a)(iv) of Schedule 1 to the FOI Act. The Respondent submits that clause 16 protects records connected with various internal processes of an agency that are seen as relying significantly for their effectiveness on the maintenance of strict confidentiality. 64The Respondent submits that for clause 16(a)(i) to be made out, it is sufficient to show that disclosure of the document in question would prejudice the effectiveness of the LSI-R report. For clause 16(a)(iv) to be made out necessitates an examination of the "substantial adverse effect' that the disclosure of the documents in question may have on the agency's future functions. 65The Respondent contends that the LS1-R is a psychometric tool employed to assess offenders. It says that if released, its efficacy as a measure of change and of dynamic risk would be compromised. There would be a risk of offenders anticipating the "desired" outcomes and the extent to which that could happen, cannot be controlled, seriously compromising its effectiveness. 66The Respondent did not provide any evidence to support those assertions. However, it relies on the decision in GU v Commissioner, Department of Corrective Services [2003] NSWADT 176 in which the issue of the "psychometric instruments" was specifically addressed. Deputy President Hennessy found that: 19 The public interest considerations against disclosure are that the validity of the tests could reasonably be expected to be compromised and the agency will lose the opportunity to share information with the scientific community about the results of that testing. In addition, the scientific community would be reluctant to share information with the agency if they knew that they could not keep the tests confidential. 20 If GU were entitled to the test documents and the scoring keys, then any member of the public making an application under the FOI would be entitled to those documents. Those documents would tell a person not only the content of particular tests and the scoring keys (many of which are publicly available) but also the tests which the agency uses and the order in which those tests are administered. This information could reasonably be expected to undermine the validity of the tests. The public interest considerations do not favour disclosure because these tests are extremely valuable in the assessment and treatment of sex offenders. Any diminution in their validity is not in the public interest. 67The Respondent contends that item 2 of Mr Potier's FOI request is, for all relevant purposes, encompassed in the request that was considered by the Tribunal in its decision in Potier v Department of Corrective Services [2008] NSWADT 278. Nevertheless, another search was undertaken and no further documents were located. 68The Respondent says that it does not hold any documents/recordings that fall within the scope of items 3, 4 and 5 of Mr Potier's FOI request.

Legal Professional Privilege 69The Respondent has identified a number of documents falling within the scope of item 6 of Mr Potier's FOI request. The Respondent submits that the withheld documents are exempt pursuant to clause 10 of schedule 1 to the FOI Act. It says that the documents relate to advice being sought from or provided by a legal officer of the Respondent in matters directly pertaining to Mr Potier. It says that it was reasonably contemplated by the Respondent that litigation on the underlying issue might ensue.

Statistical analyses of instances of injuries received by inmates 70The Respondent concedes that it erroneously advised that the statistical information sought in Item 8 of his original request for documents did not exist. 71In a letter dated 14 September 2010 from Ms Singer to the Registrar of the Tribunal Ms Singer indicated that "subsequent research by the writer indicated that the statistical information requested does not exist". However, by letter dated 17 May 2010 Ms Singer had advised Mr Potier, inter alia, that Corrective Services NSW does publish statistics concerning "Inmate on Inmate Assaults" and "Inmate on Officer Assaults". 72It is unclear whether the Respondent is asserting that the statistical information requested does not exist or whether it is asserting that an exemption applies in relation to that material.

Discussion 73The Respondent contends it does not need to comply with item 2 of Mr Potier's FOI request because of the decision in Potier v Department of Corrective Services [2008] NSWADT 278. I do not agree with that assertion. In my view, the request should be read as applying to any documents falling within the scope of the request that were not considered in the earlier application. It is conceivable that some documents falling within the scope could have been created since the date of the request that was the subject of that matter. Nevertheless, it appears that the Respondent undertook another search and no further documents were located. In the circumstances, the Respondent need not undertake any further search in relation to item 2 of Mr Potier's FOI request. 74The Respondent has provided, for consideration by the Tribunal, a copy of the document identified as document 3 in response to item 6 of Mr Potier's FOI request - the SORC Minutes of 21 April 2009. I do not agree with the Respondent's assertion that the reference to court transcripts in that document are exempt from production. As Mr Potier has indicated, he already has access to the transcripts. He is seeking to access the document so that he can see which parts of the transcripts have been considered and recorded in the SORC Minutes. In my view, Mr Potier should be provided a copy of the SORC Minutes that includes the reference to court transcripts on pages 208 - 218. 75It is also my view that some parts of the SORC Minutes that have been asserted as exempt pursuant to clause 6 of schedule 1 to the FOI Act should be released to Mr Potier. 76The phrase "personal affairs" is not defined in the FOI Act. The case law suggests that the phrase "personal affairs" should be interpreted broadly, and that the type of information that can constitute "personal affairs" will depend on the circumstances of the case. In NSW Police v District Court (NSW) (1993) 31 NSWLR 606 at 625 the term "personal affairs" was interpreted to mean the "composite collection of activities personal to the individual concerned". 77In Re Curtin and Pine Rivers Shire Council [1997] QICmr 18; (1998) 4 QAR 195 at [14] the Commissioner held that "information concerns the 'personal affairs' of a person if it concerns the private aspects of a persons life". 78In Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429 (" Colakovski' ) "at 436, Lockart J said, "it would be inappropriate to attempt to define the meaning of "personal affairs" in some definitive way. It would be unwise to substitute for the word 'personal' some other word such as the word 'private. His Honour further explained that the word 'private' tends to connote confidential or not widely known, while the term "personal affairs" is not confined to "affairs that are private, in the sense of secret to the person". 79Colakovski concerned a request for access to the name and telephone number of a person under the Freedom of Information Act 1982 (Cth). The question was whether this would "involve the unreasonable disclosure of information relating to the personal affairs" of that person under section 41(1) as previously enacted. At 437 Lockhart J stated: "There is a real question as to whether the name and telephone number of a person can answer the description of "information relating to the personal affairs" of that person under s 41(1). Viewed as an abstract conception I would be inclined to the view that it could not, but such questions are not considered in the abstract. The present case must be approached on the basis that the relevant documents containing the deleted material state the names, addresses and telephone numbers of persons making the calls or of the subscriber. Plainly enough it would be revealed from the documents when the telephone calls were made, the telephone numbers from which they emanated, the name of the subscriber, and, at least in some cases the name of the caller and perhaps a pattern of telephone calls. The words "relating to" or "in relation to" are of the widest import and in the context of s 41 it is enough that the information relates to a person's personal affairs." 80Similar reasoning may be applied to the description "information concerning the personal affairs of any person" contained in clause 6 of the FOI Act. 81In the circumstances I am satisfied that the excised parts of the text contain information concerning the personal affairs of a person other than Mr Potier. However, I must also determine whether the release of that information would be unreasonable. 82As to whether or not disclosure of document containing the above information would be 'unreasonable', it is well accepted that this question has at its core public interest considerations: Colakovski . That is a question of fact that involves an examination of all the circumstances related to the document in question, and then a weighing up of the public interest in protecting personal privacy against the public interest in the Applicants (and possibly the wider public) being given access to the document: McGuirk v NSW Police [2007] NSWADT 120 at [31]. 83The comments of the AAT in Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 at [38], have been cited by the Tribunal with approval in Saleam v Director General, Department of Community Services [2002] NSW ADT 41 (at [51]): "Whether disclosure is 'unreasonable' requires, in my view, a consideration of all the circumstances, including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to be disclosed without consent, and whether that information has any current relevance." 84It is my understanding that the information excised from the first two paragraphs of page 207 of the document is publicly available information. In the circumstances I am not satisfied that the release of that information "would involve the unreasonable disclosure of information concerning the personal affairs of any person". In my view it should be released to Mr Potier. 85Similarly, for the same reason, the deleted material from page 219 should be released. 86It is also my view that the first three words of the deleted material on page 220 of the document should be released. 87The Respondent also asserts that part of the SORC Minutes are exempt pursuant to clause 4(1)(e) of Schedule 1 to the FOI Act on the basis that it contains security information that, if released, may prejudice the effectiveness of any method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. No evidence was provided in support of that assertion. However, it is my understanding that Mr Potier is not challenging that issue. 88I have considered the documents identified as documents 5 and 6 in response to item 6 of Mr Potier's FOI request. The Respondent asserts that parts of document 5 is exempt pursuant to is exempt pursuant to clause 6 of schedule 1 to the FOI Act. I agree with that assertion. In my view, the document contains personal information about persons other than Mr Potier and the release of that information "would involve the unreasonable disclosure of information concerning the personal affairs of any person". 89The Respondent asserts that document 6 is exempt pursuant to clause 10 of schedule 1 to the FOI Act on the basis of legal professional privilege. The document will not be privileged unless it was brought into existence for the dominant purpose of obtaining legal advice or for use in litigation. The Respondent bears the onus of establishing the claim for legal privilege. It will not discharge this onus by simply asserting the privilege; it must establish the facts which give rise to the claim for privilege: Priest v NSW [2006] NSWSC 1281. 90In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal said: [72] The purpose for which a document is brought into existence is a question of fact: Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [5], 692 per Jacobs J; Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [10], 66 per Mason and Wilson JJ; [14], 78 per Brennan J. While sometimes direct testimonial evidence from the person who created a document concerning the purpose which it was brought into existence can be both relevant and important, there is no requirement, even in a court of law, for the purpose with which a document was brought into existence to be proved in this way. Sometimes, an examination of the document itself can be enough to establish the dominant purpose with which it came into existence. That is often the case with a brief to counsel to advise, or a memorandum of advice from counsel, that deals with no topic other than the giving of advice. Sometimes, examination of the circumstances in which a particular document has been produced might show that even though the document considered on its own looked like legal advice, or a request for legal advice, there were other extraneous circumstances that led to the conclusion that it was produced with a dominant purpose other than one which would make the document privileged. It is a question of fact, involving weighing such evidence as is available, whether in any particular case a document was produced with a dominant purpose of giving or obtaining legal advice or the provision of legal services. 91With respect to the claim of legal privilege the Respondent does not rely on direct testimonial evidence from the person who created the document. However, I have been given a copy of the document and I have been able to examine it. In my view it is apparent from an examination of the document itself that the Respondent's claim is made out. 92I agree with the Respondent's contention and affirm the determination insofar as it relates to the asserted clause 10 of schedule 1 to the FOI Act exemption. 93I agree with Mr Potier's assertion that item 7 of his request for documents is to be read broadly and would include the LSI-R report that was referred to on page 220 of the SORC Minutes. The Respondent has provided submissions in regard to how the Tribunal should deal with that document but has provided no evidence in support of those submissions. The Respondent's assertion that the LS1-R is a psychometric tool employed to assess offenders may well be correct but there is no evidence to support the assertion. Nor have I been given a copy of the document so that I could carry out an examination of it. I have no evidence to show that the report is the same report considered in the case of GU v Commissioner, Department of Corrective Services [2003] NSWADT 176. I have not been given any evidence to support the submissions in regard to the likely consequences of releasing the document. I have not been given any evidence to support the submission that requiring the Respondent to consider every document mentioned in the SORC Minutes would substantially and unreasonably divert the resources of the agency. In the absence of evidence I am unable to determine whether the document should be released. 94The Respondent has not determined the issue and in my view it should do so. That aspect of the application is remitted to allow that consideration. 95As I indicated above, it is unclear whether the Respondent is asserting that the statistical information requested in item 8 of Mr Potier's FOI request does not exist or whether it is asserting that an exemption applies in relation to that material. Nevertheless, the Respondent has not determined that issue and in my view it should do so. That aspect of the application is remitted to allow that consideration.

Order 1. The determination is affirmed insofar as it relates to the documents identified as item 2 of Mr Potier's FOI request and documents 5 and 6 in response to item 6 of Mr Potier's FOI request. 2. The determination is set aside insofar as it relates to document 3 in response to item 6 of Mr Potier's FOI request to the extent referred to in these reasons. 3. The application is remitted for redetermination by the Respondent insofar as it relates to items 7 and 8 of Mr Potier's FOI request. The redetermination is to be completed and a copy of the determination given to Mr Potier by Friday 27 January 2012. 4. The matter is to be listed for further directions at 1.30pm on Tuesday 14 February 2012

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2011