VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
review and regulation list	VCAT Reference: Z876/2018	

CATCHWORDS
FOI Act – prisoner seeking access to anonymous notes passed to prison authorities – other prisoners named in notes – handwriting may identify author – whether names and handwriting are exempt as personal information – whether names and handwriting are subject to law enforcement documents exemption – whether release of names and handwriting would breach secrecy laws – public interest  override – whether applicant believed to be author of notes – whether applicant punished for being author – whether applicant denied procedural fairness in transfer between Units

APPLICANT:	Mr Robert Sloan	

RESPONDENT:	Secretary to the Department of Justice and Community Safety	

WHERE HELD:	Melbourne	

BEFORE:	Acting President Judge Hampel	

HEARING TYPE:	Hearing	

DATE OF HEARING:	20 February 2019	

DATE OF ORDER:
CITATION:	18 April 2019
Sloan v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2019] VCAT 586	

	

ORDERS

1.	The application for review is dismissed.

Judge Hampel 
ACTING PRESIDENT 			

APPEARANCES:		
For the Applicant:  	Appearance in person 	
For the Respondent:	Ms E. Latif of counsel 	

REASONS
Background and Nature of Application

1	The Applicant is serving a sentence of imprisonment. He is classified as a medium security protection prisoner. In May 2017, he was housed in the Hoya Protection Unit (Hoya) of Her Majesty’s Prison Barwon (Barwon). On 12 May 2017, the Applicant was transferred from Hoya to Banksia Management Unit (Banksia) at Barwon. 
2	Mr Roderick Wise, Deputy Commissioner, Operations, Corrections Victoria, who is responsible for oversight of the public prison system, has given evidence the Applicant was transferred for his own safety, because an anonymous note had been provided to prison staff in Hoya threatening to kill the Applicant. 
3	On 28 May 2017, the Sentence Management Panel, after discussions with the Applicant, returned him to Hoya.
4	On 7 June 2017, the Applicant was again transferred from Hoya to Banksia. According to Mr Wise, prison management believed the Applicant had written three anonymous notes threatening other prisoners, which had also been provided to prison staff in Hoya.  
5	The Applicant has remained in Banksia ever since. Prisoners held in Banksia are subject to more restrictions than those held in other units in Barwon. The Applicant has refused proposed transfers to two other prisons, Fulham near Sale and Hopkins in Ararat. They are both prisons which house prisoners with a medium security protection classification and where the conditions are less restrictive than those at Banksia. The Applicant wants to return to Hoya.
6	The Applicant gave an explanation for his refusal to accept the transfer to Hopkins. He did not explain why he refused to accept a transfer to Fulham. 
7	The Applicant believes his suspected authorship of the last three notes was the sole reason for his second transfer from Hoya. The Applicant wants access to them so he can subject them to handwriting analysis and prove he was not the author. He believes that, if the prison authorities thought he was the author, he should have faced disciplinary proceedings, which would have allowed him to clear his name. He believes that prison authorities now believe he was not the author, but that his suspected authorship is still being used as an excuse for not returning him to Hoya. He also believes some prisoners believe that he is the author and, by writing the notes, informed on other prisoners. As prisoners who are believed to be informers are vulnerable in the prison system, he wants to be able to prove to other prisoners he is not the author. He maintains he knows who wrote all four notes and the fact he did not retaliate against the author of the note threatening to kill him when he was returned to Hoya is proof he will not retaliate, or be a destabilising influence, if returned again to Hoya.

Request for the notes under the FOI Act
8	On 10 July 2018, the Applicant made a request under the Freedom of Information Act 1982 (Vic) (FOI Act) for access to the ‘anonymous notes given to officers or placed in the Hoya mail box or left on the Hoya console between 11.5.17 and 7.6.17’. It was common ground between the parties that the four notes I have described are the only documents that fall within the scope of the request. 
9	On 17 August 2018, the Respondent refused access to the notes in their complete and original form on the basis that they were exempt from release under ss 31(1)(a), 33(1) and 38 of the FOI Act. 
10	The Respondent provided the Applicant with a typed copy of the notes with the names of the threatened prisoners redacted. They were in these terms:  
If Ronny Sloan is in the unit any longer we will kill him (Note A) 
We no [sic] [redacted name] is the note dropper. If you don’t get him out we will kill him [redacted] next (Note B);
[redacted] is going to take out [redacted] for $2000. [Redacted] is paying. [redacted] is going to take out [redacted] for Sloan (Note C);
[redacted] and [redacted] will be killed if yas [sic] don’t move them (Note D)
11	On 21 August 2018, the Applicant applied to the Information Commissioner for a review of the Respondent’s refusal to release the notes. The Information Commissioner did not complete the review within the time period prescribed by s 49J of the FOI Act, namely 30 days pursuant to subsection (3)(a). It was therefore deemed by s 49J(2)(a) to have refused the request. 
12	On 24 September 2018, the Applicant made an application to the Victorian Civil and Administrative Tribunal (Tribunal) under s 50 of the FOI Act for review of the decision to refuse the release of the notes. The application for review was heard on 20 February 2019. The Applicant appeared by video link.
13	On review, the Respondent maintained its claim for exemption in reliance on ss 31(1)(a), 33(1) and 38 of the FOI Act. It also claimed they were exempt by reason of ss 31(1)(c) and (e). 
The Statutory Framework of the FOI Act
14	Section 13 of the FOI Act confers a legally enforceable right on the public to access a document of an agency or an official document of a Minister, other than exempt documents. A person may make a request for access to documents under s 17.
15	The Respondent in this case is an ‘agency’ and the notes are a ‘document of an agency’, as those terms are defined in s 5 of the FOI Act.  
16	Access to a document may be given to a person in one of the forms prescribed by s 23. If a document is not exempt from release and is released on request, there is no power under the FOI Act to restrict a successful applicant’s use or dissemination of it.
17	An ‘exempt document’ is relevantly defined in s 5 of the FOI Act as:
a document which by virtue of a provision of Part IV, is an exempt document.
18	The Respondent is relying on the following categories of exemption under Part IV:
Section 31 – Law Enforcement Documents
(1) Subject to this section, a document is an exempt document if its disclosure under this Act would, or would be reasonably likely to— 
(a) 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; 
…
(c) disclose, or enable a person to ascertain, the identity of a confidential source of information in relation to the enforcement or administration of the law;
…
(e) endanger the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law.
Section 33 – Document Affecting Personal Privacy
(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).
Section 38 – Documents to which Secrecy Provisions Apply 
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.
19	If an agency refuses a request for access to a document, the person seeking release may apply for review by the Information Commissioner under s 49A of the FOI Act. The Information Commissioner has the power under s 49P to make a fresh decision in respect of the release of the documents. By s 49J, if the Information Commissioner has not completed its review within the required time period prescribed by s 49J(3), namely 30 days, as was the case here, the Information Commissioner is taken, by s 49J(2)(a), to have made a decision refusing to grant access to the document in accordance with the request.
20	If the Information Commissioner refuses, or is deemed to have refused to grant access to a document, a person may apply for a review of that decision by the Tribunal under s 50 of the FOI Act. 
21	On review, the Tribunal has the same powers as an agency or Minister. In addition, the Tribunal can decide that an exempt document should be released if it is of the opinion that the public interest requires that access to the document should be granted. The public interest override does not apply to a document that is exempt from release under s 33 of the FOI Act. 
Evidence and Submissions 
22	The Respondent relied on the evidence of Mr Wise. Annexed to his witness statement was the reasons for sentence of Judge Bourke dated 10 June 2011 and the Victoria Police Court Outcomes Report dated 17 May 2018. The Respondent also filed a helpful outline of submissions and a Statement of Public Interest Grounds dated 1 February 2019. 
23	The Applicant relied on his letter to the Tribunal dated 19 December 2018, which he supplemented with oral evidence and submissions. The Respondent did not seek to cross examine the Applicant. The Applicant also cross examined Mr Wise. 
24	It is convenient to deal with the s 33 personal information claim before dealing with the law enforcement and secrecy claims under ss 31 and 38 respectively.
Section 33 Claim: information relating to personal affairs of any person
25	The Respondent submitted that the names of the prisoners, the threats made to named prisoners and other information from which the author of the notes could be determined amounted to information relating to personal affairs of any person.
26	The names of the prisoners (other than the Applicant) as the person or persons the subject of the threats contained in the notes is clearly information relating to personal affairs of any person. In my view, information which could identify the author of a note is also self-evidently information relating to the personal affairs of that person. That handwriting itself is information which could identify the author again is self-evident, and so, is properly characterised as information relating to the personal affairs of that person. There is persuasive authority for the proposition that disclosure of the fact that an individual had been in communication with an authority, such as the Prisons Investigation Unit, is information that would relate to that person’s personal affairs.  
Section 31(1)(a): Law enforcement documents
27	The Respondent submitted that prison officers rely on anonymous notes as a source of intelligence.  Mr Wise deposed:
“[anonymous notes] are important because they provide a mechanism for prisoners to inform prison officers confidentially of safety risks to themselves or others, as well as illicit activities, such as drug taking. While the reliability of these notes is variable, they can be a valuable source of information for Corrections Victoria. They are particularly useful for informing decisions about where prisoners can be best placed to ensure their safety and security and good order of the prisons. They are also useful for investigating and preventing incidents.
Therefore, if such notes were released … it would discourage prisoners from writing anonymous notes in the future, out of fear that they would be placed at risk by being identified based on the content or handwriting of the note. … This would severely impair Corrections Victoria’s ability to operate the prison security system safely.”
28	In Knight v Department of Justice, the Tribunal held that the reference to a ‘particular instance’ in s 31(1)(a) is not limited to a specific investigation and includes the ongoing operation of a prison security system. 
Section 31(1)(c): identity of a confidential source of information in relation to the enforcement or administration of the law
29	The Respondent submitted that the anonymous notes contained highly sensitive information. It relied on the evidence of Mr Wise who deposed:
“The reason a [prisoner] would choose to instead write an anonymous note is to protect their identity as the source of the information. This is because prisoners who are known, or suspected, of informing on other prisoners to prison officers or police are vulnerable to assault to intimidation.”
Section 31(1)(e): endangering the lives or physical safety of persons engaged in or in connection with law enforcement or persons who have provided confidential information in relation to the enforcement or administration of the law
30	The Respondent relied on the Applicant’s history of violence, as detailed in the Victoria Police Court Outcomes Report and the reasons for sentence of his Honour Judge Bourke to support its submission that release of information identifying the author(s) of the notes would endanger the lives or safety of the author(s). Mr Wise deposed:
“I am concerned [using hand writing analysis to identify the author(s) of the notes] would create a risk of retribution impacting on the safety of the applicant, other prisoners and prison officers for a number of reasons. The Applicant has a long history of engaging in violent and threatening behaviour. Note A contains a threat against the applicant. The applicant may seek to take action against the person he subsequently identifies as the author of this note. Note C accuses the applicant of planning an assault. The writer of this note would be considered a ‘dog’ (informer) and would be at risk of harm from the applicant and other prisoners for providing information to prison officers. It also appears that the applicant may blame the author(s) for his separation.”
31	After the oral hearing had concluded, the Applicant wrote to the Tribunal, giving notice he intends to challenge the hearing on the basis that his criminal record was introduced by the Respondent without the Tribunal asking for it. He appeared to be concerned he had been denied procedural fairness. The criminal record was included in the Respondent’s s 49 material, which had been served on the Applicant in advance of the hearing. The Applicant did not object to the use of the record at the hearing. In fact, he cross examined Mr Wise about aspects of it, including the reason why a name he said he had never used was recorded as a name he had previously been known by.
32	I note the Applicant was unrepresented at the hearing and, although showing some familiarity with his rights as a prisoner under the Corrections Act 1986 (Vic) (Corrections Act) and the manner in which hearings are generally conducted, including the rules of cross examination, he is not legally trained. The criminal record was relevant to the Applicant’s prisoner classification and where, as a result, he could be housed. I relied on it for that purpose. It was also relevant to the exemptions relied on by the Respondent. I took it into account, along with the other information contained in Mr Wise’s evidence about the Applicant’s behaviour in custody, as evidence relied on by the Respondent to support its exemption claims under ss 33 and 38. No credit finding, adverse to the Applicant, has been made, or was necessary to be made in determining this application. That said, the Applicant has the right to apply for leave to appeal under s 148 of the VCAT Act if he is aggrieved by this decision.  
33	Mr Wise also gave evidence that there was a risk of violence from other prisoners towards the author(s) if they were to become aware of the author’s identity. He deposed:
“If the applicant were to gain access to the hand-written notes there is a risk that other prisoners could see the notes or become aware of their contents. If that were to occur the other prisoners, including those named in the notes, might also seek retribution against the author(s) or perceived author(s) for threatening or informing against them or their associates. There is also a risk that the prisoners who are threatened in Note C could seek retribution against the prisoners who allegedly threatened them.” 
34	Counsel for the Respondent submitted that the potential violence of other people who may see the notes is a proper consideration as there is not power under the FOI Act to constrain who may subsequently view the document after it is released. This was supported by Department of Agricultural and Rural Affairs v Binnie, in which Marks J held that:
“It is not necessary to show that the risk to which s 31(1)(e) refers is from the respondent himself but rather anyone should the information become generally known.”  
35	The Respondent also relied on Knight v Department of Justice, where the Tribunal held that certain documents were exempt under s 31(1)(e) despite the Applicant’s submission that he would not personally endanger the lives of the persons who provide the information nor disseminate the information to those who might endanger them. 
36	The Applicant submitted that the notes should be released to him, unredacted and in their handwritten form, because even if he were able to confirm the identity of the author(s), he did not pose a danger or threat to them. As he contended his transfer to Banksia was disciplinary and based solely on a mistaken belief he was the author of the last three notes, he should be given the handwritten notes so a handwriting comparison could be done. This, he contended, would give him the opportunity to show he was not the author and possibly identify who was. He also expressed concerns that his personal reputation and safety were threatened by other prisoners, who wrongly believed he had authored the notes. Release of the handwritten form of the notes would, again, allow him to demonstrate by handwriting analysis to other prisoners that he was not the author and perhaps identify who was. 
37	The Applicant noted he had told the Sentencing Management Panel the name of the prisoner he believed had written the first note. Mr Wise agreed that the Panel had concluded that it was not unsafe for the Applicant to return to Hoya and authorised his return on 7 June 2017. Mr Wise also confirmed that there had been no report made or disciplinary action taken against the Applicant for violent or threatening behaviour towards any other prisoner between the time of his return and his second removal after the last three notes were received. 
38	The Applicant also gave evidence of changes in his behaviour relevant to the risk he might be thought to pose to other prisoners. He had completed an intensive anger management course in the past when held at Hopkins and was allocated the role of food billet, a trusted position, in Hoya. In addition, he now adhered to the tenets of Buddhism. The Applicant contended that this was evidence that he could not be considered a genuine threat to other prisoners and would not pose a danger to the lives or physical safety of anyone if the notes were released to him.
39	In response to the Respondents’ claim for exemption under ss 31(1)(a) and (c), the Applicant submitted that, if he had authored the last three notes, this would constitute an offence under r 50 of the Corrections Regulations 2009 (Vic). What he characterised as an election to administratively transfer him to Banksia rather than charge him or investigate the offence, he submitted frustrated his entitlement to the presumption of innocence and was in breach of the process prescribed by s 50(2) of the Corrections Act, which states:
“The disciplinary officer must make proper investigation of all alleged prisoner offences which come to the officer’s notice and must give the prisoner alleged to have committed the offence an opportunity to make an explanation.” 
40	In those circumstances, the Applicant submitted, there was no investigation that release of the notes may have prejudiced. Further, if he was believed to be the author of the notes, the Respondent could not then claim that their release to him would enable him to ascertain the identity of a confidential source.
41	It is Mr Wise’s evidence that the second transfer was made, not only because it was suspected the Applicant had written the notes, but because there were management concerns his behaviour generally was unsettling the unit and contributing to tensions among prisoners. The Respondent maintains there are risks to the safety of other prisoners if the handwritten notes are released to the Applicant that will likely identify the author(s). That puts the author(s) at risk of being labelled an informer by the prisoner population. Even if the names of the prisoners mentioned in the notes are redacted, their identity may also be ascertainable and that could lead to tensions between the threatened prisoners and the author(s). In addition, the Respondent submits that release of the handwritten notes would enable the identification of a source of confidential information provided to prison authorities, so prejudicing the proper administration of prisons under the Corrections Act. 
42	The Respondent’s evidence was also that the Applicant was not punished for allegedly writing the notes and the notes have no impact on his current placement. At paragraph [11] of his witness statement, Mr Wise states that:
“There was no disciplinary investigation into who wrote these notes because it was not treated as a disciplinary matter under the Corrections Act. The notes, as well as the concerns regarding the applicant’s destabilising effect in Hoya, were addressed as issues affecting where he could be accommodated to safeguard his safety, as well as the safety of other prisoners.” 
Section 38 claim: documents to which secrecy provisions of enactments apply
43	Mr Wise deposed:
“The documents … also contain personal or confidential information within the meaning of s 104ZX of the Corrections Act. It is an offence to disclose this information under s 104ZZA of the Corrections Act and disclosure of the personal or confidential information is not authorised under s 104ZY or 104ZZ of the Corrections Act to the best of my knowledge.” 
44	The Respondent relied on Knight v Corrections Victoria, where Bell J held that the provisions of the Corrections Act then in force (which is, for these purposes, to the same effect as s 104ZZA) were secrecy provisions within the meaning of s 38 of the FOI Act.
Section 50(4): the public interest override
45	Finally, the Respondent contended that the Tribunal should not exercise its discretion under s 50(4) to release the notes because the public interest does not require their release. 
46	It identified three grounds in its Statement of Public Interest, namely:
a.	maintaining the good order and security of the prison system;
b.	ensuring the welfare of prisoners and staff who work in the prison; and
c.	maintaining a confidential prison intelligence system. 
47	It succinctly set out its understanding of the reasons why the Applicant argued the public interest override should apply and its response in these terms: 
“The Applicant appears to be relying on a public interest in ensuring the integrity of prison disciplinary processes and that the perceived injustice to himself is righted. This is misconceived because the Applicant has not been disciplined for writing the notes. He was separated to Banksia because of the negative effect he was having in Hoya. This was necessary to ensure his safety, as well as the safety of other prisoners. The only reason he remains separated is because he refuses to transfer to the less restrictive units that have been identified as suitable.” 
48	In oral argument, counsel for the Respondent also noted that judicial review was available to the Applicant and would provide him with the appropriate opportunity to ventilate his grievances regarding his perceived denial of procedural fairness in respect of his transfer to Banksia. She also noted that, in the context of judicial review, the Supreme Court would be able to provide for the confidential and limited release of the notes to the parties only for the purposes of the hearing. 
Conclusion 
49	I am satisfied the names of the prisoners mentioned in the notes is information relating to the personal affairs of a person and are exempt under s 33. I am also satisfied the handwriting is information which could tend to identify the author and therefore production of the handwritten version of the notes is information relating to the personal affairs of a person and is exempt under s 33. 
50	I am also satisfied, for the reasons advanced by the Respondent, that the exemptions claimed under s 31 (the law enforcement documents exemption), applies to information that could identify the persons named in the notes, (here, their names) and to information that could identify the author of the notes (here, the handwriting). I accept anonymous notes are a source of intelligence for prison authorities, relevant to the ongoing operations of prison security. 
51	I am satisfied that information which could identify the source of anonymous intelligence provided to prison authorities by a prisoner in a unit concerning other prisoners in that unit is properly characterised as information which could identify a confidential source of information in relation to the ongoing operations of prison security. I am satisfied that it is not only the handwriting which might identify the author, but also the names of the prisoners named in the notes. That is so because it is common knowledge that friendships, alliances, or allegiances exist between prisoners, or groups of prisoners. Identification of the persons against whom threats are made may well tend to include, or exclude other prisoners as the source of the threats.  
52	I am also satisfied that identification of the prisoners against whom threats were made and of the author of the notes could endanger the lives or physical safety of those persons or other prisoners. In coming to this conclusion, I want to make it clear I am not making a finding the Applicant himself poses such a risk. My finding is limited to not being able to exclude the reasonable possibility that a prisoner (not necessarily the Applicant) may take it upon himself to punish a person he believes to be an informer or who has threatened another prisoner. 
53	I am also satisfied, for the reasons I have already given in considering s 31 and s 33, that the names of the prisoners threatened in the notes and handwriting from which the identity of the author(s) could be ascertained are properly characterised as personal or confidential information, as those terms are used in s 104ZZA of the Corrections Act. I am therefore satisfied that s 104ZZA is a ‘secrecy provision’ to which s 38 of the FOI Act applies.  
54	All grounds of exemption relied on are made out.
55	I am not satisfied that this is a case where the public interest override should apply. Despite the Applicant’s sense of grievance about his second transfer to Banksia and his continued detention there, I am not satisfied that overrides the interests protected by s 31 and 38. As the Respondent pointed out, the Applicant has other remedies if he wishes to challenge his continued detention in Banksia, which may allow, in a protected environment, analysis of the authorship of the notes. In any event, even if I were satisfied the public interest override applied to the exemptions claimed under ss 31 and 38, the application for review would still fail, as the public interest override does not apply to exemption under s 33. 
56	The application for review is dismissed.

Judge Hampel 
ACTING PRESIDENT