Rogers v Chief Commissioner of Police  VCAT 2526 (26 November 2009) In Rogers v Chief Commissioner of Police, VCAT held that CCTV footage and audio tape used for the investigation of an incident that occurred in the Banksia Unit of HM Barwon Prison were exempt from disclosure under the Freedom of Information Act 1982 (Vic). VCAT ordered that the documents should not be released to the Applicant, Darren Rogers.
In reviewing the original decision of the Chief Commissioner of Police (‘CCP’) to deny access to the document, VCAT considered the ‘public interest’ arguments advanced on behalf of the Applicant in favour of release of the document in the context of human rights considerations regarding the transparency of investigation processes within prisons and the ill-treatment of prisoners.
Factual and Procedural Background
In the proceeding before Senior Member Davis, the Applicant sought access under the FOI Act to certain documents that contained evidence in relation to the investigation of an alleged assault (‘the incident’) that occurred in July 2007 when Mr Rogers was a prisoner in a High Security Unit in HM Prison Barwon.
Specifically, the Applicant claimed that after a heated exchange with two Prison Officers he fell forward from the door of his cell, stumbling because of the momentum. The Applicant claimed that he was then punched five or six times by one prison officer as the other prison officer wrapped his arms around the Applicant and steered him in to his cell.
Contrary to the evidence of the Applicant, the prison officers reported that when the Applicant was ordered to step in to his cell, the Applicant lunged toward one of the prison officers. Believing that the Applicant was going to assault him, one prison officer reported that he raised both hands and ‘made contact with his chest and head regions’.
After the incident, two incident reports were made by prison officers to the Prison Directorate, Corrections Victoria. In May 2008, the Applicant made a request pursuant to the FOI Act for any information, records, files or documents held by the Respondent in relation to its investigation the incident, including the brief of evidence submitted and considered by police.
Following a decision at internal review to release some documents, the Applicant confined his request to DVD security footage of the incident (Document 12), and an audio tape of a Victoria Police interview with a prison officer involved in the incident (Document 13) (together the ‘Disputed Documents’).
The Respondent relied upon the following exemptions to argue that the documents were exempt from release under the FOI Act:
- s 38 of the FOI Act – engaging secrecy provision in s 30(1)(a,(d),(e),(f) (g) of the Corrections Act 1986 (Vic.);
- s 31(1)(d) of the FOI Act – disclose methods or procedures;
- s 31(1)(e) of the FOI Act – endanger life or physical safety of persons engaged in law enforcement;
- s 33(1) of the FOI Act – personal privacy; and
- s 35(1)(b) of the FOI Act – in confidence.
The Applicant submitted that the exemptions claimed by the Respondent and the public interest override (pursuant to s 50(4) of the FOI Act) should be interpreted subject to the Charter of Human Rights and Responsibilities Act.
The Applicant submitted that he sought access to documents 12 and 13 to ensure that the incident was properly investigated pursuant to s 15 of the Charter (the right to freedom of expression, which subsumes the right to receive information). The Applicant also alleged that there had been a ‘failure by authorities to properly investigate the allegations of mistreatment’ and argued that this may amount to a breach of ss 10 and 22 of the Charter (the right to humane treatment in detention).
In summary, Senior Member Davis upheld almost all of the exemptions claimed by the Respondent.
The Senior Member ordered that the decision of the Respondent that the documents in dispute are exempt from disclosure under the FOI Act pursuant to s 31(1)(d) and (e) and s 38 of the FOI Act as it relates to s 30 of the Corrections Act be upheld.
Senior Member Davis held at paragraph 147 that disclosure of the documents would compromise the security of the public of Victoria:
It is clear to me that the s 31(1)(d) and (e) and s 38 [of the FOI Act] (as related to s 30 of the Corrections Act) exemptions are for the purpose of protecting security in prisons which in turn will affect the security of the public of Victoria. Put another way, if there was not the security in the prison system, the public of Victoria would be likely to suffer. Further, in DPP v Zierk  VSC 184 (30 May 2008), Chief Justice Warren made it clear that there is a strong social need for material associated with an internal police investigation to remain confidential in the interests of proper and efficient functioning of police investigation and the instrumental role of Victorian Police in upholding the rule of law.
Senior Member Davis described the evidence of the Applicant as ‘inconsistent and unreliable’ and stated clearly in his decision that he preferred the evidence of the Respondent.
The Senior Member first considered the exemptions claimed under the FOI Act without reference to the Charter. He then applied the provisions of the Charter and interpreted the provisions of the FOI Act in accordance with those provisions of the Charter that he considered were applicable.
Consideration of the Charter
In relation to the Charter, the Applicant submitted that:
- any decision of whether or not to grant access to the Disputed Documents must be considered in light of relevant human rights enshrined in Charter, namely the Applicant’s:
- right to freedom of expression (s 15 of the Charter);
- right to protection from cruel, inhuman or degrading treatment (s 10), which includes a requirement that incidents be properly investigated; and
- right to humane treatment when deprived of liberty (s 22): and
- denial of access to the Disputed Documents represents an unreasonable, unjustifiable and disproportionate impact on these rights of the Applicant.
Citing Kracke v Mental Health Review Board  VCAT 646, Senior Member Davis made note of the Tribunal’s obligation under the Charter not to act in a way that is incompatible with the Applicant’s human rights nor to fail to give consideration to human rights. Senior Member David then (somewhat curiously and circularly) made a finding that in reaching its decision in this matter, the Tribunal had complied with its Charter obligations.
Sections 10 and 22: right to protection from cruel and inhuman treatment, right to humane treatment when deprived of liberty
Member Davis found no evidence to support the submission that the Applicant was tortured or treated or punished in a cruel, inhumane or degrading way. He also found nothing in evidence to conclude that a proper inquiry was not conducted in response to the Applicant’s complaint.
He went further at paragraph 112, saying: ‘in any event, these documents would not assist the Applicant even if the incident was further investigated or a clearer picture obtained than what he already has of the incident’.
Despite extensive consideration of international jurisprudence in his reasons, Member Davis then held that the European cases referred to were not relevant.
Section 15: right to freedom of expression
Member Davis found that s 15 of the Charter was not engaged in relation to this proceeding. He did not engage in an extensive analysis of s 15 of the Charter.
In considering whether the Applicant had a right to receive the information Senior Member Davis first cited Bell J in Smeaton v Victorian WorkCover Authority  VCAT 1195 and then cited and affirmed the reasoning in McInnes v VicRoads  VCAT 2324.
On the basis of these decisions, and without further analysis, he held that the Respondent did not have a positive obligation to impart information to the Applicant.
Section 7: limitations of rights
In considering s 7 of the Charter, Senior Member Davis referred to and applied the legal contentions made in the matter of XYZ v Victoria Police (which were relied upon by the Respondent in this proceeding) regarding permissible limitations of human rights under the Charter.
In relation to s 7 of the Charter, Member Davis concluded at paragraph 154:
Weighing up all the matters mandated in s 7(2) of the Charter, it is abundantly clear, in this particular instance if a human right is breached (which I have found otherwise) that that limitation on the Charter is permissible by means of the consideration referred to in s 7(2). Put another way, the restrictions imposed pursuant to s 31(1)(d) and (e) and s 38 of the FOI Act as referred to in s 30 of the Corrections Act, is demonstrably justified in these present circumstances. Therefore, even if I had found that the Applicant’s human rights had been breached, in the circumstances of this proceeding, I come to the conclusion that s 31(1)(d) and (e) and s 38 of the FOI Act as it relates to s 30 of the Corrections Act provides a reasonable limitation of those rights.
Overall, the Tribunal’s reasoning in this case weighed heavily in favour of the Respondent. The Tribunal found that the exemptions should be upheld despite the public interest override and Charter considerations.
The Tribunal clearly considered that the application of the Charter is a secondary consideration to the application various provisions of the FOI Act. This approach suggests a general reluctance on the part of the Tribunal to give prominence to Charter considerations in the context of the FOI Act generally and in the context of FOI requests for documents relating to incidents occurring in prison systems specifically.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/2526.html.
Zoe Bateman and Helen Arblaster are lawyers with Corrs Chambers Westgarth and acted pro bono for the Applicant in this proceeding