Keene and Director-General, Department of Justice and Attorney-General (Commissioner, Corrective Services, NSW) [2011] NSWADT 59 (23 March 2011)

Last Updated: 16 May 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Keene and Director-General, Department of Justice and Attorney-General (Commissioner, Corrective Services, NSW)
Medium Neutral Citation:	[2011] NSWADT 59
Hearing Date(s):	On the papers
Decision Date:	23 March 2011
Jurisdiction:
Before:	N Isenberg, Judicial Member
Decision:	The application is dismissed.
Catchwords:
Legislation Cited:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997
Cases Cited:	State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Texts Cited:
Category:	Principal judgment
Parties:	David Keene (Applicant) Director-General, Department of Justice and Attorney-General (Commissioner, Corrective Services, NSW)
Representation
- Counsel:
- Solicitors:	D Keene (Applicant in person) Department of Corrective Services (Respondent)
File number(s):	103220
Publication Restriction:

REASONS FOR DECISION

Application before the Tribunal

1. On 11 June 2010 the applicant, Mr David Keene, lodged an application under the Freedom of Information Act 1989 (the FOI Act) for recordings of telephone calls (the recordings) made by him whilst he was in custody at various correctional centres between 2007 and 2009. Dissatisfied with the material provided to him in response to his application, Mr Keene applied for review by this Tribunal pursuant to section 53(1) of the FOI Act.

Issue

2. The Respondent contends that Mr Keene's request has been answered and now asks that the application be dismissed. Mr Keene made no submission to the contrary.

History of the FOI request

3. Following his application for the recordings, on 29 June 2010, Mr Keene clarified that he only required copies of the conversations involving his mother and a Mr Reynolds (although apparently none were located in respect of Mr Reynolds).

4. On 14 July 2010, the respondent told Mr Keene that an estimated 43 hours would be required in order to complete the processing of his application, and that the legislation only required an agency to spend 20 hours in answering an FOI request unless an additional fee is paid. Mr Keene was told that the cost of the additional time would be approximately $345.00, charged at $15.00 per hour (which is the concessional discount) and was asked to make an advance deposit of $200.00 pursuant to section 21 of the FOI Act. As a result Mr Keene requested that the respondent only process his application up to the '20 hours of free processing' point.

5. The respondent advised Mr Keene that it was required to consult his mother, prior to determination as provided in Division 2 Part 3 of the FOI Act in relation to its obligations concerning the "personal affairs" of others. Mr Keene was also advised that the consultation process would add an additional 14 days to the processing period. Mr Keene's mother subsequently informed the respondent that she objected to the release of the recordings.

6. Mr Keene was noted by the respondent as having provided the following reasons for his request to access the recordings:

to obtain evidence of a kind that may either support or contradict other known facts relevant to current and/or pending court proceedings; and

to assist in forming an assessment of my state of mind during my Incarceration and to what extent it was affected by the conditions I lived under over that period.

7. Mr Keene contended that the public interest favoured the release of the recordings, and as such outweighed any third party privacy considerations; in particular when the third party (his mother) was aware that the telephone call was being recorded.

8. By letter dated 8 August 2010, Mr Keene requested an internal review, because his application had not been determined within the statutory timeframe.

9. On 9 August 2010 an officer of the Information Access and Privacy Unit undertook the internal review. As a result, Mr Keene was provided with full access to the printouts of telephone calls and also access to audio recordings of telephone calls up to 20 hours of processing, in accordance with his instructions. Some audio recordings could not be provided to him because of his mother's views and Mr Keene's mother had a right to appeal the determination if she chose to do so.

10. On 16 August 2010 the Manager of the Information Access and Privacy Unit, informed Mr Keene by letter that subsequent to his request for an internal review, he would be provided with access to a further 17 recordings, after the expiration of his mother's appeal period.

11. Mr Keene was informed that any recordings which were recorded while he was incarcerated at the Junee Correctional Centre (JCC), were not held by the respondent and consequently he would need to make an application to the JCC pursuant to section 247 of the Crimes (Administration of Sentences) Act 1999. However, in August 20 those recordings were forwarded by JCC management to the respondent. On 2 September 2010, the respondent informed Mr Keene that a total of 63 recordings had been retrieved from the JCC, a few days of which had been corrupted and were unreadable. However the 63 additional recordings were not immediately provided to Mr Keene because of his request to limit processing time to 20 hours. I am informed though that these recordings have subsequently been provided to Mr Keene.

12. On 7 September 2010, further additional materials were released to Mr Keene and on 20 October 2010 the respondent released the recordings with his mother.

Consideration

13. The Respondent contends that documents have been provided to Mr Keene and now asks that Mr Keene's application be dismissed, by reference to the Tribunal's powers under Section 73(5)(g) of the Administrative Decisions Tribunal Act 1997. That provides that the Tribunal "may dismiss at any stage of any proceedings before it", where it "considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance".

14. As to what is meant by the terms 'misconceived' and 'lacking in substance' Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (at 108-109) said, with respect to a similar provision found in the Equal Opportunity Act 1984 (Vic):

"Frivolous" and "vexatious" are terms which have been known to the courts for many years, forming the primary basis for dismissal in the inherent jurisdiction of the courts and which now may be taken as indicative of "abuse of process", but the terms "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ... "

15. Mr Keene made an FOI request for recordings of telephone calls which he made whilst in gaol during 2007-2009. Because there was a large volume of material, he was invited to indicate if he was prepared to pay for the processing of that material in excess of 20 hours processing time: section 21 and 22 FOI Act. He was not, and therefore not all material was provided to him. Also, in view of privacy considerations, his mother had to be afforded her statutory rights and consulted about release of some material and this, necessarily, occasioned some delay.

16. From the available information I am satisfied that Mr Keene has been provided with material answering his FOI request. In fact, he has been provided with material which exceeds that for which he is prepared to pay for processing.

17. For completeness, I am satisfied on the evidence from Corrections Intelligence Group that the calls between 20-15 October 2008 could not be released as the disk was corrupted and unreadable. I was also provided with a statement by Brian Neville, a Senior Correctional Officer to the effect that he had been unable to retrieve the calls because of the disk's corruption. In the absence of evidence to the contrary, I accept that that information is unavailable and that Mr Keene was provided with notice to that effect: section 28(1)(b) FOI Act.

18. Mr Keene contended that the material provided did not contain a file note in relation to telephone calls at the JCC on 19 November 2007, shortly after he was brought into custody. I am informed that attempts to locate such a document have not yet been finalized. In my view, having regard to the financial limitations placed by Mr Keene upon the scope of the application, it would be unreasonable to require the respondent to enquire further. In any event, there was no evidence beyond Mr Keene's assertions that such a document had ever existed.

19. For the reasons given above, I find there is nothing further for the Tribunal to determine in this application, and I dismiss the application pursuant to section 73(5)(g)(ii). The proceedings, as they remain before the Tribunal, are misconceived and lacking in substance.

Order

(1) The application is dismissed.