Decision Numbers 96/49366 and 97/57595 |
|
| VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL CATCHWORDS Freedom of information - Private Prison Contracts - Commercial Confidentiality - Public
Interest - Corrections Act 1986 s.30(1), s.38 - Freedom of Information Act 1982 s.50(4) APPLICANT: Coburg Brunswick Community Legal and Financial Counselling Centre RESPONDENT: Department of Justice OTHER PARTIES: Australasian
Correctional Investment Ltd WHERE HELD: Melbourne BEFORE:
The Hon Justice Kellam, President and DATE OF HEARING: 26/27 October 1998 DATE OF DECISION: 20th May 1999 |
|
| DECISION The decision of the respondent is varied in that it is determined to release all information claimed to be exempt save for the following : Document 3, pages 274-276 (both inclusive) Document 10, 2nd and 3rd pages of Section 1, the 3rd page of Attachment 1, and the 2nd
to 16th pages (both inclusive) of Attachment 2. JUSTICE MURRAY KELLAM JOHN M GALVIN APPEARANCES For the Applicant:
Mr G Cazalet
BACKGROUND On 9 June 1995, the then Minister for Corrections, Mr McNamara, entered into an agreement with Excor Investments Pty Ltd in relation to the development, management and operation of a new women's prison. On 12 October 1995 Mr McNamara entered into a similar agreement with Australian Correctional Investment Ltd for the development, management and operation of a rural men's prison. On 10 July 1996 the Minister for Corrections, Mr McGrath entered into a similar contract with Australian Correctional Facilities Pty Ltd for the development, management and operation of a new men's metropolitan prison. This is an application for review of decisions of the respondent made on 7 November 1996 and 7 August 1997 refusing access to parts of the agreements referred to above and to certain other documents under the Freedom of Information Act 1982 (the Act). The matter proceeded before us on the basis of there being parts of four documents in dispute. Those documents and the exemptions in the Act relied upon by the respondent in relation to them are as follows: 1. The Prison Services Agreement dated 9 June 1995 between the State of Victoria and
Excor Investments Pty Ltd for the Metropolitan Women's Correctional Centre 1995.
("The Women's Prison") 2. The Prison Services Agreement dated 12 October 1995 between the State of Victoria
and Australasian Correctional Investment Ltd for Fulham Correction Centre 1995. ("The
Rural Men's Prison") 3. The Prison Services Agreement dated 10 July 1996 between the State of Victoria and
Australian Correctional Facilities Pty Ltd for Port Phillip Prison July 1996. ("The
Metropolitan Men's Prison) 4. Document 10 - parts of a report regarding the monitoring of prisoner transportation services provided to the Department by Corrections Corporation of Australia Pty Ltd. The document was prepared by a contract monitor of CORE - The Public Correctional Enterprise for the Director, Correctional Services for period 1 August 1994 to 31 July 1995. The parts of the report covered by the application refer to: (a) Inter Prison Transport (Exemptions - s30(1), 31(1)(a), (d) and (e), 33(1), 34(1)(a) and (b), 34(4)(a)(i) and (ii) and 38. At the outset of the hearing of the proceedings, leave was granted to Corrections Corporation of Australia Pty Ltd to withdraw as a party. Subsequently, similar leave was granted to Group 4 Corrections Services Pty Ltd. Section 38 of the Act is as follows: "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". Relevant provisions in the Corrections Act 1986 are as follows: "30(1) In this section - 'confidential information' means - .. (e) information concerning procedures or plans to be adopted or followed in a prison in the event of an emergency; or (f) information concerning the management of, or the operation of security measures in, or in relation to, a prison;
.. (i) the provision of services referred to in section 8B(1) or 9(1); or (ii) an agreement entered into under section 8B(1) or 9(1) or a subcontract agreement under that agreement; (2). A person who holds or has held a position must not, except to the extent necessary to perform official duties powers or functions of that position, record, disclose, communicate or make use of confidential information". The applicant concedes that all of the information in dispute is exempt pursuant to s38 of the Act by reason of s30(2) of the Corrections Act 1986. There is accordingly no need for us to consider any other grounds of exemption. The principal issue for determination is whether we should exercise the discretion conferred upon the Tribunal by s50(4) of the Act. That section states: "s.50(4) On the hearing of an application for review, the Tribunal shall have, in
addition to any other power, the same powers as an agency or a Minister in respect of a
request, including power to decide that access should be granted to an exempt document
(not being a document referred to in section 28, section 31(3), or in section 33 where the
Tribunal is of opinion that the public interest requires that access to the document
should be granted under this Act". THE EVIDENCE The evidence of each witness consisted of factual evidence and to some degree also of assertion and personal opinion. The first witness called by the Respondent was Peter David Noble, the Director of Project and Outservicing Development in the Department of Treasury and Finance. He gave evidence that for part of 1992 he was Head of the Infrastructure and Major Projects Branch of the Department of Premier and Cabinet. Immediately thereafter for approximately a year he was Head of the Micro Economic Reform Branch of that Department which had responsibility for major projects. In 1993 the Department of Justice established the New Prisons Project to implement private sector delivery of three new prisons. He was a member of the steering committee which oversaw the project and has detailed knowledge of it and of the contracts with the private providers. Of the documents in dispute, Document 1 is the Prison Services Agreement between the State and Excor Investments Pty Ltd for the development, ownership and operation of the Women's Prison. Document 2 is the Prison Services Agreement between the State and Australasian Correctional Investment Ltd for the development, ownership and operation of the Rural Men's Prison. Document 3 is the Prison Services Agreement between the State and Australian Correctional Facilities Pty Ltd for the development, ownership and operation of the Metropolitan Men's Prison. All such Agreements were released to the public in edited form in June 1997. It would appear that the edited Agreements were released pursuant to the provisions of s.30(3)(b) of the Corrections Act 1986. Most of the deleted material "is in the form of dollar or numeric amounts or tables and formulae for deriving dollar amounts". Such deleted information relates to commercial issues including the rates of payment for services, prescription of base service levels, performance related clauses, insurance damages and costs. It is generally "bid-specific". He asserted that the release of such information would expose the Department of Justice and the State to disadvantage as the Prison Services Agreements are subject to a competitive review process which may involve re-tendering 5 years after commencement with 3 year reviews thereafter. To obtain maximum benefit from such review, it is in his view, in the interest of the respondent that it be able to seek new bids without revealing the dollar values and similar commercially sensitive information in existing contracts. Release of the information in his opinion may also mean that the public sector approach in structuring briefs and agreements could become more conservative and less well defined. Mr Noble further asserted that release of the information would expose the private providers to disadvantage, as their cost structure details would become known to competitors thereby providing a commercial advantage to such competitor. A further disadvantage to the respondent and the State may in his opinion, occur, if businesses are deterred from transacting with public sector agencies out of concern for release of sensitive financial information with consequential erosion of "the level of potential benefits available through future tender processes" in that a shortage of bidders will mean that the State may not obtain the best deal that could otherwise have been available. In cross-examination, Mr Noble agreed that: 1. about "two years ago", Victoria did not have any private prisons; 2. Victoria now has the highest ratio of private prisons to public prisons in the world; 3. That the objective was to provide prisons of the "same or better standard" than public prisons at a lower cost and with the transfer of risk to the private sector. Mr Noble gave evidence that the three contracts in issue were consistent in form. Their structure was for separate corporate ownership of accommodation services and for correctional services. (We note that in each case the contracts provide for the provision of accommodation services for a primary term of 20 years. We note further that in each case the term of the contract for the provision of correctional services is 5 years from the date of completion of the facility. The agreements provide that the Minister may initiate a competitive review process in the case of the women's prison prior to the expiration of the 5 year term. In the case of each of the other new prisons, the contractor may submit an offer for the provision of correctional services for a further term no later than 10 months prior to the expiry of the present term. The Minister has an option as to whether agreement should be reached with the contractor to provide a further term or whether a competitive review process should commence.) The other witness called by the Respondent was Marisa De Cicco the General Manager Corrections Contracts Branch in the Department of Justice who has had considerable experience over a number of years in the management of projects seeking either to outsource or directly privatise public services. She gave evidence that she is responsible for providing advice to the Contract Administrator, Secretary and Minister for Corrections about funding, contractual obligations and management arrangements for the correctional system in Victoria and for managing the contractual arrangements between the private prison contractors and the Minister for Corrections in keeping with such obligations at the Metropolitan Women's Correctional Centre, Fulham Correctional Centre and Port Phillip Prison. She is of the understanding that circulation of the contracts in dispute has been limited to executive officers, specific operational staff and legal representatives of the Department of Justice who require the information contained in them for the performance of their duties. The documents have also been provided to the office of the Auditor-General. She stated that the contracts were drawn up and executed after a competitive bidding process. A brief to short-listed parties containing corrections policy, management standards and specifications was created by the New Prisons Project Team within the Department of Justice and tenders were invited by public advertisement. The briefs for the three prisons with the deletion of a small number of commercially confidential exemptions were released as public documents in December 1996, February 1997 and June 1997. The Department of Justice issued edited versions consisting of approximately 95% of the content of the contracts which have been available for public purchase since June 1997. Ms De Cicco asserted that release of the information claimed to be exempt, would allow competitors of the contractors to become aware of the financial terms on which the contractors succeeded in securing contracts and would disadvantage them "when the tendering process is repeated at competitive review in five years time". (We note that this assertion was an overstatement of the true position in relation to the contractual requirements for a competitive review of the correctional services to be provided under each agreement. The true position, as we understand the agreements is that the Minister has a discretion as to whether or not to enter into a competitive review at such time). Ms De Cicco stated that information relating to the financial details of the individual contracts has not been released by the Government in any publicly available document. Release will, in her opinion, also disadvantage the respondent in that it will enable future tenderers to know the level at which they must "pitch their bids in order to defeat the current contractors." The information would enable future tenderers to derive the future value of the current contracts and to construct their bids accordingly. Even were future service conditions to change, future tenderers could, from the information sought to be released, derive effective future unit costs upon which to base their bids. Release would therefore, she stated, have a detrimental effect upon the tendering process by reducing the possibility that future tenderers might offer significantly more competitive bids. It would also damage the reputation of the respondent and diminish the confidence of contractors in its capacity to adhere to undertakings concerning the maintenance of commercial confidentiality. With reference to Document 10, Ms De Cicco said that it is an internal report prepared by the nominated contract monitor of CORE, the Public Correctional Enterprise, for the Director of Correctional Services for the period 1 August 1994 to 31 July 1995. She stated that on 18 April 1997, the full responsibility for the monitoring of the contracts, had been transferred to the Correctional Services Commissioner. (It should be noted that in the course of the hearing senior counsel for the respondent, Mr Middleton QC, conceded that no contract monitors had been appointed pursuant to s.9D of the Corrections Act 1986. Their functions had been delegated to the Commissioner appointed pursuant to s.8A of the Corrections Act 1986.) Document 10 refers to monitoring of the contractor with respect to Prison Transportation Services. Part of the report, if released, would in Ms De Cicco's opinion, disclose information as to how a contractor discharges its duties including information in relation to the processing and systems which may benefit its competitors. Additionally, contracts for transport and escort services are currently being tendered in various Australian jurisdictions and release of the data may be commercially sensitive for the contractor. She said that a summary of document 10 has been prepared and is available publicly. The applicant relied upon the evidence of the following witnesses:- Kenneth Alistair Coghill currently a Senior Fellow of the Centre for Public Management, Monash Mount Eliza Business School, Monash University, but also formerly the Member for Werribee in the Legislative Assembly in the Victorian Parliament and Parliamentary Secretary of the Cabinet and later Speaker of the House, gave evidence to the Tribunal. He expressed the opinion that failure to release the information in dispute would reduce the accountability of the government to a level below that which prevailed prior to the adoption of the policy which has given rise to the privatisation of some correctional services and to a lesser level than that required under National Competition Policy. He gave evidence that prior to the adoption of the policy of privatisation, information of the kind sought in this case was freely and routinely provided to the Parliament through the Annual Statement of Financial Operations provided in annual reports of the Department. He said that the National Competition Policy is based on the findings of the Hilmer Report of 1983. The point of competition is propriety and value for money in order to achieve economic efficiency. Underlying the Hilmer Report is an underlying commitment to transparency in commercial relationships, including those involved in Government activities. The National Competition Principles Agreement is designed to promote maximum competition and makes no specific provision for commercial confidentiality, he said. He stated that in his view the contracting corporations would or should have been aware of the potential for disclosure at the time of tendering either under the Freedom of Information Act or the Corrections Act. In his view, non disclosure has the potential to give the impression that a "cosy relationship" exists between the executive and the relevant companies. He argued that disclosure would advance competition by ensuring that all tenderers are aware that contractual arrangements embarked upon will be open to public scrutiny. He said further that New Zealand had introduced policies for the private provision of public services at the same time as Victoria and that in New Zealand mandatory disclosure to Parliament was required of all management contracts. He said there had been no suggestion that such a requirement had compromised Government policy in New Zealand. He gave evidence that in the United States such contracts as those in issue would be wholly available to the public. Emeritus Professor Tony Vinson of the University of New South Wales in a statement of evidence, which was tendered (Exhibit C), expressed the views that public access to the operational procedures within institutions is a necessary basis for ensuring that prescribed procedures and actual practices within the prisons accord with legal and social norms and the declared intentions of the service providers. He said further that the public interest demands the publication of service delivery outcomes having regard to the nature of imprisonment. In a statement filed with the Tribunal (Exhibit D) Professor Arie Freiberg of the Department of Criminology, University of Melbourne, stated that his special fields of research are sentencing and corrections in regard to which he has published extensively. His research has led him to hold the opinions that the provision of correctional services carries with it greater responsibilities and more unusual requirements of accountability than most other areas of government services. He asserted that the system of accountability which operated in relation to public corrections in the past must be adapted and upgraded to ensure that similar or higher levels of accountability apply to privately conducted correctional services. He was of the opinion that current accountability mechanisms are inadequate and that the contract monitor system is inadequate as an accountability mechanism. He noted that no contract monitor had been appointed under s.9D of the Corrections Act 1986, and consequently no annual report had been provided pursuant to that section. He stated that as a general principle, the expenditure of public funds carries with it different responsibilities than the expenditure of private funds and that as the relative efficiency and cost of delivering correctional services publicly or privately is the main reason for market testing and outsourcing of public services, it is crucial that for evaluation purposes details of the contracts are released. He expressed concern that the assertion of the commercial in confidence exemption in relation to freedom of information requests had potential to exclude information which should be made available in the public interest. He stated that in respect of claims to commercial confidentiality a distinction can be made between commercial information provided prior to the determination of a tender and that which should be available after the decision has been made to enter into an agreement. He agreed that in some circumstances a distinction might be drawn between commercially confidential financial information and information in relation to the provision of correctional services, but that information relating to such issues as educational and health services should not be regarded as commercially confidential. He stated that "although commercial confidentiality is a legitimate basis upon which to restrict access to information" the "doctrine" of commercial confidentiality should be applied in a limited manner in the context of correctional services where the public interest in access to information about the conditions of imprisoned persons is "paramount". A statement of evidence (Exhibit F) of Dorothy Cherrie was filed in which she stated that she is incarcerated at the metropolitan women's correctional Centre at Deer Park. In particular she raised concerns about drug testing procedure but also in regard to other operational aspects. She expressed a similar view about the need for maximum disclosure. Amanda George a lawyer working with prisoners, in a statement of evidence (Exhibit G) said that since 1981 she has developed an expertise in the area of women and prison policy, home detention and prison privatisation. She pointed to difficulties in ensuring public accountability since privatisation has been introduced. She also noted that there has been no publication of an annual report incorporating any contract monitor's report pursuant to s.9D(3) of the Corrections Act 1986. In a further witness statement (Exhibit H) she referred in particular to the level of deaths in custody in private prisons being a cause of deep concern. A statement of evidence (Exhibit J) from Paul Moyle a law graduate specializing in criminal justice and penology was tendered before us. He is a senior lecturer in law at the University of Western Australia and is completing a doctorate on the privatisation of prisoners in Queensland. He has served as a legal official visitor for Queensland prisons, and as senior adviser to the Community Corrections Board. He has been Chairman of the Queensland Government Crime Prevention Summit and a Community external Inspector of prison operational standards in that State. He considers that the public interest requires release of contract monitor reports relating to private sector involvement as an essential element of accountability. He stated that in his extensive research into monitoring of private corrections, he has found that neither the framework for monitoring nor the monitoring itself has been adequate to ensure appropriate levels of accountability. Mr Moyle expressed the opinion that there has been inadequate reporting to government in the State of Victoria. He said, "Public interest requires disclosure to reduce the likelihood of non compliance with prison service specifications and service delivery outcomes". In a further statement (Exhibit K) Mr Moyle said that without access to information relating to the cure periods and formula for calculating financial penalties, the mechanisms by which the government enforces the contracts and the adequacy of those measures are not transparent - the consequence being that that safety and well being of prisoners and the expenditure of public monies is unable to be publicly scrutinised. He stated that "unlike other jurisdictions" Victoria had no statutory framework which "would mandate release" of information relevant to these issues. Victorian barrister William Zichy-Woinarski QC, in a statement filed with the Tribunal (Exhibit L) said that between 1992 and 1997 he was chairman of the Criminal Bar Association of Victoria. He expressed the opinion that: "As a matter of principle, it is essential that, if the State has the ability to deprive a person of his/her liberty, the State ensures to the utmost the safety of that person and that the community can be, and is, satisfied of the safety of that person whilst imprisoned". He said that there is a public interest in the transparency and accountability of the State in the exercise of its powers to carry out sentences of imprisonment and that without the information in dispute, the public cannot be assured that the processes and procedures under which prisoners are held are humane, lawful and properly reflective of the principles adopted by society. Subsequent to the hearing in this proceeding, all parties filed submissions in writing. The submissions of both the applicant and the respondent were detailed and extensive. We provide a summary of such submissions. THE APPLICANT'S SUBMISSIONS 2. Community concern is heightened by the sweeping privatisation of prisons in Victoria. 3. Accountability must incorporate the component of contractual arrangements with private providers. 4. Prison contracts are unique in that they must include the objectives of the prison system in an enforceable framework. Those objectives include security, care of prisoners, rehabilitation and provision of services at optimum level and minimum costs. 5. Contractual transparency is paramount in the light of the nature of the prison process. 6. Promises made by government about the benefits of privatisation require transparency for testing. 7. The role of the Tribunal is not to determine the merits of government policy but rather to determine whether public interest requires release of otherwise exempt material in the particular circumstances. 8. No evidence was led by the respondent in relation to security. The onus under s55(2) of the Act has not therefore been satisfied. The evidence of seven of the applicant's witnesses has not been challenged by the respondent or the third party and the Tribunal in exercising its discretion under s50(4) of the Act should give due weight to that matter in favour of disclosure. 9. The failure of the third party to lead evidence should be given weight by the Tribunal in determining public interest in disclosure in favour of the applicant. 10. Section 50(4) of the Act is to be interpreted consistently with the objects of the Act and to be exercised consistently with s16(1) of the Act. 11. The respondent has the onus of establishing that the public interest does not require that access be granted. 12. There is a line of High Court authority inferring that while the government can enter into confidential arrangements when the public seek information it must be disclosed unless it can be proved in the particular circumstances that it would be contrary to the public interest (So v Plowman Resources Ltd (1995) 69 ALJR 404 at 413). 13. In regard to the meaning of "requires" in s50(4), the applicant relies upon the decision in Re Mildenhall and Vic Roads (1996) 9 VAR 362 which determined that the word does not mean any more than that there must be a good reason on a balance of all relevant considerations in order for disclosure to be given. Submissions as to Public Interest 1. Ensuring the availability of a maximum amount of information to the public because of the unique place of prisons in the community; 2. there being sufficient information to enable public scrutiny and debate; 3. maintaining public confidence in the corrections system; 4. the transfer of significant State services to private companies; 5. transparent, open and accessible government; 6. full access to information constituting the primary contractual material; 7. providing access to enable discussion, review and criticism; 8. the contracting out of a central State power; 9. the proper funding of the imprisonment system; 10. knowing how taxpayer's money is spent; 11. ensuring the purity of public sector conduct; 12. the public being able to test the truth of Government assertions; 13. fair and humane treatment of prisoners; 14. the greater responsibilities and unusual requirements of accountability attending the provision of correctional services; 15. providing a means of assessing the contracts in the light of the fact that a contract monitor has not been appointed; 16. ensuring the accountability of the operators and the State in the light of the absence of an independent regulator; 17. ensuring that there is proper scrutiny of such contracts; 18. ensuring transparency in contractual relations between the State and companies; 19. being able to assess whether emergency procedures are adequate; 20. the restoration if appropriate of public confidence in the private prison system in the light of adverse media reports; 21. being able to access standards set and requirements for operation; 22. maintaining public confidence in the private prison system in the light of the number of deaths in custody; 23. ensuring that there is at least as much information available as is available in relation to public institutions; 24. ensuring full access to performance standards and cure periods; 25. having access to cure period and default information; 26. informed public debate about the administration of justice and correctional services; 27. maintaining transparency and open accountability in circumstances of possible and/or perceived conflicts of interest; 28. maintaining the public's respect for the State's system of imprisonment; 29. being informed about minimum standards and service delivery outcomes; 30. allowing full access to information in situations where threats of defamation proceedings may be seen to stifle public debate; 31. disclosure because the current contract accountability mechanisms are inadequate; 32. complete and open accountability and transparency in the administration and allocation of punishment; 33. access to policy and procedure for the use of biometrics technology; and 34. ensuring that those imprisoned are fully aware of the procedures and rules. THE RESPONDENT'S SUBMISSIONS 1. The Tribunal must be satisfied that public interest requires access. 2. The applicant carries the onus of establishing "good reason" for access to be granted. 3. Competing public interests must be identified and balanced. 4. In the case of a document exempt pursuant to s38, regard must be had to matters of public interest specific to the document, such that they reveal illegality, impropriety or wrongdoing. 5. The result of the balancing exercise must demand disclosure before an order should be made to release documents. The respondent made further general submissions which we summarize as follows: (a) In the light of the concessions by the applicant, the only question for determination is as to whether or not a case for the exercise of discretion imparted by s.50(4) has been made out. (b) The respondent does not accept that it bears any further onus, once the Tribunal is satisfied, or as in this case, the applicant concedes, that the documents are exempt. (c) Insofar as a document is exempted by s.38, a general public interest issue of itself could not operate to override Parliament's intention. (d) In a case to which s.38 of the Act applies, the public interest required for disclosure pursuant to s.50(4) must be of a higher order such as illegality, impropriety or potential wrongdoing as demonstrated or revealed by the documents. (e) The public interest in the privatisation of correctional services is general in nature and cannot form the basis of a public interest ground for the purposes of s50(4) save in cases where the process involved some form of illegality, impropriety or wrong doing; (f) The matter of public confidence in the correctional system is a matter of general public interest and not relevant to the exercise of the discretion in question. In regard to the issue of clearing the air, the applicant conceded that it had no interest in obtaining information relating to security. In regard to information relating to financial matters, there is no public disquiet, nor is there any undermining of public confidence related to such information. There was no evidence to the contrary. (g) Public interest in transparency of government arrangements is also a general public interest and cannot form the basis of a ground for purposes of the exercise of discretion under s50(4). (h) The public interest in public expenditure being transparent is also general in nature. (i) Public interests militating in favour of exemption include the following : (i) preservation of the existing competitive advantage which the State has; (ii) there is significant likelihood that release of the information will have the
result that in any further competitive review process, the price will become the primary
if not the only focal point for each tenderer. It is in the public interest that tenders
to provide prison services should involve consideration of innovative options and not be
motivated solely by price. The Respondent's Submissions as to Public Interest The respondent submits that it is wrong to assume the price paid to the prison contractor bears any contractual correlation to the cost of providing any service. It is submitted that the financial resources that any prison operator commits to the provision of any prison service and to the performance of any contractual obligation is a matter solely for the prison operator and that it is wrong to assume that any performance fee payable in respect of any particular category of service bears any correlation to the cost that a prison provider will incur in the provision of such service. It is submitted that the fee constitutes a bonus payable to the prison operator in the event of the operator obtaining a given level of service and that the given level of service does not affect the prison operator's obligation to provide the contracted services. It is submitted that the obligation to provide the contractor's service remains on foot irrespective of the performance fee structure. On this basis it is submitted that the release of the edited information cannot be seen to further any public interest associated with the care provided by private prison operators to prisoners. It is submitted that the grounds of public interest advanced by the applicants are merely general in nature and cannot be relied upon in exercise of the discretion provided by s.50(4) of the Act. Furthermore, the respondent submits that it is clear on the evidence that there are further and competing public interests which support the contention that the edited parts of the Prison Services Agreements should remain exempt. In summary, the submissions as to public interest which compete with the public interest relied upon by the applicant are as follows: (i) maintaining confidentiality in regard to documents concerning security; (ii) ensuring that prisoners do not have access to information which may assist them to avoid, nullify or reduce the effectiveness of prison, security, practices and procedures; (iii) maintaining good order, management and security of prisons; (iv) maintaining confidentiality with respect to financial details of contracts entered into by the State for services which will be subject to competitive review; (v) ensuring that private sector bodies are not deterred from transacting business with the State due to the State's inability to maintain confidentiality; (vi) ensuring that the public sector approach in structuring briefs and agreements is not adversely affected by a perceived need to withhold sensitive details; (vii) ensuring that prisoners are not encouraged to cause incidents within the prison or fail to comply with directives or requirements; and (viii) ensuring that prisoners, their families and other members of the public are able to communicate with the contract monitor on a confidential and frank basis. The Submissions of Australian Corrections Investments Pty Ltd We turn now to our conclusions. "The statute does not contain any definition of the public interest. Nevertheless, used in the context of this statute it does not mean that which gratifies curiosity or merely provides information or amusement . Similarly it is necessary to distinguish between 'what is in the public interest and what is of interest to know' .. On the other hand, one feature and one facet of the public interest is that justice should always be done and should be seen to be done" : Ellis v Home Office [1953] 2 QB 135 at p.147, per Morris LJ. It is this feature of the public interest, namely, the appearance of justice having been done, which is inherent in the proper administration of justice". And at p75 : "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals : Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at p480, per Barwick CJ. There are, as appears to be implicit in the quoted passage of the judgment of Morris LJ in Ellis v Home Office, several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest". In Re Just and Department of Justice (1996) 10 VAR 126 at 129, the Administrative Appeals Tribunal said : "When s50(4) speaks of 'the public interest' it refers to the benefit of the community in general, not the benefit of any individual, much less the curiosity of any individual; nevertheless where there has been widespread debate and disquiet as to a particular matter, the public interest may require release of the documents which either confirm the grounds for public disquiet or dispel them". In Re Easdown and Director of Public Prosecutions (No 1) 2 VAR 102 at 120, the Administrative Appeals Tribunal said : "In the absence of sufficient countervailing factors, it is in the public interest for the community to be properly informed about the workings of government, through its various agencies, so that intelligent discussion may occur concerning the adequacy and worth of such activities. In a case such as this there is a clear public policy consideration supporting fairly broad access to information. This may either confirm suspicions which can then be dealt with or disperse them so the air is cleared". For information otherwise exempt to be released pursuant to s50(4), the public interest
must require that access be given. The word "requires" is imperative in tone. In
Just's case (supra) at p129, the Administrative Appeals Tribunal said : In applying s.50(4), we give to the word "requires" neither a restrictive not a loose meaning but rather the ordinary meaning of the word and that in determining whether public interest requires that access be granted we must embark upon a balancing exercise, viz. the exercise of balancing the public interest in favour of disclosure against the public interest in favour of non-disclosure. In determining the balance, one issue of substance is that of accountability of Government. In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 138-139, the High Court said : "The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers, the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for the decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their electorate representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative". In Re Thwaites and Department of Premier and Cabinet, AAT of Victoria, 23 March 1994 (unreported), the Tribunal was concerned with, inter alia, documents relating to the government's master agency media service. Although the Tribunal found certain material to be exempt, in the light of considerable public debate in relation to the subject matter involving speculation concerning a number of matters surrounding a contract including revised tenders of relevant companies, Ms Preuss determined to release the information and in her reasons for decision said : "The public debate is not surprising given the fact that the contract is a substantial and lucrative one and it was keenly sought by advertising agencies. The contract has an added significance in that it would appear that contracts let by Leeds will not be subject to scrutiny by the State Tender Board. In my view, release of documents 13, 16 and 19B will assist in establishing the criteria on which the contract was awarded rather than allowing the matter to remain one of conjecture, speculation and rumour". At p40 of her reasons for decision, she added: " . (C)ommercial entities must expect that in certain circumstances, material provided to government will be released by virtue of the Act". A similar view was expressed by Mr Nedovic PM in Re Thwaites and Department of Health and Community Services AAT of Victoria 22 August 1994 (unreported). At p17 of his reasons for decision, he said : "There is a public interest in accountable government. Accountable government includes the release of information as to government decision-making affecting the public. Release of such information assists the process of informed public participation in the making of government decisions. Release of such information is in conformity with the object of the Act". Re Thwaites and Metropolitan Ambulance Service (1996) 9 VAR 427 concerned documents relating to the contracting out of non-emergency ambulance services including tender specifications and relevant contracts. Mr Galvin DP found that the information contained in the contracts applicable to cost factors was exempt pursuant to s34(4)(a)(ii). At p477 of his reasons for decision, he said : "Commercial undertaking and business entities when negotiating with government agencies and statutorily established bodies such as MAS (Metropolitan Ambulance Service) in circumstances of the kind involved in this matter or in circumstances of an equivalent order, must anticipate a greater degree of public scrutiny and the likelihood that by resort to the Act, information provided to them or by them might be required to be released to the public". He had earlier said (at p477) : "Furthermore, the transfer of a significant ambulance service from its statutorily established provider to profit motivated private companies is of such public significance that it must be seen to give rise to a high level of entitlement of the public to be well informed as to the circumstances, thereby requiring release not only of information relevant to the sets of circumstances referred to above, but to such other relevant information much of which in other circumstances would be exempt from disclosure". The evidence and submissions placed before us tended to address the disputed information generally rather than item by item. Furthermore, as earlier stated, some of the evidence of the various witnesses amounted to assertion and personal opinion, much of which fell short of evidence of compelling weight. In the case of the respondent's witnesses, statements of perception as to the likely outcome of release of the information in dispute, namely that it would disadvantage the respondent by causing briefs to be more conservative and less well defined and by prejudicing the tender process and that it would disadvantage private providers, were in the nature of speculation and unsupported by hard evidence. In the case of the applicant's witnesses, assertions of the impact of non-disclosure and the advantages of disclosure were to a large extent expressions of private opinion and again unsubstantiated by demonstrable fact. In the four documents in dispute, some material is claimed to be exempt on the grounds of confidential commercial information contained in it. Some material is claimed to be exempt because it is alleged to relate to security and some is claimed to be exempt on both grounds. We turn first to the security issues. Security Issues In considering the relevant information in detail, the Tribunal has had regard to the fact that in the context, mere relevance to some broad issue of security does not necessarily give rise to public interest. We have examined the information in order to determine any possibility of risk to security, in which case disclosure would clearly not be in the public interest. We were not presented with evidence or submissions dealing with the disputed material word by word, line by line or even paragraph by paragraph. On its face, much of the material whilst being concerned in part with security, if released, would not give rise to any likely or even possible security risk. In regard to security, it is claimed by the respondent that the following information
should not be disclosed : Document 1: This information is statistical in nature and its release does not in our view pose any apparent or likely threat to security. There was no convincing evidence to the contrary. Page 106 paragraph 65.2(b)(i)(A) - (E) (both inclusive). This information which, as described in the edited material already made public, consists of elements relevant to the calculation of performance linked fee, if released, is in our view unlikely to constitute a security risk. Indeed, its release may be seen as providing some comfort to the public in that regard. Page 107 paragraph 65.2(b)(ii)(A), (B), (iii)(A)(B) and (iv)(A)(B)(C). This information relates to vocational training, prison industries, health and other programmes. We are unable to see how its disclosure can be seen to give rise to security concerns. Page 178-180 (both inclusive). On its face and in the light of the evidence, the disputed material cannot be regarded as touching upon security. Rather, we conclude that the public might be comforted by the knowledge that the matters referred to are relevant to performance measures. Document 2: None of the evidence warrants a conclusion that disclosure of the figure at the end of the first paragraph is likely to give rise to any issue of security. Page 145 paragraph 65.2(b)(1)(A) - (E) (both inclusive). This information is similar to that contained on page 106 of document 1. We are unable to see how its release could compromise security. Pages 146 and 147. Similarly, the disputed material on these pages is of like order and kind as that on page 107 of document 1 and the we hold a similar view of it. Pages 220-222 (both inclusive). The disputed information is described as "Required Outcomes". Its disclosure would appear to be likely to give some comfort to the public rather than to raise issues of security. Document 3: Pages 274-276 (both inclusive). In our view, the information on these pages relates to prison security and its release is not in the public interest. It is noted that pages 222-224 (both inclusive) consist of information of a similar kind to that on pages 178-180 (both inclusive) of document 1 and pages 220-222 (both inclusive) of document 2. However, in this case, it has not been marked as claimed to be exempt for reasons of security. Assuming that that was a matter of oversight, in any event, we are of the view that we would regard it in the same way as we have regarded the equivalent information in documents 1 and 2. The same position obtains in regard to the figure occurring on page 31 of document 3 which is information of a similar kind to that on page 30 of document 2. We hold the same opinion in regard to it. Document 10: We find that Document 3, pp.274-276 (both inclusive) and Document 10, 2nd and 3rd pages of s.1, the 3rd page of attachment 1 and pp.2-16 (both inclusive) of attachment 2, are exempt from disclosure. COMMERCIAL CONFIDENTIALITY Mr Noble predicted that release of the information in dispute would disadvantage the respondent in that it would have a damaging impact upon the future tendering process. There is of course no certainty that there will be a retender process for either the accommodation or corrective services provided under the contracts in question. The first possible retender process is in relation to the provision of corrective services near the end of the current 5 year "service term" in each contract and possibly near the end of tri-annual terms thereafter. Information which is commercially important at the time of the tender process is likely to be little more than of mere historical interest upon completion of the process. In any event, a perusal of the documents in dispute does not disclose information which on its face is likely to result in the adverse impact contemplated by Mr Noble. Most of it is unremarkable and although strictly commercial is not of a sensitive nature. Numerous examples may be found of unremarkable material which is the subject of a claim for commercial confidentiality. For example it is difficult to see what is in any way sensitive in terms of commercial confidentiality about the "Defects Liability Period" found on p.10 of the Women's Prison Agreement or the amount of liquidated damages to be paid for non-completion of the construction of the facility by the due date as may be found on p.46 of the same contract. The same can be said of the details of insurance matters appearing on p.48 of such contract. On the other hand the calculations of the Correctional Services fee to be found on pp.95-96 have obvious commercial confidence aspects to them. However, as to the submission of the respondent that deleted matters other than security relate principally to price and that price bears no correlation to the cost of provision of services, we find upon an examination of the three contracts that the submission is not borne out. Whilst it is true that some edited matters relate only to financial issues mostly of the nature commonly found in construction contracts and relevant to the course of prison construction numerous examples can be found that do not relate merely to price. By way of example the Women's Prison Agreement contains the following material which
has been deleted: Clause 58(f) The composition of the correctional services fee by reference to (inter alia) education, health and prison industries. Clause 55(2) The composition of the performance linked fee relating to prison operations, education, vocational training, prison industries, health and other programmes Clause 70.4(e) Matters which relate to the solvency of the contractor. Annexure K The time in which the contractor has to "cure" an Accommodation Services Default (which, inter alia, is defined as a failure to provide a facility which satisfied the facility standards referred to in Clause 24.4). Whilst it is true that such matters do relate partly to the payment to be made to the prison service provider they also relate to the provision of services. The performance linked fee set out in Clause 64 of the Men's Metropolitan Prison Agreement and in Clause 65 of the other two agreements is an example of what we understand to be an incentive to the prison provider in terms of delivery of prison services. An example of a disincentive can be found in Clause 64 of the Women's Prison Agreement relating to prison escapes. However, we do not accept that these matters are merely matters of price. They, in our view, go to the heart of the level of services expected to be provided by the contractor. By way of further example the Women's Prison Agreement provides by Clause 42 that correctional services are to be provided by the contractor. The correctional services to be provided are defined in the broadest terms. Clause 43.2 provides that if the Correctional Services supplied do not comply with the stated criteria then the Commissioner may determine by issue of a certificate that the Correctional Services fee should be reduced. However, the effect of this reduction cannot be understood without a full reading of Clause 58(1), most of which has been deleted. This in our view is not merely a matter of price. It is a matter directly relevant to the performance expected of the contractor in terms of the provision of prison services. We recognise the fact that Mr Noble's assertions in regard to the adverse impact of release, are of course by their nature inherently incapable of proof. It was his view that release of the information would expose private providers to disadvantage in that their cost structure details would become known to competitors and furthermore that future potential bidders would be discouraged from entering the bidding process. We regard those assertions as being speculative. However, it is clear that in the absence of release in any tender process the present providers would have an advantage over competitors because they would know the cost structure which had been negotiated and the competitors would not. We are unable to see how a "level playing field" would disadvantage either the private prison provider or the public interest at retender stage. Likewise we consider it is speculative to assume that potential bidders will be discouraged by the knowledge that in due course, if they are successful that contract details will be made public. What is not speculative, but is abundantly clear, is that there is a serious public interest in the transfer of the important function of the administration of prisons from the State to the private sector especially when it is a matter of comparatively recent experience against a background of a long tradition of State control and management. In Commonwealth of Australia v Northern Lands Council 176 CLR 604 (at 615), the High Court conceded there to be an increase in public insistence upon the concept of open government. However, in that case which concerned Cabinet documents, it did not consider that that interest outweighed the public interest that Cabinet deliberations should remain confidential in order to preserve within the Cabinet, an exchange of differing views and the maintenance of the principle of collective responsibility for Cabinet decisions. At pp618-619, the Court said : "In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations. . It follows that, in our view, it is only in a case where there are quite exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents recording Cabinet deliberations that it will be necessary or appropriate to order production of the documents to the court". In the case before us, the evidence was less than conclusive that disclosure would have any serious adverse consequence for the further tendering process, which process, in any event, is of a substantially lower order than the deliberations of Cabinet. In this case the evidence of public interest in the maintenance of confidentiality, when weighed against the public interest in transparency in relation to the operation of prisons does not warrant a finding of the existence of a public interest more significant than that of open and accountable government. In a paper (Exhibit M) presented at the Australian Institute of Criminology Conference in June 1997, his Honour Mr Justice Vincent of the Supreme Court of Victoria, having made some general observations in regard to the adoption by western governments of the "user pays" concept of the provision of government services went on to observe : "The State in the due performance of its function to attempt to respond to and control socially dissociative behaviour through its Courts imposes sentences. These impact directly and personally upon the individual subject to them, are imposed for specific purposes and are of vital interest to the wider society as well as the offenders and those who directly suffer from their conduct. Having exercised this power, which can in some circumstances result in the denial of a person's liberty for the remainder of his or her life, the community must accept a continuing, indeed a moment to moment responsibility for the consequences which flow from it. This responsibility is non-delegable. However, this does not mean that the State cannot act through agents, for, obviously, it must. When the agent is directly employed by the State, accountability for State actions is more easily seen and responsibility attributed where necessary. A quite different situation is likely to exist when the agent is a private contractor. The nature of the arrangement may be partially concealed by the existence of confidential agreements, the detail of which is never disclosed. It is not inconceivable that both may have a vested interest in ensuring that breaches or inadequacies are not publicly revealed. The private contractor, of course, possesses a powerful motivation to cover up any problems with which it may have difficulty dealing if it is to maintain its relationship and its profits. There are, in consequence, two fairly basic steps which need to be taken to avoid the variety of problems to which this scenario can give rise. First, there should be complete transparency in relation to the contractual arrangements which exist between the State and the private providers whether the service relates to the operation of a prison or community based disposition. Second, the real power and supervision must remain directly under Department of Justice control. To the extent that it is exercised through a monitoring process, a supervision must be continuous and genuine. Above all, it must not be directed only to the question of whether the letter of the contract between the State and the provider has been complied with. That is not the role of government in the corrections system no matter how carefully written is the contract". His Honour's opinion that there should be "complete transparency" in relation to arrangements between the State and private prison providers is given weight both by the fact that he is a Supreme Court Judge experienced in criminal law and by the fact that he has a close association with prisons as Chairman of the Adult Parole Board. There is little that is more obviously in the public interest than the issue of the liberty of persons and it is an important aspect of that interest that the process of the incarceration of persons and what happens to them including what arrangements are made for their accommodation and what corrective services are provided during the course of their incarceration be publicly transparent. It is a particular aspect of that interest that the public be well informed of the arrangements between the private operators of prisons and the State so as to be able to assess the appropriateness of the arrangements in each case. The importance and public significance of the privatisation of the prison system was not in contest before us. It is not the role or function of this Tribunal to express any view as to whether the notion of privatisation of prisons is a good or a bad thing. That is a matter for the government of the day. However, it is obvious in our view, that contracts which relate to matters as fundamental to the rule of law and to our system of justice as prisons, are entirely different to other contracts which privatise more commercial state entities. It is inherent in the democratic system that important issues of the nature of prisons and their management be publicly transparent so that there can be the best possible public understanding, awareness and if need be, debate. In regard to the relatively new experiment of privatisation of prisons, there has already been a great deal of public discussion largely through the press. The press is not necessarily illustrative of what is in the public interest. However, it is one element of evidence as to public concern and in this case, what it reflects of relevant public debate militates in favour of disclosure. Information in dispute which conveys or tends to convey assurance to the public of adequacy and suitability of arrangements in place in a particular case may be as appropriate for release as information which may or may tend to disclose shortcomings. In circumstances of public concern, to release such information is likely to have the consequence of allaying fears and clearing the air. The evidence presented to the us and the submissions made to us do not warrant any other view as being appropriate in this case. The evidence before us does not lead to a conclusion that the future tender process would be harmed should the disputed commercial information be disclosed. Indeed, its non-disclosure may well afford an undue commercial advantage to those entities whose tenders were previously successful and may thereby give rise to an impediment to the government obtaining the most favourable arrangement. In this case, the evidence does not warrant a finding that competitiveness in tendering with potential advantage to government (and thus the public) would be adversely affected should the disputed commercial material be released. Furthermore, some of that material is now largely of historical interest and unlikely to have any significant commercial impact upon the future tender process. We reject the argument advanced on behalf of the respondent that release of financial details could cause future tenderers to focus on price thereby causing an artificial lowering of prices to the point where the level of quality of services might not be maintainable given the revenue stream available under the contract. Such an argument appears to ignore the fact that the Minister is not bound to accept the lowest price tendered for the provision of services and has the means to set benchmarks which require prospective tenderers to focus on innovative packaging of services rather than mere price. We assume that any corporation tendering for a prison contract would demonstrably be a credible solvent and responsible corporation. We think it unlikely that such a corporation would be seduced into focusing on price to the exclusion of provision of adequate services. The combined force of the public interest in transparency and the need to clear the air as to arrangements between the State and private operators inevitably leads to a conclusion that in the particular circumstances of the private prison contracts, no other public interest raised before the Tribunal is more important. In coming to this conclusion, we accept the submission of the respondent that in weighing the balance of competing public interests, and including consideration of Parliament's intention in amending s30(1) of the Corrections Act 1986, the public interest override should be of a high order. In our view, the fact that prisons are concerned with the rule of law, the liberty of the individual, the authority of the State and with issues of procedural justice, makes the necessity for transparency of the contractual arrangements a public interest issue of a high order. In this regard we see a considerable difference between contracts relating to the management of prisons and contracts relating to other more commercial arrangements of the State. For this reason we do not consider that the public interest ground upon which we rely requires evidence of illegality, impropriety or potential wrong doing before it may be used in the consideration of the balance of competing public interests. In the circumstances, the proper course is for the us to release the information save that which impacts upon issues of security. In our view, the only parts of the information in dispute which do so are the following : Document 3: pages 274-276 both inclusive
Subsequent to the hearing, it was requested that the Tribunal remain seized of the issue of the exempt or non-exempt status of document 8. Described in the Schedule of documents in dispute as "a full copy of the Port Phillip Prison Operating Manual, prepared by Group 4 Correction Services Pty Ltd" and to which access in part was given by the respondent. However, nothing was said of that document during the course of proceedings. In our view, it is inappropriate to purport to re-enliven what was at the time a dead issue, especially on the basis that it might or might not become once again a live issue. In the absence of evidence and submissions enabling us to make a determination in regard to document 8, we are not disposed to allow the application to remain in part undetermined on such a vague and uncertain basis. In the circumstances, the Tribunal declines to remain seized of that particular issue. |
|