The Human Rights Review Tribunal has dismissed a claim by a prisoner that the Department of Corrections interfered with his privacy by withholding his outgoing prison mail.

The prisoner claimed the department’s actions were in breach of Privacy Act principles 1-4 and 9. He also said the department had breached principle 11 by disclosing the letters to Police.

The matters at issue depended on whether Corrections withholding of the prisoner’s mail was authorised under the Corrections Act and, in particular, whether the department had reasonable grounds to believe that releasing the letters was likely to prejudice the maintenance of the law.

Background

The prisoner was being held on remand for serious offences against his girlfriend and a police officer who attended the callout. While in prison, he wrote to his girlfriend. A police officer became concerned his letters were intended to get her to drop her charges against him. The officer emailed an intelligence officer at the prison and asked for copies of the letters being sent by the prisoner. As a result, the outgoing letters were sent to the Prison Intelligence Unit where they were held.

Soon afterwards, a prison intelligence officer emailed the police officer to say he had permission to provide him with a copy of one letter and a production order would be required for any other letters. Corrections would hold all the letters until a production order was presented.

Meanwhile, the prisoner, who was a prolific letter writer, became suspicious the Department was interfering with his outgoing letters. He had been told by his girlfriend that she had only received one letter from him. The prisoner complained to his prison unit manager. He said the interference with his mail made him angry, anxious, paranoid and upset.

At this stage, Police had yet to provide a production order, so the Department decided to release the mail to the intended recipients. However, the police officer obtained a production order a few days later and served it on the prison. From that time until the expiry date on the production order, the prisoner’s mail was forwarded to the police officer.

Complaint

The prisoner complained to our office that Corrections had breached six of the information privacy principles of the Privacy Act. In his statement, he said his mail:

• had been collected unlawfully, in breach of principle 1
• had been collected indirectly and covertly, in breach of principle 2
• was collected without him being informed, in breach of principle 3
• was collected unlawfully, in breach of principle 4
• was retained without good cause, in breach of principle 9
• was copied and retained and the disclosure of these copied letters breached principle 11.

Privacy Commissioner view

Section 7 of the Privacy Act says if another piece of law allows or requires personal information to be used in a specific way - that will override the general provisions of the Privacy Act.

We concluded that Corrections had not breached principles 1-4 and 9. The Department’s withholding of the letters was permitted under section 108 of the Corrections Act because it believed on reasonable grounds the correspondence was likely to prejudice the maintenance of the law.

Although we did not find an interference with privacy, we issued a certificate of investigation enabling the complainant to take the matter to the Tribunal, should he choose to do so.

Tribunal view

The prisoner then took his complaints in relation to principles 1-4 and 9, to the Tribunal.

The Tribunal agreed with our view about principles 1-4 and 9. It said the prisoner’s mail had been lawfully withheld under section 108 of the Corrections Act.

Section 108(1)(d)(v) is specific. It says a prison manager may withhold mail between a prisoner and another person if it is correspondence that the manager believes on reasonable grounds is likely to prejudice the maintenance of the law (including the prevention, detection, investigation, prosecution, and punishment of offences, and the right to a fair trial).

Based on the information it had received from Police, Corrections believed the prisoner was manipulative, that he had and would continue to try and get the victim to withdraw her complaint. The Police therefore wanted copies of any letters he sent. Despite the screened letters having appropriate content, The Tribunal found that the belief that they could have prejudiced the maintenance of the law remained reasonable.

The Tribunal said the application of section 108 of the Corrections Act and section 7 of the Privacy Act meant no interference with the prisoner’s privacy could be established and dismissed the claim.

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Human Rights Review Tribunal, law enforcement