C v Secretary, NSW Treasury

[2001] NSWADT 217

CITATION:	C -v- Secretary, NSW Treasury [2001] NSWADT 217
DIVISION:	General Division
PARTIES:	APPLICANT C RESPONDENT Secretary, NSW Treasury
FILE NUMBER:	013081
HEARING DATES:	30/08/2001
SUBMISSIONS CLOSED:	08/30/2001
DATE OF DECISION:	12/17/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	amendment of documents
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Morgan v Director General, Department of Education and Training [1999] NSWADT 91 Doelle v Legal Aid Office , Decision No 93005 (24 November 1993) Crewdson v Central Sydney Area Health Service [2000] ADT 184 Re Stephens and Victoria Police (1988) 2 VAR 236 Re Resch and Department of Veterans Affairs (1986) 9 ALD 380 Director General, Department of Community Services -v- S [2000] NSWADTAP 27 Re Cox and Department of Defence (1990) 20 ALD 499, 502 Re Applicant and Department of Education and Training, Children’s Youth and Family Services (1998) 53 ALD 509 Re Gordon v Department of Social Security (1991) 25 ALD 335
REPRESENTATION:	APPLICANT In person RESPONDENT R Beech-Jones, barrister
ORDERS:	1. Mr C has a made out a prima facie case that the report in question is incomplete, incorrect, out of date or misleading in a material respect; 2. Matter to be listed for further directions so that the substantive matter can be determined.

Introduction
1 The applicant has not been identified by name in these proceedings at his request. The document in dispute is a medical report prepared by Dr Yolande Lucire in relation to Mr C (the report). Mr C was given access to the report after making an application under Freedom of Information Act 1989 (the FOI Act). The report contains sensitive personal information about Mr C. The report concluded that:
Mr C has a “personality disorder which is primarily narcissistic but occasionally paranoid as well.”
2 Mr C maintains that this diagnosis is incorrect and that certain passages in the report are incorrect, incomplete or misleading. He is seeking amendments to the report.

3 These preliminary proceedings arise from a submission by the Secretary, NSW Treasury (the agency) that the Tribunal needs to be satisfied, as a preliminary matter, that the applicant has discharged the initial or evidential burden. According to the agency, that burden is to present evidence sufficient to raise a prima facie case that the report is incomplete, incorrect, out of date or misleading. The Tribunal heard submissions on this point on 30 August 2001.

4 In retrospect, it would have been quicker and cheaper for the parties if the matter had gone directly to a substantive hearing. Under s 73 of the ADT Act, “The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” Under s 73(5)(a) of the ADT Act the Tribunal is “to act as quickly as is practicable.” Having a preliminary hearing on a question of whether an initial onus has been satisfied is a slow and formal way of dealing with Mr C’s application. In general, if an agency wishes to make an application at the hearing that an applicant has not discharged his or her evidentiary burden, then the matter can be dealt with at that time and if it is unsuccessful, the substantive issue can be determined. By conducting a separate hearing into this issue, both parties were put to unnecessary expense and delay.

Background
5 On 22 December 1998 Mr C lodged a workers compensation claim against his then employer, the Commissioner of Corrective Services. In support of his claim he lodged a medical report dated 15 December 1998 by his treating psychiatrist, Dr Howard Napper. In that report Dr Napper stated that Mr C suffered from an adjustment disorder, depression and anxiety.

6 On 5 January 1999 Mr C attended an interview with a consultant psychologist Ms Judith Fischer as arranged by the agency. On 6 January 2000 Mr C attended a clinical psychiatric consultation with Dr Yolande Lucire, a consultant psychiatrist. Following that consultation, Dr Lucire prepared a report for her client, IMC Medical Services.

7 Mr C was given access to the report under the FOI Act. By letter of 26 February 2001, Mr C wrote to the agency seeking an amendment of the report. Section 39 of the FOI Act sets out the requirements for an application to amend a document:

A person to whom access to an agency's document has been given may apply for the amendment of the agency's records:
(a) if the document contains information concerning the person's personal affairs, and
(b) if the information is available for use by the agency in connection with its administrative functions, and
(c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading.
8 The agency conceded that the report contains information concerning Mr C’s personal affairs, that the information is available for use by the agency in connection with its administrative functions, and that, in Mr C’s opinion, it is incomplete, incorrect, out of date or misleading.

9 Section 43 sets out the manner in which an agency may determine an amendment application:

(1) An agency shall determine an application:
(a) by amending its records in accordance with the application, or
(b) by refusing to amend its records.
(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 47 and other provisions of this Act, be taken to have determined the application by refusing to amend its records in accordance with the application.
10 The agency refused to amend the report but added a notation pursuant to s 46(2) of the FOI Act. Section 46(1) and (2) state that
(1) If an agency has refused to amend its records, the applicant may, by notice in writing lodged at an office of the agency, require the agency to add to those records a notation:
(a) specifying the respects in which the applicant claims the records to be incomplete, incorrect, out of date or misleading, and
(b) if the applicant claims the records to be incomplete or out of date setting out such information as the applicant claims is necessary to complete the records or to bring them up to date.
(2) An agency shall comply with the requirements of a notice lodged under this section and shall cause written notice of the nature of the notation to be given to the applicant.
11 The notation was in accordance with Mr C’s letter of 9 April 2001.

Initial or evidential burden
12 Mr C agreed with the agency’s submission that as the applicant for an amendment to a document, he bore an initial or evidential onus. The nature of that onus is set out in detail in the agency’s submissions dated 6 June 2001. In brief, under s 61 of the FOI Act, the agency bears the legal (or persuasive) burden of establishing that the determination is justified. However, in amendment cases, the applicant has an initial or evidential burden to raise a prima facie case. No standard of proof attaches to the evidentiary burden because it is not, strictly speaking, a burden of proof at all, rather it is a burden to introduce evidence. This view has been endorsed by the Tribunal in Morgan v Director General, Department of Education and Training [1999] NSWADT 91 President O’Connor said at [38] - [39]:

This general position does not distinguish between determinations relating to access and those relating to amendment. Although the ultimate burden of establishing justification for a determination rests with the agency or Minister, where the agency or Minister has released the document and an applicant seeks amendment of it, it seems appropriate that the applicant bears an initial or preliminary burden to provide evidence in support of the application for amendment. I agree with the approach taken by the Information Commissioner of Queensland in Doelle v Legal Aid Office , Decision No 93005 (24 November 1993) at [18]:
"Pursuant to s 81 of the FOI Act, [the agency] has the onus of establishing that its decision is justified. ... [W]hile on a review ... the ultimate legal onus remains on [the agency], a practical or evidentiary onus shifts to [the applicant] to provide evidence to support his entitlement to relief ... on the basis that the documents in issue contain information that is inaccurate, incomplete, out-of-date or misleading."
This question has also been examined by the Australian Law Reform Commission in its report: Open Government: A Review of the Federal Freedom of Information Act 1982 (1995). At [12.22] it observed:
"While an agency has a duty to consider an application for amendment, the Review considers that the onus of satisfying the agency that there are grounds for amendment rests largely on the applicant. The agency may make inquiries and take action to satisfy itself about those grounds, but it should only be required to do whatever is reasonable in the circumstances. If an applicant seeks review of a decision refusing to amend a document the agency must justify its decision. It does not have to prove that its record is accurate."
(These observations were made in the context of a discussion of whether amendment applications might have the potential to divert unreasonably agency resources.)
13 Once an applicant has provided the necessary evidence, it then falls to the agency to assess the evidence provided by the applicant in accordance with its obligations under s 44 of the FOI Act. Section 44 sets out the circumstances in which an agency may refuse to amend its records:
An agency may refuse to amend its records in accordance with an application:
(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or
(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or
(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.
Issue
14 Based on the test set out in s 44(a), the issue to be determined in these proceedings is whether the applicant has discharged his initial or evidential burden to raise a prima facie case that the report is incomplete, incorrect, out of date or misleading in a material respect.

Applicant’s evidence
15 Mr C sought to amend the report by drawing a line through certain words and phrases. With the possible exception of one suggested deletion, (that she could not call Mr C “a reasonable man”) all the words and phrases relate to Dr Lucire’s diagnosis of Mr C as having a paranoid delusional disorder and/or a narcissistic personality disorder.

16 Mr C presented evidence consisting of two letters written by him dated 26 February 2001 and 28 May 2001 and several annexures including medical reports, correspondence and memoranda.

17 Mr C alleges that several factual matters in the report are incorrect or incomplete. In relation to these matters Mr C provides evidence from his own recollection that certain statements are factually incorrect. Where Mr C alleges that statements in the report are inconsistent with other available evidence, Mr C has produced that evidence. Examples include the statement of Mr Michael Batty, dated 21 February 2000, correspondence from Commander David Farrel to Rod Woodham dated January 1997, and a memorandum from Dr H Gapper to the Department of Corrective Services dated 27 April 1999.

18 Mr C also challenges several opinions expressed in the report as misleading. He enclosed copies of other medical reports which expressed opinions which were inconsistent with the conclusions reached in the report. These reports were a report from M Dent, consultant psychiatrist dated 26 April 1992, a report of Dr Napper dated 15 December 1998 and a report of Ms Fischer dated 13 January 1999.

19 Mr Beech-Jones, representing the agency, compiled a table setting out the paragraph in the report and the evidence relied on by Mr C to dispute a statement made in that paragraph. Mr Beech Jones set out the agency’s response to Mr C’s evidence in this table.

Applicant’s submissions
20 In support of his submission that certain words and phrases should be drawn through, Mr C relied on the four principles stated in Crewdson v Central Sydney Area Health Service [2000] ADT 184 at [53]. That decision is currently on appeal to the Appeal Panel of this Tribunal. Those principles were derived from a decision of the Victorian Administrative Appeals Tribunal in Re Stephens and Victoria Police (1988) 2 VAR 236 at 239:

"1. the facts underlying such opinion have been thoroughly discredited or have been demonstrated to be totally inadequate;
2. the person forming such opinion was tainted by bias or ill will, incompetence or lack of balance, or necessary experience; 3. the factual substratum underlying the opinion is so trivial as to render the opinion formed dangerous to rely upon and likely to result in error;
4. the facts upon which the opinion was based were misapprehended."
21 Mr C relied on all four categories as applicable to the report. In relation to principles 1, 3 and 4 above Mr C relied on the contents of his letter of 26 February 2001 and some supporting material. In relation to principle 2, Mr C relied on seven additional points marked (a) to (g) in his letter of 28 May 2001.

Agency’s submission
22 The agency submitted that the four principles referred to in Re Crewdson state the position too narrowly in some respects and too broadly in others. The agency submitted that the correct approach was that identified by the Federal Administrative Appeals Tribunal (AAT) in Re Resch and Department of Veterans Affairs (1986) 9 ALD 380, Re Applicant and Department of Education and Training, Children’s Youth and Family Services (1998) 53 ALD 509 and Re Gordon v Department of Social Security (1991) 25 ALD 335. On the basis of these decisions, the agency extracted the following principles:

It is useful to draw the distinction between the medical history disclosed in the report and the opinion based on that history ( Re Resch at [35]);

To the extent that RR v Department of the Army is authority for the proposition that an expert’s opinion based solely on discredited facts cannot be allowed to stand then it is too narrow (Re Resch [35]);

The better view is that where the principal factual support for the opinion is shown to be erroneous then the opinion cannot stand (Re Applicant and Department of Education at [65]);

At a minimum it is necessary to have evidence from appropriately qualified medical experts before it can be found that the relevant opinion is incomplete, incorrect, out of date or misleading (Re Gordon at 339, [17]). Even then, the mere production of contrary medical opinions is not sufficient to demonstrate incorrectness (Re Resch at 389 [38]). Presumably the reports must convince the decision maker that the impugned opinion is not one capable of being held by a competent practitioner in the field.

23 I accept the first three propositions advanced by the agency as being supported by the case law. I also agree with the agency’s submission that the first principle enunciated by the Tribunal in Re Crewdson is too narrow. In Director General, Department of Community Services -v- S [2000] NSWADTAP 27 the Appeal Panel cited the following passage from the leading United States case of RR v Department of Army (1980) 482 F Supp 770 at 774:
'Remedial legislation should be liberally construed in order to effect its obvious purpose. ... It would defy common sense to suggest that only factually erroneous assertions should be deleted or revised, while opinions based solely on these assertions must remain unaltered in the individual's official file. An agency may not refuse a request to revise or expunge prior professional judgments once all the facts underlying such judgments have been thoroughly discredited. This position is reinforced in the Act's legislative history, where there are clear indications that insidious rumors and unreliable subjective opinions as well as simple factual misrepresentations fall within the ambit of the Act's strictures. ...That the Privacy Act contemplates ... expungement and not merely redress by supplement is fairly implicit in the decisions of this and other circuits. ... The proposition that judgmental or evaluative matters are not beyond the purview of the Privacy Act has been tacitly accepted in some instances ... Plaintiff is therefore authorised to seek amendment of both inaccurate biographic data and unsupported diagnostic conclusions relating to his 1951 hospitalization.'
24 The Appeal Panel at [42] of Director General, Department of Community Services -v- S [2000] NSWADTAP 27 made the following comment in relation to this passage:
We note that the reference to amendment only being permitted where all the facts have been 'thoroughly discredited' relates to the circumstance where a professional judgment is in issue. The case here is not one of professional judgments (in the strict sense) being placed in issue. In any case we are inclined to the view that a threshold of 'thorough discreditation' may be too restrictive in some instances. When this sentence is read in the context of the court's other observations it is reasonably clear that this test is not seen as applicable to all kinds of judgmental or evaluative material. (Emphasis added.)
25 In relation to the agency’s final proposition, it must depend on the facts of each case as to whether and in what circumstance evidence from a medical practitioner will persuade a decision-maker of the case for amendment. In Re Gordon , the AAT merely made the comment at [17] that “Without the evidence of appropriately qualified medical witnesses, we consider that it is not open to us to find that information contained in medical reports is incomplete, incorrect, out of date or misleading.” This comment was made in relation to the particular facts of that case and was not meant to lay down as a matter of principle that expert medical evidence is a pre-condition to a finding that a medical report is incorrect etc. Similarly, the comment in Re Resch at [38] was confined to the facts of that particular case. A decision-maker must assess the evidence in each case and determine whether he or she can be satisfied that the report is incomplete, incorrect, out of date or misleading in a material respect. It follows that I do not accept the agency’s submission that it is necessary in all cases to have evidence from appropriately qualified medical experts before it can be found that the relevant opinion is incomplete, incorrect, out of date or misleading.

26 The agency’s next submission was that the information in the record and the record itself should be distinguished for the purposes of interpreting s 44 of the FOI Act. Their submission was that except in extraordinary circumstances, it will be extremely difficult to demonstrate that a medical report recording the opinion of a medical practitioner, is “incomplete, incorrect, out of date or misleading” in material respects. The reports are merely recording the genuine opinion held by the author. The agency relied on Re Cox and Department of Defence (1990) 20 ALD 499, 502 at [40] in support of this proposition. In that case, the AAT acknowledged the force of the submission that an opinion is just that, and that the records were complete and correct records of the opinions held by the person who made them. However, the AAT went on to say:

That does not, however, detract from the fact that such opinions may be overtaken by events and thus be out of date; that the facts upon which those opinions were based may have been incorrect or incomplete; and that as a result the expression of the opinions, however bona fide they may have been when they were written may now have to be seen to be so flawed as to be misleading for the purpose of present resort to them.
27 I agree with the AAT’s analysis and in particular with the proposition that even when an opinion is recorded correctly, it can still be “incorrect” in the sense that the facts upon which those opinions were based may have been incorrect or incomplete.

Reasons and decision
28 It is not necessary in these reasons to go through each piece of evidence adduced by Mr C and determine, issue by issue, whether that evidence discharges his evidential burden. I have read that evidence and Mr Beech-Jones’ response to it. In summary, the evidence satisfies me that:

1. There are facts alleged in the report which Mr C alleges, based on his own direct evidence, are incorrect. These include:
· things that Dr Lucire reported that Mr C said in the interview,
· things that Dr Lucire said she told Mr C in the interview, and
· things that Dr Lucire said that Mr C had been told previously.
If these inaccuracies are proved they may, either individually or collectively, be material.

2. There are facts alleged in the report which Mr C alleges, based on his own direct evidence, are incomplete. These include an allegation that Mr C’s claims in relation to his workers compensation matter demonstrated “frank paranoia” or malice.

If Mr C proves that the report is incomplete in these respects that incompleteness may, either individually or collectively, be material.

3. There are opinions, in the report about Mr C’s mental health which are not supported by other qualified medical practitioners. Mr C also alleges that the opinions are not supported by the Diagnostic Criteria for Paranoid Personality Disorder and Narcissistic Personality Disorder.

4. There are opinions in the report about Mr C’s mental health which Mr C alleges were not based on his medical history.

5. Mr C alleges that Dr Lucire was tainted by bias or ill will, incompetence or lack of balance, or necessary experience. These allegations include:

· that Dr Lucire was biased when she formed opinions including that Mr C “exaggerates his achievements”, and perceives that “virtually everyone” is spiteful;
· that Dr Lucire’s report is full of subjective, gratuitous and pejorative comments and her findings are unsubstantiated; and
· the report was prepared following legal advice from Mr Tim Doubleday who made the comment that “a misconception of actual events, due to the irrational thinking of the worker . . .is not compensable” and “subsequent rationalisation of earlier innocuous events, which rationalisation leads to psychiatric illness, is also not compensable.”
6. Some of the information in the report is clearly not incorrect in a material respect (for example, the references to s 11, rather than s 11A of the Workers’ Compensation Act).
29 I am satisfied on the basis of all the evidence and submissions that Mr C has made out a prima facie case that some passages in the report are incomplete, incorrect, out of date or misleading in a material respect. This matter should be listed for further directions so that the substantive matter can be determined.