Challita v NSW Department of Education and Training

[2009] NSWADT 244

CITATION:	Challita v NSW Department of Education and Training [2009] NSWADT 244
DIVISION:	General Division
PARTIES:	APPLICANTS Jolanda and Peter Challita RESPONDENT NSW Department of Education and Training
FILE NUMBER:	073362
HEARING DATES:	5 March 2009
DATE OF DECISION:	23 September 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information Act - amendment to documents -
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Bennett v University of New England (unreported, NSW District Court, Dunford J, 7 August 1991) Chand v NSW Police [2007] NSWADT 131 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296 Hayward-Brown v Wentworth Area Health Service [2000] NSWADT 46 Livermore v Tumbarumba Shire Council (No.2) [2008] NSWADT 172 Secretary, NSW Treasury v C [2004] NSWADTAP 6 Waite v Department of Local Government [2004] NSWADT
REPRESENTATION:	APPLICANT J Challita RESPONDENT A Johnson, solicitor
ORDERS:	1. The decision under review is affirmed 2. The matter is listed for further directions on Monday 26 October 2009 at 9:30am.

REASONS FOR DECISION

Background

1 Over many years, the Applicants have corresponded with and complained to the Department of Education and Training ("the Department") about the way in which their children's applications for selective schools were processed and have alleged corruption and bias on the part of the Department. The background to the issues of concern to the Applicants can be found in previous decisions of this Tribunal.

2 By an application dated 11 July 2007 the Applicants applied to the Department seeking an amendment, under section 39 of the Freedom of Information Act 1989 ("the FOI Act”), to nine documents held by the Department.

3 The documents for which the amendment are sought as:

Document (1)

19 December 2003 - Letter from former Minster for Education, Mr Andrew Refshauge MP to Mr J G Brogden MP - RML 03/10994.

Document (2)

18 May 2005 - Letter from Peter Riordan, General Manager, Industrial Relations and Employment Services - RML OS/2015.

Document (3)

6 December 2005 - Email from Magda Pollak to Assistant Director, Audit Mr. Ballantine.

Document (4)

8 December 2005 - letter from Carmel Tebbutt MP, then Minister for Education to the Hon. Brad Hazard MP - RML 05/5061.

Document (5)

13 January 2006 - Submissions by Magda Pollak headed "Request by Mrs Challita for exemption from Selective High Schools test for [the applicants’ daughter] - EMD/06/0012.

Document (6)

13 March 2006 - Submissions to the Director General by Trevor Fletcher - DGS 06/360 headed Allegations of improper conduct by the Selective High School Directorate, headed Selection Committee meetings.

Document (7)

24 May 2006 - email from Magda Pollak to Chris Ballantine, Audit Directorate, headed Selection Committee meetings.

Document (8)

June 2006 - Document headed - Additional Information in relation to application and process re [the applicants’ daughter]

Document (9)

27 July 2006 - Email from Magda Pollak to Chris Ballantine, Audit Directorate.

Relevant legislation

4 Section 39 of the FOI Act provides:

39 Right to apply for amendment of agencies’ records

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.

5 Section 44 of the FOI Act sets out the circumstances in which an agency may refuse to amend its records in accordance with the requested amendments of the FOI applicant. Section 44 states:

44. 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.

6 Where an agency refuses to amend its record as requested, the FOI applicant may, pursuant to section 46 of the FOI Act, by notice in writing lodged with the agency, ‘require’ the agency to add a notation to the record in question. That notation is required to specify the respects in which the FOI applicant asserts the record is incomplete, incorrect, out of date or misleading and the information the applicant asserts is necessary to complete the record or bring it up to date. If such a request is made the agency is obliged to make the necessary notation and to ensure that it is given to any person to whom the record may be disclosed.

7 The onus is on the Department to satisfy the Tribunal that its decision to refuse to make the amendments sought was justified: section 61 of the FOI Act. The Applicants bear an initial or preliminary burden to provide evidence in support of an application for amendment: Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [32], Livermore v Tumbarumba Shire Council (No.2) [2008] NSWADT 172 at [49].

Issues

8 The Department has agreed to notations in relation to documents 5 and 8. The Applicants have accepted the proposed notation in regard to document 5, however, the proposed wording of the notation to document 8 is in dispute.

9 The Department concedes that the Applicants are entitled to bring an application on behalf of their children, and that the information in the remaining documents is available for use by the Department in connection with its administrative functions. However, it contends that the documents do not contain information concerning the personal affairs of the Applicants or their children. Ms Johnson submits that the Tribunal therefore has no jurisdiction to order either the amendment of the documents or a notation to the documents unless that is the case. In the alternative, the Department argues that the information is not incomplete, incorrect, out of date or misleading and that order either the amendment of the documents or a notation to the documents.

Legal Principles

10 Each of the parties has filed written submissions. In her submissions Ms Johnson has helpfully and correctly summarised the relevant legal principles.

11 An amendment application must relate to the personal affairs of the person seeking the amendment. For this reason, a person cannot seek to have amendments made, which relate to others: Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296 at [29].

12 Information in respect of which an amendment may be sought under section 39 includes factual errors: Waite v Department of Local Government [2004] NSWADT 11 at [34].

13 An applicant has the initial onus of providing sufficient material to show that information he/she seeks to have amended is incorrect or misleading etc. Having discharged that onus, the onus is on the agency pursuant to section 61 of the FOI Act to demonstrate that its determination, in refusing to amend records, was justified: see Crewdson at [32] and Hayward-Brown v Wentworth Area Health Service [2000] NSWADT 46 at [38].

14 Crewdson concerned an application to amend a HealthQuest report which was headed "Interim Advice" and which included the words "Mr Crewdson is currently unfit for work and in need of further psychiatric assessment." Mr Crewdson argued that the statement was incorrect, out of date or misleading because the procedures which led to his psychiatric examination and the examination itself were affected by procedural unfairness, that the doctor was biased, the opinion formed was incorrect and the report itself was beyond power. Handley JA gave judgment, with which Ipp JA and Davies AJA agreed.

15 Handley JA dealt with the alleged unfairness, including the alleged bias, in the following way (at [19]):

"The alleged unfairness in the procedures which led to the appellant's psychiatric examination and in the course of that examination, including the alleged bias of Dr Roberts, do not raise issues directed to the accuracy of the statement. One cannot establish that a medical opinion is "incorrect... or misleading" by establishing that the procedures followed were legally flawed or the doctor was biased. The opinion may still be correct."

16 More generally, Handley JA held that an application for amendment of records under the FOI Act is not concerned with the merits or validity of the official action taken, at [24]:

"The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. ..."

17 The fact that some of the information recorded in a document may be strictly irrelevant to the decision at hand does not make that information incomplete, incorrect, out of date or misleading: Livermore at [54].

18 An accurately recorded opinion is not out of date or misleading. Handley JA in Crewdson rejected the contention that the statement was out of date, because it was written on a particular date at [21]:

"The statement was not out-of-date either. It was a correct statement of the doctor's opinion on the date it was made ... It did not purport to be a final report, and it did not state that the appellant's condition was incurable. The fact that information in Departmental records relates to a specific date does not mean that it becomes out-of-date."

19 Handley JA noted that the evidence before the Tribunal was that the doctor had formed the opinion in the statement and that her opinion was accurately recorded (at [20] and [33]). As a statement of opinion, involving an application of medical knowledge and skill, it was also an implied representation that the doctor knew the facts, which justified her/his opinion (at [31]). The fact that other doctors may hold different views did not make the recorded opinion wrong or inaccurate (at [34]). On this point, Handley JA said "The Act is not a vehicle for the determination of disputed questions of expert or other opinion when the recorded opinion was actually held and accurately entered in the official records." (at [34]).

20 The Appeal Panel in Secretary, NSW Treasury v C [2004] NSWADTAP 6 was called on to consider the question left open by the Court of Appeal in Crewdson, namely whether an accurate statement of an opinion, expert or otherwise, that was genuinely held could be incorrect or misleading if it was based solely or substantially on information which was shown to be incorrect.

21 The Appeal Panel formulated the test as follows (at [103]):

"An expert opinion may be held 'incorrect' where either:

(a) all of the factual material underlying the opinion is incorrect; or

(b) (i) some of this factual material is incorrect; and

(ii) the court or tribunal determines, having due regard to expert evidence, that in consequence this factual material is 'substantially' incorrect; and

(iii) the court or tribunal determines, having due regard to expert evidence, that the opinion, if based only on the factual material that has not been held incorrect, could not be maintained by any competent expert."

22 In Chand v NSW Police [2007] NSWADT 131, Handley DP dealt with the recording on the opinions of other (non-expert) officers of an agency. The Deputy President said at [23]:

"Thus, I conclude that police officers should not be treated as expert witnesses when expressing opinions on a person's mental health in the context of information in an agency's records concerning the person's personal affairs. However, that is not to say that their opinions - which will often essentially be their impressions - should not be recorded, provided those opinions are not treated as expert evidence and are based on their reasonable assessment of the situation at the time, or on other evidence, and are not determinative of the rights, interests and legitimate expectations of a person."

23 The Tribunal ordered that a warning on the file that Mr Chand was suffering from a mental illness could and should be deleted, as it involved no re-writing of history: [28], [29], [33]. On the other hand, where the narrative made it plain that police officers were recording their own impressions or expressing their own opinions that Mr Chand may be suffering from a mental illness or disorder, that comment was found not incorrect or misleading: [30], [31], [32], [37], [38], [41], [43]. An opinion that Mr Chand was mentally unstable did not amount to an expression of an expert opinion and did not warrant amendment: [35].

24 In Ferns the Tribunal extended this approach to the opinions of a public officer expressed in the course of his or her duties: at [32]. Simply because an applicant disagreed with the opinion expressed does not make it wrong. Even when a subsequent investigation cleared the applicant of the allegations made, it was inappropriate to amend the record, as to do so would involve a "re-writing of history": at [32].

25 In Ferns, the Tribunal declined to order an amendment, even by way of notation, to an email that recorded an officer's recollection of events some 8 months previously. The Tribunal noted at [23]:

"[T]he email is a correct record of Commander Rogers' responses. The fact that one can point to contrary earlier statements by Commander Rogers does not make his responses, made at the time the email was created and as recorded in the email, incorrect or misleading in the relevant sense. They are statements of his recollections and even if made in bad faith, as asserted by Mr Ferns, this does not necessarily make them incorrect. As pointed out by the Court of Appeal in Crewdson (supra) the amendment provisions of the FOI Act are not a vehicle for examining the merits of administrative conduct, including conduct that is undertaken in bad faith. Such matters need to be dealt with in another forum.

26 Words in a document to be amended should be given their ordinary meaning. In Livermore the Tribunal had to consider whether the use of the word 'resignation' was an accurate way of describing a situation where the applicant had relinquished the opportunity to accept a new contract, albeit one on different terms. The Tribunal said at [51]:

"The use of the word 'resignation' in this context is, in my opinion, sufficiently close to its ordinary meaning as not to be incorrect or misleading in a material respect."

27 Something may be misleading if it leaves the wrong impression: Bennett v University of New England (unreported, NSW District Court, Dunford J, 7 August 1991) In Ferns at [25] to [26], the Tribunal found that an email created the incorrect impression that an assault charge was dismissed on a procedural footing, rather than as the result of a defended hearing. The Tribunal ordered a short notation clarifying that the matter had been defended over four days.

28 Handley JA in Crewdson indicated that if an expert whose opinion had been accurately recorded recognised later that it was incorrect and withdrew the opinion, the appropriate course was to add annotation to the opinion rather than to remove the original opinion, at [35]. To do otherwise would involve a re-writing of history.

29 Having said that, in Chand, the Tribunal ordered the deletion of certain records, which purported to be statements of expert opinion about Mr Chand's alleged mental illness, but which were made by police officers. The Tribunal only ordered the deletion of these records where it was explicitly satisfied that to do so would not amount to a rewriting of history or detract from the recorded history of police action: at [28], [29], [39].

Consideration

30 The Applicants contend that information presented in the documents under consideration is not based on fact, is biased, misleading, incorrect and wrong. The Department contends that the Tribunal has no jurisdiction to order either the amendment of the documents or a notation to the documents or alternatively, if the Tribunal does have the jurisdiction, it should not make the orders sought.

31 For the purposes of determining these issues I have examined the copy of each of the documents that was filed with the Tribunal.

Document (1)

32 The Applicants say that information presented in Document 1 is inaccurate. They say that it includes false statements regarding the manner in which the Department had dealt with complaints from the Applicants. The alleged inaccuracies concerned the statements that the Ombudsman has investigated the matter; that there had been a Tribunal Hearing; that the Applicants had not taken up an opportunity to have an explanation of their children's scores; and that extensive enquiries had been completed by the Department and an external agency.

33 I note the Department’s submission that the document does not contain information concerning the Applicants’ personal affairs and that that the Tribunal therefore has no jurisdiction to order either the amendment of the documents or a notation to the documents. I agree with that submission.

34 A person may apply for amendment of a document only if, and to the extent that, it contains ‘personal affairs’ information about that person. While I accept that document 1 contains ‘personal affairs’ information about the Applicants’ children, in my view the matters of concern to the Applicants do not fall into that category. They concern either the Department’s processes or processes within the Ombudsman’s office.

35 It follows that the Tribunal has no jurisdiction to make the order sought in relation to Document 1.

Document (2)

36 The Applicants say that information presented in Document 2 is inaccurate. They say that it includes the false statement:

"The issues raised in Mrs Challita's correspondence have been the subject of numerous Ministerial responses, as well as two Freedom of Information requests, an Ombudsman investigation and an Administrative Tribunal Hearing".

37 The Applicants say that the information provided in the letter is misleading, incorrect and untrue as it presents as though the matter has been investigated by the Ombudsman and that a hearing has taken place and that issues were resolved. They say that the Ombudsman did not investigate the matter and the Department has still not honoured the agreements made on the day of the Tribunal hearing. They point to an email from Magda Pollak dated 30 August 2006, that states: "The Ombudsman has decided not to investigate us in response to Mrs Challita's complaints”.

38 In my view, for the same reason as provided in regard to Document 1, the matters of concern to the Applicants do not fall into the category of information that gives rise to a right to seek amendment. They do not contain ‘personal affairs’ information about the Applicants or their children. They concern either the Department’s processes or processes within the Ombudsman’s office.

39 It follows that the Tribunal has no jurisdiction to make the order sought in relation to Document 2.

Document (3)

40 The Applicants say that the following statement in the email dated 6 December 2005 from Ms Pollak to Mr. Ballantine is misleading, incomplete and/or is not true:

"She has been able to view her children's secure tests under supervision and has been privy to information rarely afforded other members of the public including a copy of her children's answers in all tests directly from the Australian Council for Educational Research (ACER), the developers and markers of the two tests used for Selective High School and opportunity class entry but she will not accept that there is no conspiracy to keep her children out of the various selective high schools or opportunity classes.

41 The Applicants say that they have not been given the opportunity to view copies of the test results directly from ACER but in fact the results were printed from the DETS computer.

42 In my view, for the same reason as provided in regard to Document 1, the matters of concern to the Applicants do not fall into the category of information that gives rise to a right to seek amendment. They do not contain ‘personal affairs’ information about the Applicants or their children. They concern either the Department’s processes, processes within ACER’s office or the relationship between the Department and ACER.

43 It follows that the Tribunal has no jurisdiction to make the order sought in relation to Document 3.

Document (4)

44 Document 4 is related to Document 1 and the Applicants allege that same inaccuracies.

45 In my view, for the same reason as provided in regard to Document 1, the matters of concern to the Applicants do not fall into the category of information that gives rise to a right to seek amendment. They do not contain ‘personal affairs’ information about the Applicants or their children. They concern either the Department’s processes or processes within the Ombudsman’s office.

46 It follows that the Tribunal has no jurisdiction to make the order sought in relation to Document 4.

Document (5)

47 Document 5 is a 3-page submission related to the Applicants’ request for exemption from Selective High Schools test their daughter. I note that agreement has been reached between the parties in regard to a proposed notation on Document 5 and that the agreement resolves one issue in regard to that document. With respect to the remaining issues in regard to Document 5, the Applicants refer to the following passage from the Document:

Throughout her communications with the DET she continues to allege that officers of the DET deliberately falsify documents in order to prevent her children from achieving the desired outcomes. The targets of her accusations include Magda Pollak, A/Manager; Selective High School and Opportunity Class Placement Unit, Dr. Anthony Bendall, Manager, Freedom of Information and DET officers involved in [the applicants’ daughter’s] ELLA test. To date, all investigations have cleared these officers of misconduct charges.
Mrs Challita has been declared a vexatious correspondent for the purpose of Ministerial correspondence.

48 The Applicants contend that the allegations that they made against the Department and in particular Ms Pollak, are of a serious nature. They say that that the allegations into misconduct have not been formally investigated and policy and procedure have been breached and therefore the information presented in Document 5 is incorrect, misleading, not based on fact and is not true. They say that the Ombudsman refused to investigate the allegations and therefore no independent investigation or determination has ever been made about the allegations.

49 The Applicants also contend that the statement in Document 5 that Mrs Challita has been declared a vexatious correspondent is not based on fact, that it is incorrect and is untrue.

50 The Applicants referred to a number of documents in support of these assertions.

51 In my view, for the same reason as provided in regard to Document 1, the matters of concern to the applicants do not fall into the category of information that gives rise to a right to seek amendment. They do not contain ‘personal affairs’ information about the Applicants or their children. They concern either the Department’s processes or processes within the Ombudsman’s office.

52 It follows that the Tribunal has no jurisdiction to make the order sought in relation to Document 2.

Document (6)

53 Document 6 is a 4-page submission related to the applicants’ allegations of improper conduct by the Department’s Selective High School Directorate. The applicants refer to the following passage from Document 6:

"Although both of her elder children have been successful for opportunity class entry and her eldest daughter has been successful for selective high school entry, she has alleged that the Unit has conspired with the Australian Council for Educational Research to falsify the student's marks and to keep them from entering the selective high schools she nominated as her first choice.
…
There is no conspiracy by members of the Selective Schools and Opportunity Class Placement Unit against Mrs Challita or her children, nor has Mrs Challita ever ascribed to members of the Unit any motivation for such vindictive and unprofessional conduct that she alleges.”

54 The applicants contend that information in Document 6 is misleading and untrue as firstly it implies that their children were successful in the first instance when in all cases the children were not successful for first round offers.

55 I agree that the reference to the successful entry of the Applicants’ children to opportunity classes or selective high school contains ‘personal affairs’ information about the Applicants’ children. The matters of concern to the Applicants therefore fall into the category of information that gives rise to a right to seek amendment.

56 The Applicants’ complaint is essentially that the information in Document 6 does not particularise the occasions on which their children were unsuccessful. The Department contends that Document 6 is a submission on a broad range of issues and does not purport to be a complete history of the applications and appeals made by the Applicants' children. It says that Document 6 does not contain the level of detail to which the Applicants have referred but it does not follow that the information is either incorrect or misleading.

57 I agree with the Department’s submission. In my view, Document 6 merely provides an overview of the background to the Applicants’ allegations of improper conduct. If it had purported to be a complete history of the applications and appeals by the Applicants' children it would be incomplete. However, that was not the issue to which the document was directed. I do not agree that that the information is either incorrect or misleading.

58 It follows that this aspect of the application must fail.

59 The remaining issues with respect to Document 6 that are of concern to the Applicants are that the passage quoted above implies that the Applicants have alleged that the Department and ACER conspired to falsify test results at the outset. The Applicants say that this is not true and that their allegations against ACER are that they have assisted in the cover up.

60 In my view, this matter does not contain ‘personal affairs’ information about the Applicants or their children. While I accept that in some circumstances a reference to an individual’s opinions may constitute information concerning the person’s personal affairs, in the present context the information concerns either the Department’s processes, processes within ACER’s office or the relationship between the Department and ACER.

61 It follows that the Tribunal has no jurisdiction to make the order sought in relation to that aspect of Document 6.

62 The Applicants also contend that there is a conspiracy by members of the Selective Schools and Opportunity Class Placement Unit against their family and that it is incorrect to assert otherwise. They also assert that they have advised the Department on numerous occasions that they believed that the conspiracy is a payback for publicly and persistently complaining about the neglect of the education of their intellectually gifted children.

63 The Department denies the allegations and submits there is no evidence that could reasonably be seen to constitute a foundation for them. It further submits that the question of whether there is a conspiracy on the part of the Department would involve consideration of whether certain allegations of the Applicants are true, and if so whether they are capable of constituting a conspiracy. The Department relies on the Court of Appeal decision in Crewdson at [24] as support for the submission that such an investigation is outside the scope of the Tribunal's jurisdiction. Handley JA, with whom Ipp AJA and Davies AJA agreed, stated:

24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. …

64 I agree with the Department’s submission. In my view, the Tribunal is unable to undertake the consideration that would be necessary to determine whether or not the Applicants’ allegations of a conspiracy are correct. It follows that the Tribunal has no jurisdiction to make the order sought in relation to that aspect of Document 6.

Document (7)

65 Document 7 is an email dated 24 May 2006 from Ms Pollak to Mr Ballantine which contains the following passage:

Mrs Challita has applied on behalf of her daughter ... This year I have removed myself from all involvement in the importing of scores from ACER, the processing of these scores and any selection committee relevant to Mrs. Challita's application.

66 The Applicants complain that the statement is incorrect. In support of this assertion they rely on a letter dated 5 June 2006 from John Lindsay at ACER addressed to Ms Pollak. The letter states that it enclosed documents relating to the Selective High School Tests 2006 for the Applicants’ daughter. They say that it is clear that Ms Pollak did not remove herself from all involvement.

67 The Applicants say that their daughter's application was not processed in the same manner as the rest of the students applying for Selective Schools placement but instead her test papers were separated and forwarded to Ms Pollak despite a formal request that Ms Pollak have nothing to do with their daughter's matter.

68 The Applicants also rely on email correspondence dated 2 August 2006 between Ms Pollak and Mr Michael Busby, and Mr Busby’s authorisation of Ms Pollak to draft the Appeal Analysis. They also refer to a submission with regard to their daughter's Selective School application as well as a draft outcome letter to the Applicants advising that their daughter was unsuccessful. They submit that these documents clearly show that Ms Pollak was fully involved in their daughter's Selective School application.

69 The Department relies on a statement by Ms Elissa Stathis, the manager of the Department’s Freedom of Information Unit. Ms Stathis explained that the Department’s Selective High Schools and Opportunity Class Placement Unit only had a staff of 4 people at the time and Ms Pollak was the Manager of that Unit. It submits that Ms Pollak did not say that she had no involvement whatsoever in processing the Applicants’ daughter's application. It submits that the material to which the Applicants have referred does not demonstrate an involvement in importing scores from ACER, processing the score or any selection committee relevant to the Applicants’ daughter.

70 The Department submits that the Applicants have failed to demonstrate a prima facie case for amendment. In the alternative, it says that there is nothing in document 7, which is incorrect or misleading, and no amendment is warranted.

71 I do not agree with the Department’s submission insofar as it argues that that the material on which the Applicants rely does not demonstrate any selection committee relevant to the applicants’ daughter. However, it is clear that the correspondence dated 2 August 2006 is well after Document 7 was created. I agree that any action taken by Ms Pollak after that date does not impact on whether Ms Pollak's description of her actions up until 24 May 2006 was incorrect or misleading. I am not satisfied that the information in Document 7 is incorrect or misleading, and therefore it is my view that no amendment is warranted.

72 In any event, it is my view that, for the same reason as provided in regard to Document 1, the matters of concern to the Applicants do not fall into the category of information that gives rise to a right to seek amendment. They do not contain ‘personal affairs’ information about the Applicants or their children. They concern the Department’s internal processes.

73 It follows that the Tribunal has no jurisdiction to make the order sought in relation to Document 7.

Document (8)

74 Document 8 is a single page document that provided additional information in relation to the Applicants’ daughter’s application. The Applicants contend that the following passage in Document 8 is misleading and incorrect:

"The Australian Council for Educational Research provided scores for all students on the basis of each student's 10 number and question booklet number but without reference to the students names".

75 In support of that assertion they referred to a letter dated 21 September 2006 from ACER. That letter states that ACER didn't score the tests and the Department scored the tests for the Applicants’ daughter.

76 The Department accepts that the wording of Document 8 could be confusing and agreed to add a notation to the document. The Department agreed to the following:

"The Department of Education and Training notes that ACER electronically sent the Department a results file which contained the answers given by each student. It also sent the Department a marking key. The Department marked the students answers for all components of the test, except for the writing task, against that marking key."

77 The Applicants do not agree to the wording of that notation to Document 8.

78 In my view, for the same reason as provided in regard to Document 1, the matters of concern to the Applicants do not fall into the category of information that gives rise to a right to seek amendment. They do not contain ‘personal affairs’ information about the Applicants or their children. They concern either the Department’s processes, processes within ACER’s office or the relationship between the Department and ACER.

79 It follows that the Tribunal has no jurisdiction to make the order sought in relation to Document 8.

80 However, if I am wrong in regard to this issue, it is my view that the proposed wording of the notation to Document 8 is reasonable.

Document (9)

81 Document 9 is an email dated 27 July 2006 from Ms Pollak to Mr Ballantine. The Applicants contend that the following passage in Document 9 is not correct, is misleading and is not based on facts:

"I have voluntarily excluded myself from any part of the processing of Mrs Challita's application so far."

82 In support of this assertion they rely on various documents including those referred to in relation to Document 7. They submit that the documents show that Ms Pollack processed the application and was fully involved in all aspects of the decision-making, applications and appeals.

83 For the same reasons given in relation to Document 7, it is my view that the Tribunal has no jurisdiction to make the order sought in relation to Document 9.

Costs

84 In addition to the requested amendments, the Applicants seek an order for costs. The Department has resisted that application but has asked for an opportunity to file additional submissions on the question of costs before an order is made.

85 In the circumstances the matter should be listed for further directions to allow a timetable to be set in regard to that issue.

Decision

1. The decision under review is affirmed.

2. The matter is listed for further directions on Monday 26 October 2009 at 9:30am.