Chand v NSW Police

[2007] NSWADT 131

CITATION:	Chand v Commissioner of Police, NSW Police [2007] NSWADT 131
DIVISION:	General Division
PARTIES:	APPLICANT Hem Chand RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063403
HEARING DATES:	8 June 2007
SUBMISSIONS CLOSED:	8 June 2007
DATE OF DECISION:	20 June 2007
BEFORE:	Handley R - Acting Deputy President
CATCHWORDS:	Freedom of Information Act - amendment of documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Bennett v University of New England (unreported, NSW District Court, 7 August 1991) Botany Council v The Ombudsman (1995) 37 NSWLR 357C v NSW Treasury (No 3) [2004] NSWADTAP 6 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Morgan v Department of Education & Training and Minister for Education & Training [1999] NSWADT 91 Norville v State Superannuation Trustees Corporation [2005] NSWADT 137
REPRESENTATION:	APPLICANT H Prakash, solicitor RESPONDENT C Weiss, agent
ORDERS:	That part of the Respondent’s decision to refuse to amend the Computerised Operational Policing System (COPS) records concerning the Applicant in relation to the first, second, third, sixth and tenth entries in those records is set aside and in substitution therefor the amendments set out in par 45 of this Statement of Reasons will be allowed. The Respondent’s decision is otherwise affirmed.

REASONS FOR DECISION

1 This matter involves an application by Hem Chand for the review of a decision made by a delegate of the Commissioner of the NSW Police to refuse to amend NSW Police records containing information concerning Mr Chand’s personal affairs on the ground that the records concerning Mr Chand were not incomplete, incorrect, out of date or misleading.

Background

2 Mr Chand was born on 22 April 1958 and is aged 49. He migrated to Australia with his family from Fiji in about 1999. On 22 July 2000, Mr Chand complained to Police at Parramatta that he was being followed repeatedly. The Police record of this complaint on the Computerised Operational Policing System (‘COPS’) states that Mr Chand had made eight similar complaints:

“There are no findings to these complaints, they are merely people that live in the unit complex or are out shopping. The victim was asked if he had ever been to Cumberland Hospital and he asked what people go there for. Police informed him that it was for assessment. He stated that he did not need to be assess [sic] and that he was not crazy. No further action can be taken in relation to this matter as there are no further details.”
3 Mr Chand subsequently telephoned the Police at Parramatta to express concern about his treatment and was informed that the COPS records indicated that he was suffering from a mental illness. In about September 2000, Mr Chand provided the Police with copies of two medical reports in support of his contention that he was not suffering from a mental illness: (1) a report from Mr Chand’s general practitioner, Dr P Paramsothy, dated 10 August 2000, stating that Mr Chand, whom he reviewed regularly, had been a patient of his for over two years and, “At no stage did he suffer from Mental (‘Psychiatric’) problem or disease. He is mentally sound and well”; and (2) a report from Dr V Mano Mohan, Consultant Cardiologist, dated 15 September 2000, stating that Dr Mohan had always found Mr Chand “to be calm, collected and rational in my dealings with him”.

4 Between 2001 and 2004, there then followed correspondence between Mr Chand and the Police, and between his solicitors and the Police and the Minister for Police over the relevant entries in the COPS records, and Mr Chand’s request that the entries indicating that he suffers from a mental illness be deleted. As a result of the early correspondence, in about May 2001, Mr Chand was informed that an Intelligence Report (I 11272408) created by Superintendent JT Carroll, the Parramatta Local Area Commander, had been placed on the Police Computer System in the following terms:

“I have recently conducted an Internal Affairs Investigation involving Mr CHAND. There is an existing Intelligence Report indicating that Mr CHAND may have mental health problems. My inquiries reveal that Mr CHAND does not appear to have mental health problems and police are to treat any future requests from him for assistance on their merits and are to disregard the previous Intelligence Report.”
By letter dated 11 June 2004, the Minister for Police advised Mr Chand’s then solicitors that the relevant entries in the COPS records could not be deleted.
5 In about September 2005, Mr Chand applied for access to the relevant entries concerning him in the COPS records under the Freedom of Information Act 1989 (‘the FOI Act’). He was provided with a print out of his COPS record dated 4 October 2005. This revealed a “warning” at the beginning of the record that Mr Chand “MAY HAVE PSYCHIATRIC ILLNESS”. Thereafter, there are 14 entries, in relation to 11 reported incidents, referring to Mr Chand suffering or possibly suffering from a mental illness. For example, in relation to an incident on 12 February 2005, the following comment is recorded: “It appears that CHAND suffers from a form of mental illness.” In relation to an incident on 6 January 2004, the following is recorded:
“Police believe that the male [Mr Chand] may be suffering from a form of mental illness and after checks were completed on the victim [Mr Chand], it revealed that he in fact did suffer from a form of mental illness and continually makes reports to police about persons and/or vehicles following him.”
6 On 30 August 2006, Mr Chand’s solicitors made an application on his behalf under s 39 of the FOI Act seeking an amendment of the COPS records relating to Mr Chand. Section 39 of the FOI Act states:
39. 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.

7 Section 43(1) provides that an ‘agency’, defined in s 6(1) so as to include the NSW Police, shall determine an application by amending its records in accordance with the application or by refusing to amend its records. 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.

8 On 12 September 2006, the Co-ordinator of FOI for the NSW Police determined to refuse Mr Chand’s claim for amendment on the ground that the COPS records were not incomplete, incorrect, out of date or misleading. By letter dated 22 September 2006, Mr Chand’s solicitors sought an internal review of this decision. On 5 October 2006, the Deputy Director, Compliance Law Division, Legal Services, of the NSW Police, a delegate of the Commissioner, decided to affirm the decision. She stated:
“It is noted that that [sic] Applicant does not dispute the factual comments concerning his interaction with the police officers but has focused on the opinions in which [sic] they formed about the Applicant. The record reflects that in the opinion of the police officers investigating the matters, the Applicant demonstrated unusual behaviour which, again, in their opinion , indicated the presence of mental illness. I note that police officers, in the course of their duties, come into contact with a wide variety of individuals, many of whom are suffering from mental illnesses.

I have perused the reports tendered by the Applicant, and I note that the latter were produced by general practitioners, rather than by a psychiatrist or other mental health expert. Further the reports are chiefly short notes in respect of the general health of the Applicant, and are not formal mental health assessments. In addition to these considerations, I agree with the finding of Mr Stuart [the original decision-maker] that the majority of the reports were, in fact, produced prior to the incidents recorded in the documents under review. Further, the documents are in essences [sic] a disputed opinion of the Applicant’s mental health. It is clear that the documents tendered by the Applicant where [sic] not based on opinions based on the factual matters observed by the police officers as recorded in the COPS Events listed above. Therefore, on this basis, I am unable to agree with the Applicant’s claim that the records under review are incomplete, incorrect or misleading in a material aspect.

... the relevant information in the documents under review merely record the impressions of the attending officers. As the Applicant is aware, an Intelligence Report was placed on the system (namely, Intelligence Report I 11272408) stating that Mr Chand does not appear to have any mental health problems, which in my view removes the possibility of any misapprehension on the part of members of this agency questioning respect [sic] of his mental health. I am of the opinion that it is not appropriate, and this agency is not obliged, under the Act to “change the course of history” as it were, by altering the documents under review in the manner requested by the Applicant. To amend the records as requested by the Applicant would falsify the records and attempt to rewrite history ... These records are, in fact, an accurate portrayal of contact police officers had with the Applicant, and their impressions in respect of him.”

9 The delegate relied on s 44(a) in refusing Mr Chand’s request to amend the agency’s records.

Applicant’s Submissions

10 Mr Prakash, for Mr Chand, noted that the relevant entries in the COPS records are statements of opinion. He submitted that the use of the words ‘mental illness’ in such records requires expert evidence to support the opinion expressed. He pointed to the definition of ‘mental illness’ which, like ‘psychiatric illness’, means a “condition which seriously impairs, either temporarily or permanently, the mental functioning of a person” (Butterworths Australian Legal Dictionary, pp 741 and 949).

11 Mr Prakash submitted that police officers do not have the specialised knowledge to express an ‘opinion’ about whether a person has a mental illness. He contended that Mr Chand does not have mental health problems, pointing to the two reports submitted by Mr Chand to the police from Dr Paramsothy and Dr Mohan. He noted the continuing references to Mr Chand suffering from such a problem are contradicted by the Intelligence Report I 11272408, inserted by the Police after the internal affairs investigation involving Mr Chand, and referred to, for example, in the Minister of Police’s letter to Mr Chand’s previous solicitors, dated 26 April 2004.

12 Mr Prakash reviewed the relevant COPS entries concerning Mr Chand noting the warning at the commencement of the entries that states “may have psychiatric illness”, which Mr Prakash submitted is baseless and flawed. Of the other entries, there are a number of opinions expressed that Mr Chand may suffer from a mental illness, appears to suffer from a mental illness, or was suffering or did suffer from a mental illness. One entry (E 13778658) states “POI [Mr Chand] has mental illness, will attack police”. Mr Prakash said the recording of such opinions is irresponsible and dangerous.

13 Mr Prakash submitted that the Police do have power to amend their records, and the COPS records concerning Mr Chand should be amended to reflect the flawed opinions expressed by Police officers who have had dealings with Mr Chand. These dealings have been coloured by previously expressed opinions recorded on COPS which have resulted in Mr Chand being branded as suffering from a mental illness. Mr Chand is trying to correct the history of Police dealings with him rather that re-write that history.

14 Mr Prakash submitted that these records have compromised Mr Chand’s rights, interests and legitimate expectations. The rules of natural justice require that he be given the opportunity to make representations to rebut the prejudicial opinions expressed: he has a right to be heard and must be given a reasonable opportunity to present his case. The Police have provided no medical or expert evidence to substantiate their entries in the COPS records (submissions, par 44):

“Unless such record is removed on the basis that it is incorrect and misleading, the applicant will continue to suffer the consequences of being treated in a manner prejudicial to his rights, interest and legitimate expectations. The NSW Police have a duty to ensure that before such an entry is made on any person’s record; [sic] such entries are strictly complied with evidence which accords natural justice and procedural fairness.”
15 Mr Prakash sought to distinguish the decision of the NSW Court of Appeal in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 (‘ Crewdson ’) on the basis that the opinion at issue in that case was that of a medically qualified person. He submitted that police officers do not have the expertise to express an opinion on a person’s mental health without supporting medical evidence. Mr Prakash noted that Mr Chand having satisfied the initial burden to provide evidence – the medical reports - in support of his application for an amendment of the COPS records (see, for example, Morgan v Department of Education & Training and Minister for Education & Training [1999] NSWADT 91, at par 38), the burden was on the Respondent, pursuant to s 61 of the FOI Act, to establish that its refusal to amend the records was justified. Mr Chand does not want supplementation of the records. He wants the entries corrected and/or deleted.

Respondent’s Submissions

16 Ms Weiss, for the Commissioner, acknowledged that it is physically possible to remove the entries in dispute, but said the Police have declined to do so. With regard to procedural fairness, the current proceedings provide the opportunity for Mr Chand to put his case. She submitted that the relevant entries in the COPS records are of observations made and opinions held by police officers at the time of the incidents (Crewdson, par 34) and are not inaccurate, incomplete or misleading. Police officers must assess each individual situation and respond accordingly. They are experienced in dealing with persons with mental health problems. The entries in question include both the observations of police officers at the time of the incidents and also, in some instances, record statements made by Mr Chand. The Commissioner is of the view that the amendments sought by Mr Chand are an attempt to re-write history and submits that this is not the purpose or intention of s 39 of the FOI Act.

17 While the Commissioner bears the burden under s 61 of the FOI Act of establishing that the determination is justified, pursuant to the decision in Crewdson the Applicant bears an initial or preliminary burden to provide evidence in support of the application. The medical evidence provided by Mr Chand dates from 2000 and pre-dates many of the incidents. Moreover, the evidence is that of a general practitioner and a cardiologist rather than that of a psychiatrist or other mental health expert. The Commissioner submits that Mr Chand has failed to satisfy that initial or preliminary burden and, moreover, the Commissioner is justified in refusing to amend the COPS entries pursuant to s 44 of the FOI Act, because the entries are not incomplete, incorrect, out of date or misleading.

Discussion and Findings

18 With regard to s 39 of the FOI Act, there is no dispute that the relevant COPS records contain information concerning Mr Chand’s personal affairs and that the information is used by the NSW Police in connection with its administrative functions. The issue for the Tribunal to determine, therefore, is whether the relevant COPS records are incomplete, incorrect, out of date or misleading in a material respect. If they are, then the Tribunal may exercise the power of the agency pursuant to s 43(1) of the FOI Act, to amend the records in accordance with Mr Chand’s application. I note Kirby P’s comment in Botany Council v The Ombudsman (1995) 37 NSWLR 357 at 369, that “History cannot be rewritten”, in the context of the Ombudsman’s power to recommend an amendment of records. So too in the case of amendments permitted by s 39 of the FOI Act, as the NSW Court of Appeal recognised in Crewdson at par 35.

19 However, reference should be made to the stated object of the FOI Act in s 5(1)(b) to extend, as far as possible, the rights of the public:

(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
20 The means by which this object is to be achieved, stated in s 5(2)(a), is to confer a right of access to government documents and, in s 5(2)(c):
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
21 With regard to the meaning of ‘incorrect’ and ‘misleading’, in Bennett v University of New England (unreported, NSW District Court, 7 August 1991), Dunford J observed:
“Without going into detail, I am satisfied that ‘incorrect’ includes anything that is not in accordance with fact or is erroneous or inaccurate, and that ‘misleading’ includes giving a wrong impression.”
22 A difficult issue faced by the Court of Appeal in Crewdson and by the Tribunal in cases such as C v NSW Treasury (No 3) [2004] NSWADTAP 6 and Norville v State Superannuation Trustees Corporation [2005] NSWADT 137, is that of applications under s 39 for amendment of expressions of expert opinion. However, unlike the present matter, those cases all involved disputed medical opinions where the person expressing the opinion was medically qualified. In the present matter, the disputed statements of opinion – suggesting that Mr Chand suffers from a mental illness - are those of police officers investigating the various incidents. They are not medically qualified, although I accept that by the nature of their work in dealing with the public, police officers are likely to have been exposed to a significant number of persons suffering from mental illness. There is no evidence before me as to what, if any, training police officers have in recognising the symptoms of mental illness and in handling incidents that may involve persons suffering from mental illness.

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.

24 I note that in Crewdson, at par 34, the Court of Appeal 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.”
However, the Court was not addressing an issue involving an expression of opinion from a person who was not an expert in the field, whose opinion was based on his or her observation of the person during a very limited exposure to that person’s behaviour, and where the formation of the opinion was possibly coloured by prior comments in the COPS records concerning that person. I conclude that opinions expressed by a person who is not an expert in the field must be carefully scrutinised.
25 With regard to the burden of proof, notwithstanding that, pursuant to s 61 of the FOI Act, the Commissioner bears the burden of establishing that the determination is justified, the Applicant bears an initial or preliminary burden to provide evidence in support of the application: Crewdson, at par 32. In my view, in general terms Mr Chand has discharged that initial burden. While the two medical reports provided by him date from August/September 2000, and are not those of a psychiatrist or other mental health professional, they do postdate two incidents recorded on COPS (E 9255620 – 23 June 2000, and E 9301959 – 21 July 2000) in which observations were made concerning Mr Chand’s mental health. Moreover, Mr Chand’s general practitioner’s report, in particular, attests to Mr Chand not suffering from a mental illness. Mr Chand has also produced evidence of a Police Intelligence Report stating that he does not appear to suffer from mental health problems. Obviously, this contradicts the warning about Mr Chand suffering from a psychiatric illness that appears at the beginning of the relevant COPS entries.

26 Since, in my view, Mr Chand has discharged his initial burden, the Commissioner bears the burden of establishing that its determination to refuse to amend its records in accordance with Mr Chand’s application is justified.

27 Turning to relevant entries in the COPS records concerning Mr Chand, the first entry, under the heading “WARNINGS”, is as follows:

“(E 17867979) MAY HAVE PSYCHIATRIC ILLNESS”
Apart from the expressions of opinion by police officers attending incidents in which Mr Chand has been involved, there is no evidence to support this warning, nor of any consequent threat to the Police in undertaking their duties. Indeed, in 2002 there is evidence that Police created an Intelligence Report, quoted above at par 4, stating that Mr Chand does not appear to have mental problems. No explanation has been provided as to why, in the light of the Intelligence Report, the warning remains on COPS. I note Mr Prakash’s reference to the meaning of ‘psychiatric’ or ‘mental’ illness, being an illness involving a serious impairment of mental functioning.
28 In my view, in the absence or expert evidence that Mr Chand is suffering from a mental illness and in the light of Mr Chand’s two medical reports and the Intelligence Report stating that Mr Chand does not appear to have mental health problems, this warning is incorrect and misleading, being likely to create a false impression of Mr Chand and colour police dealings with him without good reason. It should therefore be deleted. I note that this entry does not record or relate to any specific incident and therefore does not involve any re-writing of history.

29 The second entry is in relation to an incident on 12 February 2005 (E 23105121). There are narratives from three officers in relation to the incident, which include a description of events. One narrative involves the statement: “It appears that CHAND suffers from a form of mental illness.” There is reference to prior incidents involving Mr Chand but no other explanation for this comment. It does not appear to be a statement of Police opinion derived from their assessment of the situation, it may well have been drawn from the warning above, and it adds nothing to the narrative. In my view, this statement is incorrect or misleading and should be deleted.

30 The third entry is in relation to an incident on 6 January 2004 (E 19338654). There is one narrative in relation to the incident, at the end of which there is the following statement:

“Police believe that the male [Mr Chand] may be suffering from a form of mental illness and after checks were completed on the victim [Mr Chand], it revealed that he in fact did suffer from a mental illness and continually makes reports to police about persons and/or vehicles following him.”
In my view, that part of the entry stating that Mr Chand “in fact did suffer from a mental illness and” is incorrect or misleading and should be deleted. The remainder is a statement of fact recording what the Police believed – their impression - at the time, based on their assessment of the situation, and should be retained, so that the statement reads: “Police believe that the male may be suffering from a form of mental illness and after checks were completed on the victim, it revealed that he continually makes reports to police about persons and/or vehicles following him.” I note that this does not profess to be a statement of expert opinion and merely records the possibility of Mr Chand suffering from mental illness. In my view, the deletion of such a Police opinion, based on their reasonable assessment of the situation at the time, would be a re-writing of history and, pursuant to Crewdson , this is not permitted.
31 The fourth, fifth and sixth entries are in relation to an incident on 25 August 2003 (E 20393781). There is one narrative. The fourth entry , in the second paragraph, includes the statement: “Police were of the opinion that the victim [Mr Chand] suffered from some sort of mental illness.” In my view, the incident described indicates that Mr Chand’s behaviour could reasonably be considered strange, and it would have been preferable if the Police officer’s comment had been expressed in such terms. Nevertheless, the statement of Police opinion – of their impression at the time - is a statement of fact, and part of the history of what occurred. It is not incorrect or misleading and should not be amended.

32 The fifth entry, in the third paragraph, commences with the statement: “The vic stated that he did not suffer from any mental illness and believed that someone is harassing him.” In my view, this is a statement of fact and even though it may have been stimulated by a question or comment from an officer present, it is part of the history of what occurred, it is not incorrect or misleading, and should not be amended.

33 The sixth entry, in the sixth paragraph, concludes with the statement: “It was evident that the complainant is suffering from some form of mental illness.” The justification for this comment is, presumably, Mr Chand’s behaviour, which, as stated above, could, in my view, reasonably be described as ‘strange’. In my view, the police officer was not qualified to provide such an opinion – which takes the form of a statement of fact - for which there is no other supporting evidence suggesting serious impairment of mental functioning. In the light of the retention of the fourth and fifth entries, this sixth entry should be deleted on the ground that it is misleading.

34 The seventh entry is in relation to an incident on 25 September 2002 (E 15654358). The second of the two narratives concludes with the following statement:

“Neighbours at this time indicated to police he [Mr Chand] appeared mentally unstable and had paranoia about many things. It would appear to police that this report is fictitious due to the Infmts [Mr Chand’s] mental state.”
35 The first part of this statement is one of fact; the second part is one of police opinion, which suggests a mental aberration on Mr Chand’s part but does not specifically allege mental illness. The evidence founding the police opinion is, presumably, the evidence provided by neighbours. I am not satisfied that either part of the statement is incorrect or misleading and it should not therefore be amended.

36 The eighth entry relates to an incident on 27 April 2002 (E 28417901). The entry appears in the first of two narratives:

“... checks also revealed that the victim [Mr Chand] has warnings regarding a possible mental illness and vexacious [sic] complaints ...

... The victim became upset at police suggestions that he may suffer from some form of mental illness and stated that the police had wrongfully put a report on the computer saying that he was mentally ill and now that all police think he is crazy when he is not. The victim further said that he had written letters to the ombudsman and the region commander regarding same.

It is the opinion of the investigating police that the victim does have some sort of mental illness, however he gave no indication that he is likely to harm himself or anyone else and as no offence was committed, the victim could not be scheduled...”

37 The first and second paragraphs are statements of fact. The third paragraph is a statement of opinion – of their impression at the time - based, it would appear, on the officer’s assessment of the situation. I am not satisfied that this is incorrect or misleading. In my view, there is no justification for amendment of the eighth entry.

38 The ninth entry relates to an incident on 14 April 2002 (E 14255979). The narrative states: “Police are of the opinion that CHAND may be suffering from a mental condition.” Once again, it appears that this statement was based on the officer’s assessment of the situation. I am not satisfied that the opinion is incorrect or misleading.

39 The tenth entry relates to an incident on 25 January 2002 (E 13778658). The narrative states: “POI [Person of Interest – Mr Chand] has mental illness, will attack police.” In my view, this statement, purportedly of fact, is not supported by the narrative and, there being no other evidence to support it, the statement should be considered incorrect or misleading and should be deleted. Its deletion will not detract from the recorded history of the incident.

40 The eleventh entry relates to an incident on 4 January 2001 (E 11392632). The narrative states:

“There have been similar allegations made in the past by the Victim [Mr Chand] and it is thought by the Police that the Victim is suffering from some sort of mental illness or Paranoia.

When asked the victims wife stated that the victim was sane. The Intell report stating the victim is sane has been noted by Police ...”

41 In my view, the entry is not incorrect or misleading. It refers to past allegations, and expresses the officer’s opinion about Mr Chand’s mental health, it would appear, based on his assessment of the situation; there is also acknowledgment of the Intelligence report. There is no basis for amending the entry.

42 The twelfth entry relates to an incident on 21 July 2000 (E 9301959). The narrative states: “The victim [Mr Chand] was asked if he had ever been to Cumberland Hospital and he asked what people go there for. Police informed him that it was for assessment. He stated that he did not need to be assess [sic] and that he was not crazy.” This is a factual account and not incorrect or misleading. There is no basis for amending the entry.

43 The thirteenth entry relates to an incident on 23 June 2000 (E 9255620). The narrative states: “In the past I’ve tried to talk the victim [Mr Chand] into going to Merryland Community center [sic] to get help with his mental health issues (Paranoid), but he wouldn’t go.” In my view, the entry is not incorrect or misleading. It expresses the officer’s opinion about Mr Chand’s mental health issues and records the action the officer has taken in this regard in the past. There is no basis for amending the entry.

44 The fourteenth entry relates to an incident on 14 December 1999 (E 8465329). The second of two narratives states: “I believe the victim [Mr Chand] is suffering from paranoia, and so have organised to have the victim Mr CHAND assessed by staff at the local mental health team at Merrylands Community Health.” The entry goes on to record the officer’s having spoken with a member of the team about Mr Chand, and notes that he has not yet talked to Mr Chand about this. The police officer is merely stating his opinion in this entry and recording how he is trying to get Mr Chand assessed. In my view, the entry is not incorrect or misleading. It is not attempting a diagnosis; rather it is explaining the action he is taking. There is no basis for amending the entry.

Conclusion

45 For the reasons stated above, the following entries in the COPS records concerning Mr Chand should be amended under s 43(1)(a) of the FOI Act:

First entry (E 17867979): the warning “MAY HAVE PSYCHIATRIC ILLNESS” should be deleted.

Second Entry (E 23105121): the words “It appears that CHAND suffers from a form of mental illness” should be deleted.

Third entry (E 19338654): the words “did in fact suffer from a mental illness and” should be deleted.

Sixth entry (E 20393781): the words “It was evident that the complainant is suffering from some form of mental illness” should be deleted.

Tenth entry (E 13778658): the words “POI has mental illness, will attack police” should be deleted.

46 In my view, the other entries are not incomplete, incorrect, out of date or misleading in a material respect, and the Commissioner was justified in exercising his power under s 44 of the FOI Act to refuse to amend those entries in the COPS records concerning Mr Chand under s 43(1)(b).

Decision

47 That part of the Respondent’s decision to refuse to amend the Computerised Operational Policing System (COPS) records concerning the Applicant in relation to the first, second, third, sixth and tenth entries in those records is set aside and in substitution therefor the amendments set out in par 45 of this Statement of Reasons will be allowed. The Respondent’s decision is otherwise affirmed.