Crawley and Centrelink

[2006] AATA 571

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 571

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/132

GENERAL ADMINISTRATIVE DIVISION		)
Re		KEVIN CRAWLEY

Applicant

And CENTRELINK

Respondent

DECISION

Tribunal Senior Member BJ McCabe

Date30 June 2006

PlaceBrisbane

Decision The decision under review is affirmed.

...........[Sgd]..........

BJ McCabe

SENIOR MEMBER

CATCHWORDS

FREEDOM OF INFORMATION – amending documents – annotating documents – whether personal information is incomplete, incorrect, out of date, misleading – documents form historical record – Tribunal does not have power to amend documents – appropriate to have the documents annotated

Freedom of Information Act 1982 s 48, 51, 54, 55

Cox and Department of Defence (1990) 20 ALD 499

Gordon and Secretary, Department of Social Security (1991) 25 ALD 335

Searle and Secretary, Department of Family and Community Services [2000] AATA 371

REASONS FOR DECISION

30 June 2006

introduction

Senior Member B J McCabe

1. Kevin Crawley made an application under s 48 of the Freedom of Information Act 1982 (the Act) to amend a series of medical reports appearing in his Centrelink file. Mr Crawley says the documents contain defamatory and misleading information about a medical condition. The Chief Executive Officer (CEO) of Centrelink declined to amend the records but has agreed to include an annotation on the file noting the applicant’s concerns pursuant to s 51. The decision was affirmed during the course of an internal review conducted pursuant to s 54. The applicant has asked the Tribunal to reconsider the decision under s 55.

the material before the tribunal

2. The Tribunal was provided with the documents required pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The T documents include a number of medical reports, some of which include information about the medical condition in question. The respondent also tendered a number of medical reports that have been annotated.

3.      Mr Crawley appeared on his own behalf. Ms Oliver appeared on behalf of the respondent.

the background facts

4.      The applicant has been receiving welfare assistance for a number of years. He says he first received the invalid pension (now known as the Disability Support Pension, or DSP) on the strength of a report provided by a social worker. The social worker’s report said the applicant suffered from a cognitive impairment. Mr Crawley said he never suffered from such a condition. He says the report was contrived so he might qualify for the invalid pension. After this startling admission, I cautioned the applicant that he was not required to answer any questions or provide information that would have the effect of incriminating him.

5.      Mr Crawley has seen a number of doctors over the years who provided reports to Centrelink that enabled him to retain his invalid pension or DSP. A number of those reports refer to cognitive disorders, acquired brain injury (apparently resulting from a car accident) or a personality disorder. Other reports doubt whether the applicant suffers from any of those conditions. I note the report of Dr Edmonds in particular says the applicant does not suffer from a cognitive problem or a personality disorder. The applicant, for his part, insists he never suffered from any of those conditions. He says the reports merely provided Centrelink and its predecessor with the information required to maintain his entitlement to welfare payments. He said he was not responsible for the information and never asked his doctors to lie on his behalf. Interestingly, he went on to say that if he did have any of the conditions referred to in the reports, he no longer suffers from those conditions. In those circumstances, he argued, the reports presented a misleading picture and required amendment.

6.      The applicant said he wanted a job. He said he does not want to receive welfare. He said the material on his file made it more difficult for him to get work. He claimed Centrelink officers who have regard to his file form an unfavourable view of him. He said he was unable to access the Job Network arrangements because he had been banned. I gather I was being invited to infer that the ban was the product of misinformation contained in the file. Ms Oliver was unaware of all the details of the applicant’s dealings with Job Network providers but she said knew of behavioural issues that might have been an obstacle to providing those services. After hearing those comments, Mr Crawley appeared to acknowledge his conduct may have been an issue but suggested that was all in the past, and could not be changed.

the legislation

7. Where a person becomes aware that personal information in a record is incomplete, incorrect, out of date or misleading, he or she may apply under s 48 of the Act to have the record amended or annotated. It appears the power to amend does not extend to deleting or removing the documents altogether: Cox and Department of Defence (1990) 20 ALD 499 at 499. Section 50 authorises the agency holding the records to amend them where appropriate to do so. If the agency declines to amend the documents, it may decide instead to annotate them: s 51.

8.      Mr Crawley says a total of 13 medical reports should be amended because they are incorrect and contain misleading information about the state of his health. Centrelink has declined to amend them but has agreed to annotate the documents. Ms Oliver referred me to Centrelink’s policy set out in Chapter 6 of the FOI Manual. An extract of the policy is set out in the respondent’s statement of facts and contentions. The policy says Centrelink is reluctant to amend medical reports in the absence of evidence that the opinion in the report was based on a mistake of fact or the author was biased, unqualified or had acted improperly in preparing the report.

9.      Centrelink’s policy appears to be consistent with the Tribunal’s decision in Gordon and Secretary, Department of Social Security (1991) 25 ALD 335. In that case, the Tribunal held it was inappropriate to amend medical records in the absence of medical evidence that showed the original records were wrong. Even if the opinions expressed in the report were found to be wrong, the Tribunal said the record should remain unaltered because it did no more than reflect the opinions that were honestly held at the time. The documents formed part of an historical record, and one should exercise caution in tampering with history.

10.     This point was taken up by the Tribunal in Searle and Secretary, Department of Family and Community Services [2000] AATA 371. The Tribunal held it was inappropriate to tamper with the records unless the applicant was able to establish a prima facie case that the records were based on a mistake of fact or the author was biased or acting improperly. If a prima facie case can be made out, the respondent must assume the onus of showing that s 55(6) applies. Section 55(6) provides:

(6) The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that: …

(c) the amendment relates to a record of an opinion to which neither of the following applies;

(i) the opinion was based on a mistake of fact;

(ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.

11.     Whether or not the opinions are mistaken, there is simply no evidence they were based on mistakes of fact. I note Mr Crawley says the claims he had a personality disorder or cognitive dysfunction and a brain injury had their genesis in a report that was contrived. Taken at face value, the claim suggests impropriety on behalf of the person who completed that report. But that does not explain the other reports referred to in the file. Mr Crawley sought to argue that some of the other doctors had simply made assertions about his condition because they knew that is what Centrelink wanted to hear. I am unwilling to accept that claim without the benefit of hearing from the doctors concerned. I doubt such an inquiry would yield any useful information because the doctors concerned would be able to point to a body of medical opinion that suggests the applicant did suffer from the conditions at the time. In any event, I note Mr Crawley appeared to accept that he may have suffered from the conditions at some point.

12. It follows the effect of s 55(6) is that I do not have the power to amend the record in relation to the medical reports. They are historical records which appear to correctly reflect the (perhaps mistaken) views of their authors.

13. The respondent has offered to include an annotation on the file that records Mr Crawley’s objection and refers to the conclusions of Dr Edmonds which call into question the earlier reports. The annotation is made pursuant to s 51. I agree that is the appropriate course. I think the form of words used by the respondent is appropriate although the respondent should be free to amend the annotation should it choose to do so in consultation with Mr Crawley.

conclusion

14.     The decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         Associate      Adam Ryan

Date of Hearing  22 June 2006
Date of Decision  30 June 2006
The applicant represented himself.
The respondent was represented by Ms Oliver, a departmental advocate.