Director General, Department of Community Services -v- S

[2000] NSWADTAP 27

Appeal Panel

CITATION:	Director General, Department of Community Services -v- S [2000] NSWADTAP 27
PARTIES:	APPLICANT Director General, Department of Community Services RESPONDENT S
FILE NUMBER:	009013
HEARING DATES:	17/08/2000
SUBMISSIONS CLOSED:	08/17/2000
DATE OF DECISION:	12/19/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	O'Connor K - DCJ (President); Smith MB - Judicial Member; Bolt M - Member
CATCHWORDS:	statutory interpretation - opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993184
DATE OF DECISION UNDER APPEAL:	03/17/2000
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	S v Director General, Department of Community Services [2000] NSWADT 24 Corbett and Australian Federal Police 5 AAR 291 Re Leverett (1985) 8 ALN N135 Re Resch and Department of Veterans’ Affairs 9 ALD 380 Re Cox and Department of Defence 20 ALD 499 Re Jacob v Department of Defence 15 ALD 645 RR v Department of Army (1980) 482 F Supp 770 Re Warren and the Department of Defence (Cth AAT, 22 December 1993 N92/621) A and Director of Family Services [1998] ACTAAT 249 Morgan v Dept Education and Training [1999] NSWADT 91 RR v Department of Army (1980) 482 F Supp 770 Bennett v University of New England, unreported 7 August 1991, Dist Ct Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369 Re Toomer and Department of Primary Industries and Energy (1991) 22 ALD 164 Re Jackson and the Department of Social Security (Cth AAT, 6 November 1991, DN 7448, unreported Doelle and Legal Aid Office, Information Commissioner (Queensland), (1993) 1 QAR 205 Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration v Teoh (1995) 183 CLR 273
REPRESENTATION:	APPLICANT R Henderson, counsel RESPONDENT J Johnson, counsel
ORDERS:	1. The decision and order under appeal is affirmed, with one variation, being the addition of a further term to the order as follows:; '6. Liberty is reserved to any party to apply to the Tribunal for further orders clarifying or concerning the implementation of the above.'

1 This is an appeal in relation to a decision, S v Director General, Department of Community Services [2000] NSWADT 24, made by the General Division of the Tribunal (the Tribunal) under the Freedom of Information Act 1989 (the FOI Act). The appeal challenges a decision by the Tribunal to require deletion or obliteration of specified text in two records relating to a person in care. The Tribunal found the offending passages to be incorrect or misleading.

2 As the case relates to a person under the care of the appellant agency, all identifying particulars have been suppressed. That person is referred to as ‘Y’ in these reasons, and his mother who is the applicant for access under the FOI Act is referred to as ‘S’. For convenience in these reasons the appellant will be referred to as the agency.

Background

3 S’s child, Y, is a person with the disability of severe autism, and since about the age of 5 (he was 17 at the time of the Tribunal’s decision) he has been in the care of the agency. Y is a full-time resident in an agency group home in the Wollongong area. But he regularly spends time at home. The Tribunal noted that there was a history of tension between the parents and the agency over issues to do with the quality of Y’s care at the group home.

4 The documents in issue in this case are two documents written by a senior officer, Mr Greg Hale, Assistant Manager, Child and Family Services at Dapto. They are dated 25 February 1997 and 27 February 1997.

5 The first dated 25 February 1997 is in the nature of a general assessment of issues relating to the care of Y, as seen by Mr Hale. The main part of the text is set out in the Tribunal’s reasons for decision at [12] and will not be repeated here.

6 Essentially, it expresses concern that when in the group home environment Y engages in behaviour which is difficult to manage so as to ensure a safe environment for other residents, but his parents do not appear to experience similar problems because they have obtained medical assistance of a kind (involving the use of sedative medication) that they have not permitted the agency to have access to.

7 Read as a whole the report could be construed as conveying an impression that there was a lack of cooperation by the parents with the agency in relation to the agency’s role as the primary carer for their son.

8 In the case of the second document the key text is set out in the Tribunal’s reasons for decision at [14]. It is a more specific type of report. It reports a contact from an assistant manager, disability services, from Shellharbour, regarding a situation that had occurred the previous weekend (21 to 23 February 1997) involving Y. In this instance, essentially the report expressed concern that a medication provided to S for use on a severe body rash being suffered by Y was not given to the group home on Y’s return because of concerns on the part of S and her doctor that it might be misused by staff at the home.

9 In both instances Mr Hale recommended to a responsible officer of the agency that the matters raised be dealt with as a formal notification of suspected child abuse pursuant to s 22 of the Child (Care & Protection) Act 1987 (the legislation then in force) and be formally investigated.

10 The agency declined to take that step. The result, as was agreed by the agency before the Tribunal (see [50] of the reasons), was that the reports did not become notifications governed by s 22.

11 At this point it may be helpful to refer to the nomenclature used in the agency to describe different levels of report. The descriptions ‘Intake’ summaries or reports and ‘Notification Intake’ summaries or reports are used to differentiate between reports that do not constitute s 22 reports and those that do fall under s 22. The major immediate consequence flowing from treating the report as a formal notification is that a field investigation is commenced. (See further as to this distinction [23] of the reasons of the Tribunal.)

12 In this instance both reports were ultimately classified as Intake Summaries rather than as Notification Intake reports. But in the course of correspondence between S and the agency, both parties sometimes referred to the documents as Notification Intake reports. This also occurred in the course of these proceedings.

13 Both classes of documents are placed on the computerised Client Information System (CIS) and remain available to authorised officers as background information, in accordance with agency policies on the use of such information. The data is normally available to a wide range of staff within the agency. See further Tribunal’s reasons at [17]. But the documents in issue in relation to this case could only be viewed after specific authorisation from a named area manager (see Ex 1 before the Tribunal below).

14 Clearly reports of this kind are matters of great seriousness for any person named in them as a possible perpetrator of abuse, even if ultimately that are not treated formally as having the status of a s 22 notification. Moreover it is apparent that whatever ultimate classification is given to the report, it tends to continue to be described as a ‘notification’. In this case Y’s mother, S, and her husband were in effect named by the assistant manager for the area as persons suspected by him of placing their child at risk.

15 S had prior to the making of these reports expressed concerns over the care of Y in the group home. These expressions of concern had given rise to an official inquiry by the agency, undertaken by Ms Anderson, an agency officer, and Mr French, an officer of the non-government organisation, People with Disabilities Inc.

16 Key passages from the Anderson/French report as they bear on this case are set out at [22] and [23] of the Tribunal’s reasons. The contents of this report were not contested by the agency before the Tribunal. The Anderson/French report found that ‘Departmental staff held genuine concerns about Y’s well being in relation to perceived differences in the permitted use of medication by his parents and staff.’ But, the report continued, ‘[w]e have not however, in the course of the investigation, identified objective grounds to show that the concerns were valid.’

17 The report also contained a criticism of the decision of the officers to deal with their concerns in this case by way of use of the procedure of referral of the matter to the agency for consideration for action under s 22 rather than first seeking to resolve the matter by other means. The report said ‘the referral … without having attempted to resolve the matter by other means, reveals a clear lack of skill and judgement on the part of the Departmental officers concerned.’ In addition, the Tribunal also had before it evidence favourable to S which was not challenged by the agency in relation to the events giving rise to the Intake Summaries: see [20] and [21].

18 The report is critical as it provides the foundation for the Tribunal’s key factual conclusions in relation to the contents of the Intake Summaries.

19 The critical findings of the Tribunal at [28] and [29] were as follows:

1. There was no factual basis on which the opinions expressed in the Intake Summary documents could have been validly formed.
2. The opinions which were based on incorrect or non-existent facts are misleading because they suggest, among other things, that Y could be at risk because of his parents’ conduct.

20 S had requested that the documents be ‘deleted’ from the agency system (see Tribunal decision [10]. In reply to this request made on 8 July 1999 in the context of an internal review application, the agency replied on 5 November 1999 that the agency ‘is not able to delete the records’ but ‘accepts that the information that is currently on the CIS in relation to Y is incomplete and out of date in certain respects.’ The Department offered to amend the records so that they showed the correct information. The Tribunal’s decision does not indicate whether a text was developed.

21 At an earlier point (22 October 1998) the agency had offered to add a notation to the record which, under agency policies, it intended to leave in the CIS. The notation offered at that point is set out at [9] of the Tribunal’s reasons. S was not satisfied with the option of adding a notation and leaving the underlying records in circulation, or the further option of effecting corrections, and consequently brought the application for review by the Tribunal.

Tribunal Order

22 As noted earlier, the Tribunal found that in a number of instances, set out in the decision, the records were misleading and ordered that several offending parts be ‘obliterated’.

23 The terms of the Tribunal’s order (see [69]) were:

‘The decision of the Director General, Department of Community Services, not to amend the relevant records in the manner requested by the applicant should be set aside. The following decision is made in its place:
The two Intake Summaries dated 25 February 1997 and 27 February 1997 in relation to Y should remain in the CIS system and on the files but the passages identified as incorrect or misleading in paragraphs 30 to 38 of this decision should be obliterated or deleted from the record. An annotation in relation to each record should be provided on the CIS system and the paper files in the following terms:

The Administrative Decisions Tribunal has ordered that several passages in the following record be deleted or obliterated. These orders were made because the Tribunal found that those passages were incorrect or misleading and should be amended pursuant to the Freedom of Information Act 1989 .’

24 The agency appeals against the decision. The right of internal appeal to an Appeal Panel of the Tribunal is dealt with by Part 1 of Ch 7 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). An appeal to be successful must identify an error of law of sufficient materiality to warrant setting aside of varying the decision below.

Grounds

25 The appeal was made on three grounds:

(1) that the Tribunal erred in law in its interpretation of ‘misleading’ as used in the FOI Act, and in its application of that concept to the two documents in question
(2) that the Tribunal erred in law in its interpretation of ‘amendment’ as used in the FOI Act
(3) that the Tribunal failed to accord the agency procedural fairness in not giving it the opportunity to make submissions on its proposed orders in relation to the amendment of the records before making final orders.

26 Part 4 of the FOI Act deals with amendment of records. Section 39 gives a person to whom access to an agency document has been given a right to apply for the amendment of the agency’s records:

‘(a) if the document contains information concerning the person’s personal affairs;
(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.’

27 In the case law on FOI, the contents of documents have generally been characterised as having two elements: purely factual material; and material in the nature of evaluations or statements of opinion.

28 In this instance the Tribunal has concluded that many passages are misleading.

29 In support of its appeal, the agency submitted that the offending passages are in each instance merely statements of observations or opinions held at the time by the officers creating the records.

30 The agency says that the Tribunal misdirected itself in approaching its task by asking whether the records were capable of a pejorative interpretation in relation to the care afforded by the parents, and having found that to be so concluded that they were misleading and should be removed from the agency’s information system.

31 The agency says that the proper approach to the question of whether a document is misleading is simply to ask whether at the time they were created the officers sought to misled. The agency says that there was no evidence in this case of that kind.

32 The agency submissions, as we interpret them, seek to assert that the only inquiry a Tribunal should make is one into the mind or intentions of the author of the document at the time the contents in dispute were created. Applied to the present case, if the contents recorded were in the nature of genuinely held observations or opinions (as was considered to be the case by the Anderson/French report) that is enough to protect them from the conclusion that they are misleading in terms of the FOI Act.

33 In its written submissions the agency contended that the statements in issue should be regarded as opinions. It contended amendment could only be ordered if the record did not correctly reproduce the opinion formed by the author or if ‘the opinion was based solely on discredited facts’ (see p 9 of the appellant’s written submissions; author’s emphasis).

34 We do not agree with this approach.

35 A genuinely held opinion can nevertheless be a misleading one, and so misleading that it may as a matter of good administration and in fairness to its subject be necessary to remove it from circulation. The case-law, appropriately, reflects care on the part of courts and tribunals in approaching the question of whether opinions should be revised or changed by way of formal amendment. The Tribunal below at [25] and [27] cited several cases which acknowledge these propositions: see, for example, Re Corbett and Australian Federal Police 5 AAR 291, Re Leverett (1985) 8 ALN N135, Re Resch and Department of Veterans’ Affairs 9 ALD 380; Re Cox and Department of Defence 20 ALD 499, Re Jacob v Department of Defence 15 ALD 645, and the leading United States case frequently referred to in this context, RR v Department of Army (1980) 482 F Supp 770. See also Re Warren and the Department of Defence (Cth AAT, 22 December 1993 N92/621).

36 It is also important to differentiate between on the one hand expressions of opinion where the opinion is based on the possession of special expertise, such as applies in the case of a medical practitioner making a diagnosis, and on the other hand a situation where the opinion derives from a conclusion as to fact where no special expertise is involved. This is a case of the latter type. See generally A and Director of Family Services [1998] ACTAAT 249 (8 April 1998) esp at [35]. This case was one where the Tribunal found that an initial assessment gave misleading picture as to claims of physical injury and physical abuse towards a boy by his foster family. In that case the Tribunal concluded that it was sufficient that appropriate notations be placed on the documents, an issue which is further examined in the heading, ‘Mode of Amendment’, below.

37 The cases properly distinguish situations where there is a factual foundation for an opinion which is expressed and those where there is none. They also properly distinguish those cases where the opinion has followed from a process of assessing and resolving conflicting versions of the facts. Both of these factors were present in the case of Morgan v Dept Education and Training [1999] NSWADT 91, upon which the agency sought to rely but which we do not consider to be directly applicable here.

38 The present case, as the Tribunal noted, was not one where the opinion had been shown to have a factual foundation or one reached after making choices between conflicting versions of the facts. This was a case where both an independent inquiry and the material placed in evidence before the Tribunal permitted the conclusion that there was no factual basis shown for the opinions and concerns expressed in key parts of the two Intake Summaries.

39 The submission that an opinion can only be amended where it is based ‘solely on discredited facts’ appears to derive from an interpretation of the US case RR v Department of Army (1980) 482 F Supp 770. The contention appears to be that if there are some facts however minor that could support the opinion then nothing should be done by way of amendment.

40 It would be an extraordinary failure of competence if a considered report did not contain some facts that were accurate. In the present case that might be matters such as name, address and location of child at various times. But the critical facts here were those that described the parent’s conduct in relation to care and treatment. The Anderson/French report was unable to validate them on an objective basis.

41 As to the US case, RR, we make the following brief observations. This is an early and important ruling on the operation of the US Privacy Act 1974 rights of access and amendment to Federal agency personal records. We endorse the thrust of the following observations 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.’

42 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.

43 On the particular facts in RR the court ordered deletion of a number of biographical history items that were shown in evidence to be ‘conclusively false.’ (775)

44 As to a doctor’s professional diagnosis of the individual’s mental condition the court found that the doctor ‘did not rely exclusively on the discredited social history when diagnosing plaintiff’s condition’ (id.). Accordingly it was not prepared to intervene to amend the record, and pointed to the complexities of intervening in circumstances where the ‘factual predicates for such opinions are diverse (id.) and where ‘it is next to impossible to reconstruct the process by which the opinion was formulated and determine what the opinion would have been.’ In this instance the medical judgments were ‘not so thoroughly discredited as to justify their deletion or contradiction in the record.’ (id.)

45 Returning to the present case, it was clearly open for the Tribunal to make adverse findings on the question of whether there were passages in the document which were misleading.

46 Dunford DCJ (as he then was) dealt briefly with the process of analysis required of the external merits review forum in Bennett v University of New England, unreported 7 August 1991, Dist Ct) at p 14, and we adopt his observations:

‘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 wrong impression.’

47 In the present case, the Tribunal concluded that each of the reports conveyed a false impression that S was an unco-operative carer to such an extent that the agency’s ability to manage its responsibilities in relation to Y were compromised, with consequent adverse effects on Y as well as other residents of the group home. (In any event, had the Tribunal chosen to apply the test advanced by the agency, it would, we consider, have been likely to conclude that the allegations as to fact which actuated the report to the agency were discredited by the conclusions of the Anderson/French report.)

48 We now turn to each of the specific adverse findings of the Tribunal in relation to the report of 25 February 1997.

49 In relation to the first page of this document, the Tribunal considered that the only information which was incorrect or misleading was the note ‘Primary issue’ against which is written: ‘Family: Well-being concerns for child.’ The agency submitted that these words were no more than a description reflecting the author’s concerns. In our opinion, it was open, as part of the task of fact-finding, for the Tribunal to conclude as it did that this was an inaccurate or misleading statement in circumstances where no factual foundation can be shown. It is open to the Tribunal to conclude that a set of words, or heading that may be innocuous in many contexts can take on the character of an inaccurate or misleading statement when viewed in the particular context. This is a routine fact finding process and does not admit of intervention by an Appeal Tribunal on the basis of error of law.

50 We accept that there is a difficulty with the way the Tribunal expressed its finding at [30] of its reasons. It said that ‘This comment is misleading because it suggests that there are genuine concerns about Y’s well being that are related to his family. The French/Anderson report and evidence from S and the two doctors establishes that these concerns are unfounded.’

51 The difficulty relates to the use of the word ‘genuine’. It was accepted by the Tribunal elsewhere in its reasons, and it was also accepted by the Anderson/French report that the officers had expressed concerns which they genuinely held. Our understanding of the Tribunal’s use of the word ‘genuine’ in the present context is that it was seeking to convey that the concerns were not ‘genuine’ in the sense of having a proper foundation. This appears from the Tribunal’s following sentence: ‘The French/Anderson report and evidence from S and the two doctors establishes that these concerns are unfounded.’ We consider the that term ‘genuine concerns’ was not being so as to reflect on the intentions or state of mind of the author. We reject the submission to the contrary made by counsel for the agency.

52 The next two sentences which were found to be misleading by the Tribunal are these: ‘Having been involved in briefing meetings, I have come to understand that there are two levels of information regarding Y’s care. They can be broken up into two major areas, one being his management in the disability program at [name omitted] group home and the other, his management while in his parents direct care while on home leave.’

53 Again the agency submits that there is no basis upon which statements such as these could be found to be misleading. Again we agree that in many contexts a statement of this kind seeking to divide a subject to be discussed into two categories would be innocuous. But again the process of fact-finding is one for the primary Tribunal. It is plain that it took the approach of reading this text in the broader context of the contents of the document as a whole and the place that document had in the regulatory system. It was open to it to reach an adverse conclusion, and again no issue justifying scrutiny on an error of law basis is raised.

54 We will not go on to recite the next paragraphs criticised. In our view it was open to Tribunal to form the views that it did, and there are no grounds for interfering on an error of law basis with the reasoning.

55 Our view is the same in relation to the contents of the second document most of which were the subject of adverse findings by the Tribunal below.

56 The question to be asked, as we see it, is whether the passages in issue would be reasonably likely to cause a reader to form an understanding of the subject matter which is not reasonably accurate or fair. The author will usually be a public servant engaged in the performance of official duties and free of any malice or other agenda hostile to a subject of a record. Nevertheless circumstances may arise where no factual foundation is established for the observations or opinions with the result that an objective reader (such as another public servant accessing the record later) may be misled as to the value, relevance and fairness of the observations.

57 In our opinion, the process that the Tribunal adopted in scrutinising the records accorded with the standard that we prefer. It assessed the totality of the documents in issue, and formed the view that various passages when viewed in their broader context were reasonably likely to mislead.

58 Accordingly, there is no basis in our view for disturbing its findings of fact in this regard.

(2) Mode of Amendment

59 The next submission by the agency related to what limits apply to the mode of the amendment that an agency can be required under the Act to undertake.

60 An agency is required to determine an application for amendment ‘by amending its records in accordance with the application, or ..by refusing to amend its records’: s 43(1). The grounds upon which it may refuse to amend are limited to those specified in s 44, most relevantly to this case on the ground (para(a)), ‘if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect.’

61 If an agency refuses to amend its records, the applicant may require the agency to add a notation to the records: see s 46(1). If a notation required by an applicant is added to the records, the agency is obliged by s 46(3) to draw attention to the applicant’s claim and to set out particulars of the notation whenever the information is disclosed to any person or agency.

62 The agency essentially contends that it is not lawful for the Tribunal to direct the agency to ‘obliterate’ those contents of its records that are found to be misleading. It argues that the original record can not be disturbed in that way; ‘obliteration’ does not fall within the meaning of ‘amendment.’ As we understand the submissions, its contention is that the furthest that the Tribunal can go is to order that an alternative version of the passages in issue be attached to the record.

63 These contentions essentially revisit matters that were considered by the Tribunal. In the course of that hearing, an argument was put to the effect that administrative policy based on the recommendations of a Royal Commission as to the maintenance of records relating to suspected child abuse prevented it from either removing the documents from circulation or interfering with their contents. It is against that background that the agency offered to include with the original records a notation; though as has been noted earlier there was a point at which the agency did offer to make corrections, though there is no information in the Tribunal decision as to whether that offer was taken any further.

64 It is plain in our view that the Act itself treats a notation as a lower order of intervention into the contents of an agency’s record keeping system than the effectuation of an amendment. This is reflected in s 46 of the FOI Act where the possibility of notation is dealt with as an alternative that might be adopted where the agency has refused to amend its records. Clearly amendment involves something more than the mere addition of a notation.

65 The Act does not give any special definition of ‘amend’ or ‘amendment’; so these words should be given its ordinary meaning. In our view, the ordinary meaning to be attributed to ‘to amend’ is ‘to alter, to correct, to rectify, to add.’ This interpretation is borne out by the dictionary meanings. In the Macquarie Dictionary (2nd Aust ed. 1991) there are two meanings relevant to this discussion given - ‘to change for the better; improve’, and ‘to remove or correct faults in; rectify’ while the Australian Concise Oxford Dictionary includes the meanings ‘correct error in (document)’ and ‘to make better’.

66 No authority was cited for giving ‘amendment’ a more limited meaning. In Bennett v University of New England, cited earlier, Dunford DCJ ordered an amendment by way of deletion.

67 The current relevant provisions in Commonwealth legislation are sub-sections (2) and (3) of s 50 of the Freedom of Information Act 1982 which provide:

‘50. Amendment of records
…
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date---setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.’

68 Cases under the Commonwealth FOI legislation have found that it is permissible to delete inaccurate or misleading information, even after amendments made in 1991, now reflected in s 50(3), expressly limited the use of obliteration. The Commonwealth position is that deletion should only be used as a last resort when no other form of amendment is sufficient to adequately rectify the harm caused by the original information: Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369). For a fuller discussion of the ways in which records may be amended, see Re Toomer and Department of Primary Industries and Energy (1991) 22 ALD 164 at 177-181, a case decided when the previous provisions were applicable.

69 Moreover, it is to be noted that the NSW Act has a less constrained power of amendment, since it allows amendment of unspecified ‘records’, whereas the Commonwealth Act empowers amendment only ‘of the record of the information’ found to be incorrect or otherwise defective: Freedom of Information Act 1982 (Cth), s 50(1).

70 In the absence of any limitation of the kind found in Commonwealth legislation, an amendment can, we consider, take the form of a removal, an addition to, or a variation of the defective text.

71 The easiest examples are to be found in cases where there is a plain factual error. In such a case an outright substitution of the accurate data in place of the inaccurate data (for example substitution of a new birth date, substitution of accurate income information) would be the obvious form of amendment. A good example of this approach is provided by Re Jackson and the Department of Social Security (Cth AAT, 6 November 1991, DN 7448, unreported) where incorrect ticks were placed in boxes next to questions that, in fact, were not asked as they should have been of an applicant for a sole parent’s pension. Deletion of the ticks was held to be necessary to rectify the misleading nature of the information.

72 Often notation will be an adequate remedy. Where there are differing perceptions of a set of events, and the perception recorded by the agency has some foundation then it may be prudent do leave the matter rest with a notation of the individual’s perception being added to the record. This is essentially the course that was adopted in Morgan v Director General, Dept of Education and Training [1999] NSWADT 91 (decision set aside on other grounds). We do not consider that case to be authority for the proposition for which it was invoked by the agency, that it set an outer limit on what action may be appropriate in relation to the notation or amendment of offending records.

73 Where a record contains observations or opinions, those observations or opinions may be so unfair or misleading that the only proper course is to remove them from further circulation. An amendment can include an excision. That excision could be effected by obliteration of offending text; or, more rarely, substitution of new text.

74 We have noted that the ACT Tribunal in A and Director of Family Services, cited above, said at [40]:

‘I do not consider that is appropriate that documents be removed from files or that they be altered in such a way that the original document no longer has a place in the agency’s records. To do this would be to rewrite history and I do not see that as the intention of the Freedom of Information Act. Nor is it the function of the [ACT] Act to require a document that expresses an opinion of the author, however misguided the opinion might have been, to be removed from the files. What the [ACT] Act requires is that, where facts are wrongly stated or their interpretation may become distorted because they are isolated from their context, is that the files should record the facts accurately and, where necessary, record also the context. It is sufficient that appropriate notations be placed on the original documents.’

75 We do not accept these views as being appropriate in all circumstances where offending material appears in a record. These views fail to deal with the need to ensure that inaccurate or misleading material does not remain in routine circulation, and, in our view, place undue reliance on the notation as a safeguard against misuse in all circumstances.

76 Whether an amendment can go so far as to involve the complete removal of a record from a record system is not a question that we are required to address in this case (as to the Queensland position, see Doelle and Legal Aid Office, Information Commissioner (Queensland), (1993) 1 QAR 205 at [44] to [97]).

77 The agency seeks to introduce an artificial restriction in to the operation of the FOI Act by its submission that the right of amendment does not include obliteration. Such an interpretation would severely limit the rights of citizens who have been damned unfairly by a government record. The ordinary meaning of ‘amend’ and ‘amendment’ does not in our view contain the limitation for which the agency contends.

78 We acknowledge that there will often be a need to retain a record of the original inaccurate or misleading statement for some purposes. It may be in the positive interests of the person adversely affected by the report that a record of the transaction revising the record be retained; it may also be in the interests of posterity in the event that the circumstances giving rise to the amendment need to be revisited. There may also be a broad historical value in retaining a record of the transaction giving rise to the new record. But these outcomes can all be achieved without having a record found to be defective continuing to circulate in the primary record system of the agency.

79 Orders can usually be made that give effect to the balancing of the various interests mentioned. But it may well be that there may be some extreme circumstances in which the only solution is to remove the offending record from all record systems. Short of this outcome, orders could be made which archive or seal the defective record, and impose strict conditions on future access.

(3) Procedural Fairness in relation to the making of Orders for Amendment

80 The Tribunal order in this case has been set out at para [23] of our reasons.

81 It is a form of order often found in the cases decided under Commonwealth law.

82 It is clear from the reasons for decision that when deciding on the preferred form of amendment, the Tribunal weighed up the alternatives including the complete removal of the records as was primarily sought by the applicant, and the mere addition of a notation as had been submitted by the agency. However, the Tribunal favoured what it described as the ‘third option’ which was the making of partial obliterations. In circumstances where the agency had not made submissions directed at this option, the agency submitted at the appeal that there had been a failure to accord it procedural fairness by the Tribunal.

83 We do not consider that there was such a failure in the present case. In the case before the Tribunal the parties had chosen to make their submissions at opposite ends of an available range of approaches open to the Tribunal. The agency had conceded that parts of the document were ‘incomplete and out of date in some respects’ (see Tribunal decision at [10]), but never identified precisely the parts to which this concession related.

84 However, if the applicant’s case was successful, it was reasonably possible to anticipate that at least three courses of action were open to the Tribunal – to leave the original record intact and in use in the primary record system but attach to it a qualifying statement as to its fairness (a notation); to have the offending passages obliterated, with no additional information provided, with the balance of the records to remain in use in the primary record system of the agency; or for the records to be removed in their entirety from circulation. Nothing was said by the Tribunal that it would not take the middle course, and the agency itself had referred the Tribunal to reported cases where this course had been taken.

85 The agency was legally represented at the hearing before the Tribunal. The orders actually made fell we consider within the predictable range of possible orders. There was no obligation in a case such as the present for the Tribunal to invite submissions on every possible permutation of its thinking (cf. Hoffman-La Roche & Co v Secretary of State forTrade and Industry [1975] AC 295 at 369; Commissioner for ACT Revenue v AlphaonePty Ltd (1994) 49 FCR 576 at 592; Minister for Immigration v Teoh (1995) 183 CLR 273 at 305).

86 We therefore do not consider that it was necessary for the Tribunal to invite the agency to make further submissions before proceeding to frame its order.

87 There remains, however, a concern on our part as to whether the terms of the Tribunal’s order might lead to practical difficulties in its implementation. In particular, it is unclear to us whether the order sufficiently addresses whether, and where, a copy of the original version of the record is to be retained. For example, it is unclear whether the Tribunal intended a copy of the unamended documents to be retained in the Tribunal’s files or on the files of the agency’s legal representatives. The agency made no submissions to us as to this, but it is not clear to us that the Tribunal has yet fully considered the implementation of the order.

88 To meet the concerns that we have raised, we propose to vary the decision of the Tribunal by adding to it the further order:

‘6. Liberty is reserved to any party to apply to the Tribunal for further orders clarifying or concerning the implementation of the above.’

The decision and order under appeal is affirmed, with one variation, being the addition of a further term to the order as set out in para 88 of these reasons.