Edwards and Secretary, Department of Health and Ageing

[2011] AATA 643

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 643

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1416

GENERAL ADMINISTRATIVE DIVISION		)
Re		Thomas Edwards

Applicant

And Secretary, Department of Health and Ageing

Respondent

DECISION

Tribunal Senior Member A K Britton

Date14 September 2011 

PlaceSydney

Decision The decision under review is affirmed. The decision to annotate the subject documents is remitted to the respondent for determination under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act.

......................[sgd]........................

Senior Member A K Britton

CATCHWORDS

FREEDOM OF INFORMATION – request for amendment of personal records – whether documents contained personal information – whether documents incomplete, incorrect, out of date or misleading – decision under review affirmed – remittal of decision for annotation of documents

Freedom of Information Act 1982 (Cth) – ss 4(1), 48, 50, 51, 55(6), 61(1)

Administrative Appeals Tribunal Act 1975 (Cth) – s 42D

Health Insurance Act 1973 (Cth)

Higher Education Funding Act 1998 (Cth)

Re Page and Director-General of Social Security (1984) 6 ALN N171

Re Jacobs and Department of Defence (1988) 15 ALD 645

Re Warren and Department of Defence [1993] AATA 749

Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135

Re Strange and Civil Aviation Safety Authority (2002) 68 ALD 751; [2002] AATA 240

Re Wiseman and Department of Communications and Department of Transport (1984) 12 ALD 707; [1985] AATA 284

Re Neeson v Chief Executive Officer of Centrelink (2006) 154 FCR 489; [2006] FCA 1107

REASONS FOR DECISION

14 September 2011 Senior Member A K Britton           

1. Mr Thomas Edwards has made a request under s 48 of the Freedom of Information Act 1982 (Cth) (the FOI Act) for the amendment of various records held by the Department of Health and Ageing (the Department). That request was refused. Mr Edwards now seeks review of that decision by the Administrative Appeals Tribunal. Prior to the hearing it became apparent that the parties could not agree about the scope of amendments sought by Mr Edwards. As a consequence a consent determination was made remitting the reviewable decision to the respondent Secretary, under s 42D of the Administrative Appeals Tribunal Act 1975(Cth) (the AAT Act), with a direction identifying the scope of documents and the requested amendments to be considered.

2.      On remittal, the respondent Secretary refused to amend any of the subject records. That decision is the subject of this review.

Statutory framework

3. Section 48 of the FOI Act gives a person a right to apply to an agency for amendment or annotation of personal records and provides:

Application for amendment or annotation of personal records

Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:

(a)  that is incomplete, incorrect, out of date or misleading; and

(b)  that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

the person may apply to the agency or Minister for:

(c)  an amendment; or

(d)  an annotation;

of the record of that information kept by the agency or Minister.

4. Section 50 confers on an agency and the Tribunal acting as substitute decision-maker, the power to amend records on application:

Amendment of records

(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:

(a)  the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and

(b)  the information is incomplete, incorrect, out of date or misleading; and

(c)  the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

the agency or Minister may amend the record of information.

5."Personal information" is defined in s 4(1) to mean:

… information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

6.Section 55(6) provides:

The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g) [a decision refusing to amend a record of personal information in accordance with an application made under s 48], make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:

(a)  the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or

(b)  the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or

(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.

7.      The respondent Secretary bears the onus of establishing that the decision made on remittal was justified: s 61(1).

8. The terms “incomplete”, “incorrect”, “out of date” and “misleading” are not defined by the FOI Act. They have been held to mean:

Incomplete — not entire or not unqualified (Re Page and Director-General of Social Security (1984) 6 ALN N171 at N173); lacking in some mandatory detail (Re Jacobs and Department of Defence (1988) 15 ALD 645 (Jacobs) at 649); or not dealing with all the facts and circumstances surrounding the personal information in question (Re Warren and Department of Defence [1993] AATA 749 at [103]).

Incorrect — assertions which are factually erroneous or an opinion based on facts shown to be erroneous (Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135; Jacobs at 650).

Misleading — leading astray, causing to go wrong, giving the wrong impression, delusive, calculated to lead astray or to lead into error (Jacobs at 645).

Out of date — characterised by a notion of obsoleteness, lacking in possible relevance for future administrative purposes (Jacobs at 652, 653).

BACKGROUND

The Medical Rural Bonded Scholarship Scheme

9.      Established by the Commonwealth Government in 2000, the stated purpose of the Medical Rural Bonded Scholarship Scheme (MRBSS) was to increase the number of doctors working in rural and remote Australia.  In announcing the Scheme on 9 May 2000, the then Minister for Health and Aged Care stated:

$32.4 million [has been allocated] to provide 100 new scholarship places of $20,000 per annum to new medical students each year, in return for a commitment to work in rural Australia for at least six years after completing their post-graduate training.

10.     In 2000, 25 of the 100 MRBSS places were allocated to the University of Sydney.

11.     A student accepting a scholarship under the MRBSS was required to, among other things, work for six consecutive years in rural Australia. The Health Insurance Act 1973 (Cth) prohibited the payment of Medicare benefits provided by, or on behalf of, a practitioner who was in breach of a contract with the Commonwealth to work in a rural or remote area.

12.     In 2000, Mr Edwards applied to the Australian Council for Educational Research (ACER) for admission to the Graduate Medical Program (GMP). At that time, the University of Sydney (the University) was one of a number of universities participating in a common entrance scheme administered by ACER. Among other things, ACER administered the Graduate Australian Medical School Admissions Test (GAMSAT).  Mr Edwards’s GAMSAT score was sufficient to allow him to be considered for admission to the University of Sydney, the first of three universities he nominated as his preferred place of study.

13.     Applicants seeking admission to the University’s Faculty of Medicine in 2000 were required, among other things, to perform satisfactorily in an interview.  According to the University, the interview was “designed to assess suitability based on personal qualities criteria agreed by Faculty to be important for success in the University of Sydney Medical program and in later practice” (Exhibit A 3). 

14.     On 2 February 2001, the Dean of the Faculty of Medicine wrote to Mr Edwards, advising that he had:

[Q]ualified for the award of a Medical Rural Bonded Scholarship Scheme [MRBSS] place in the University of Sydney Medical Program commencing in February 2001 as a candidate for the degrees of Bachelor of Medicine and Bachelor of Surgery.  Enclosed with this letter is a contract for a Medical Rural Bonded Scholarship for you to enter into with the Commonwealth of Australia, together with explanatory information provided by the Commonwealth’

…

You are strongly advised to seek legal advice as soon as possible about this contract, so that you can return it by the required deadline.

…

In the Contract (Background Section; Section 5), the Commonwealth clearly stipulates that if you withdraw from the MRBSS at any time, the funding provided to the Institution for your university place will also be withdrawn, as well as any further scholarship payments to you.  Please note that MRBSS places are additional to our normal Commonwealth-funded DETYA quote of places.  In the event that you do withdraw from the MRBSS, we cannot provide you with a continuing unfunded place in our program; thus, your place will be terminated and your enrolment in the University of Sydney Medical Program will be cancelled.  Similarly, if you discontinue our medical program your place will be terminated and your enrolment … cancelled.  In both instances, should you decide subsequently that you wished to resume medical studies at this University you would have to apply for admission. 

…

There is a minor possibility that a small number of standard places (not MRBSS places) may become available in the near future.  While the availability of these places cannot in any way be guaranteed, if you wish to be considered for a standard place if one should become available, please indicate this on your acceptance advice form.

15.     On 8 February 2001, Mr Edwards signed a form accepting “the firm/provisional offer of a MRBSS place in the University of Sydney Medical Program commencing in 2000”.  On 7 March 2001, he executed a contract with the Commonwealth accepting an MRBSS scholarship.

16.     Mr Edwards was enrolled as a full-time student at the University of Sydney, studying towards the degrees of Bachelor of Medicine and Bachelor of Surgery (MBBS) throughout 2001 and 2002. In 2003, he deferred his studies. On 24 February 2004, he signed a deed with the Commonwealth stating that he had withdrawn from the MRBSS.

17.     Mr Edwards sought to continue his studies at the University in a “standard-entry place” — a term used by the University (and disputed by Mr Edwards) to describe a place held by a student who was not in receipt of an MRBSS scholarship. The University, apparently on the advice of the Department,advised Mr Edwards that as he had relinquished his scholarship, he was ineligible to continue his studies in a “standard-entry place” and moved to terminate his enrolment. Mr Edwards challenged that decision in the Supreme Court of NSW. Settlement was reached.

18.     Mr Edwards contends that at all material times, he was enrolled in degrees of Bachelor of Medicine and Bachelor of Surgery at the University and asserts, among other things, that:

·the terms “MRBSS place” or “rural quota place” are misnomers and simply “accounting terms” used to describe “Higher Education Contribution Scheme (HECS) places with work restrictions”;

·at all relevant times he held a “standard-entry place” in the Faculty of Medicine at the University of Sydney; and

·his place was fully funded by the Department of Education, Training and Youth Affairs (DETYA), not the respondent Department.

CAN THE POWER TO AMEND BE EXERCISED?

19.     There is no issue that each of the documents the subject of the remittal decision (the subject documents) is a document of the Department to which access has been lawfully provided to Mr Edwards.  In respect of each document, I must decide whether the part or parts identified in the consent determination made on 28 June 2011 (which for convenience I will refer to as the “offending information”):

·Contain personal information about Mr Edwards; and

·If so, whether that information is incomplete, incorrect, out of date or misleading, within the meaning of s 50(1)(b) of the FOI Act; and

·If so, whether the power to amend the document should be exercised.

Document 1: Letter dated 5 May 2004

20.     Document 1 is a letter dated 5 May 2004, from the Dean of the University’s Faculty of Medicine, in reply to a letter from the First Assistant Secretary of the Department, about the “withdrawal of Mr Edwards from the Medical Rural Bonded Scholarship Scheme”. Unless otherwise indicated, it has been agreed, and I accept, that the offending information contains personal information about Mr Edwards.

21.     Before considering Mr Edwards’s submissions, it is useful to set out the evidence given by Mr Thomas Ruben, the Executive Officer of the University’s Faculty of Medicine since 1984. Mr Ruben gave evidence about the Faculty’s Graduate admission procedures which, on his account, have remained largely unchanged since 2000. 

22.     Mr Ruben explained that a person seeking to study medicine at the University was required to lodge an application with ACER. The application form required that the applicant nominate three universities in order of preference. Where a person nominated the University of Sydney as their first preference, achieved a sufficient GAMSAT score, and met the Faculty’s academic requirements, they were made an offer of interview by the University. Where an applicant did not meet the University’s requirements, their application was passed on to their next nominated university. If the offer of interview was accepted, the applicant was interviewed by a panel nominated by the Faculty of Medicine (the Faculty) and awarded a score based on their performance at interview.  All interviewed applicants were then ranked by the University on the basis of their interview score. Applicants who achieved higher scores were ranked above those with lower scores. 

23.     According to Mr Ruben, after this process was completed, the Faculty made a first round of offers to the highest ranked applicants. A further round of offers was made, depending on the number of offers accepted, again on the basis of ranking. This process continued until all available places were accepted.

24.     According to Mr Ruben, in 2000, first round applicants were given the choice of either a standard-entry or MRBSS place. He recalled that the University had difficulty filling its 25 allocated MRBSS places in the 2001 academic year because the Scheme was then in its infancy and not widely understood. According to Mr Ruben, when all standard places were filled, the remaining applicants were made an offer of an MRBSS place. He recalled that the first round of offers was made shortly after interviews were conducted in October 2000. He could not recall when all “standard places” were exhausted but he thought the making of an offer to Mr Edwards in February 2001 of an MRBSS place indicated that by that time all standard places had been filled.

25.     Tendered in these proceedings is a letter, from the Dean of the Faculty of Medicine dated 18 October 2000, outlining the procedures employed by the University in 2000 in offering places in the Graduate Medical Program. It broadly accords with Mr Ruben’s recollection as set out above, except that it states that the first round of offers of places would be confined to standard-entry places and MRBSS places would be offered soon after the “6 November 2000 deadline”.

26. Included in the documents lodged with the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) is a copy of the “Admissions – Offers” form (T5, page 13) used by the University’s admissions office in processing Mr Edwards’s admission. It records Mr Edwards’s name and other personal details, year of application and year of enrolment. It states that Mr Edwards had a Global Panel Score of 4. A number of check boxes are listed on the form. A cross appears next to the boxes: “MBBS Firm offer” and “1st Round Offer”. Under the heading “comments” is written :

NB: Not eligible for CDP  – Bachelor’s degree not a research degree.

Offered firm MRBSS offer only in reserves list round – 01/02/01.

accepted MRBSS offer – 8/02/01

27.     Prior to the hearing, in response to a request for information made by the respondent’s solicitor, Mr Ruben wrote:

2. A requisite global score of 1 or 2 was necessary for a standard place, for the relevant period

A score of 1, 2 or 3 was necessary in order for an applicant to be offered a standard place (1 being the highest possible score and 5 being “unsatisfactory”).

3. Mr Edward’s global score

Mr Edwards’ global score was 4.

28.     Mr Edwards contends that the following parts of Document 1 are incomplete, incorrect, out of date or misleading:

Paragraph 1 of Document 1

29.Paragraph 1 reads:

Mr Edwards applied for admission in 2000 to commence studies in the University of Sydney Medical program in 2001.

30.     Mr Edwards contends that this information is incomplete, incorrect, out of date or misleading because he applied to ACER, not the University of Sydney, to study medicine.

31.     The letter does not purport to record the entire history of Mr Edwards’s journey through the admission process. While this paragraph makes no reference to Mr Edwards’s initial application to ACER, that omission in my opinion could not be characterised as a mandatory detail in the sense discussed in Jacobs (at 649). Nor could it reasonably be argued that the information is incorrect or misleading because, for all practical purposes, by listing the University of Sydney as his first preference on his ACER application form, Mr Edwards had applied to commence studies in the University of Sydney’s Medical program.  

Paragraph 2 of Document 1

32.Paragraph 2 reads:

Mr Edwards was not ranked highly enough to be offered a standard HECS place.  Consequently, he was offered a Medical Rural Bonded Scholarship Place (MRBSS) as his only route into the Medical Program.  He accepted that place.

33.     Mr Edwards asserts that each sentence in the above paragraph is incomplete, incorrect, out of date or misleading. I will address each sentence in turn.

34.     Mr Edwards contends that the first sentence, “[he] was not ranked highly enough to be offered a standard HECS place”, is incorrect because, on his account, he was ranked highly enough to be offered a standard place. In support, he relies on the the cross next to the box “1st Round Offer” on the completed admission form and the reference in his letter of offer that a standard place may become available. He submits that it is telling that Mr Ruben marked the “1^st round Offer” box when asked in evidence to mark a blank admission form in respect of a hypothetical applicant whose ranking entitled them to a first round offer.

35.     Mr Edwards’s letter of offer clearly stated that he was offered an MRBSS place. He signed a form accepting that offer. He wrote on that form that he wished to be considered for a standard place “if it became available”.  There is no evidence and nor is it suggested that after signing the acceptance form the University made a further offer of “a place” to Mr Edwards.

36.     The evidence makes clear that the University in its first round of offers, made offers of standard places (or as Mr Ruben recalls, the choice of a standard or MRBSS place) and once all standard places had been accepted, remaining applicants were either made no offer or offered an MRBSS place. Mr Edwards’s receipt of an MRBSS place five months after the first round of offers was made is entirely consistent with Mr Ruben’s evidence that a global score of four was insufficient to be offered a standard place. 

37.     As Mr Edwards correctly points out, there is a discrepancy on the face of the admission form. I cannot agree with his assertion that this discrepancy indicates that he was ranked highly enough for a standard place.  The form taken as a whole, together with the evidence about the timing of the offer made to Mr Edwards, leads me to conclude that the most plausible explanation for the entry next to the “1st Round Offer” box is administrative error. The weight of evidence is that Mr Edwards was not ranked highly enough to be offered a standard place.

38.     In relation to the first phrase of the second sentence, “Consequently, he was offered a Medical Rural Bonded Scholarship Place (MRBSS)…”, Mr Edwards contends that he was not offered an MRBSS place. In submissions made in these proceedings, he stated that there is no basis for the distinction drawn by the University between a “standard” and “Medical Rural Bonded Scholarship” place and it is pertinent that at all relevant times he was eligible to enrol as a candidate for the degrees of Bachelor of Medicine and Bachelor of Surgery. In support, he also points to the absence of any reference to the terms “standard HECS” or “medical rural bonded place” in the Higher Education Funding Act 1998 (Cth). He argues that, while he was “offered something” described as a “medical rural bonded scholarship place”, as it did not exist it could not be said to have been offered.  

39.     Mr Edwards’s assertion that in 2000 there were no MRBSS places is entirely unsupported and inconsistent with the evidence.  That all students irrespective of the place they held were eligible to receive the same academic qualification on completion of their studies does not, as Mr Edwards contends, negate that some were recipients of a rural bonded scholarship and others were not.

40.     The incontrovertible evidence is that in 2000 the Commonwealth established the MRBSS; the University of Sydney participated in that Scheme; and in February 2001 Mr Edwards was offered and accepted an MRBSS place to commence in the 2001 academic year.

41.     In relation to the second phrase of the second sentence, “… as his only route into the Medical Program”, Mr Edwards contends that it is incomplete, incorrect, out of date or misleading because the University of Sydney was not his “only route into the Medical Program”. He points out that the University of Sydney was only one of three universities, albeit the first, nominated on his ACER application form as his preferred place of study. He argues that the phrase “only route into the Medical Program” is misleading because it “gives only half the story”. He believes that this defect would be cured if the offending information was amended to read:

His route was an option of three universities, but once the offer was made by the University of Sydney he was locked out from other universities.

42.     Mr Ruben’s evidence broadly accords with Mr Edwards’s understanding, namely that once a person accepted an offer of interview from a participating ACER university it was not open to them to apply to another participating university during that placement round.

43.     Read in context, it is apparent that the phrase “his only route into the Medical Program” is a reference to the University of Sydney’s medical program.  The offending passage is entirely consistent with the evidence given by Mr Ruben and the material before the Tribunal. In my view, it cannot reasonably be argued that — because the letter does not mention all the options available to Mr Edwards prior to his recipt of an offer of an interview from the University of Sydney — it is incomplete or inaccurate.

44.     In relation to the third sentence, “He accepted that place”, Mr Edwards contends that this information is inaccurate because there was “no such [MRBSS] place to accept”. He draws an analogy between his situation and a person who contracts to purchase a ten tonne truck but later discovers that the truck they purchased was five tonnes.

45.     As stated, I do not accept the proposition central to this argument that MRBSS places did not exist. Nor do I accept Mr Edwards’s claim that he did not accept an offer of an MRBSS place. On 8 February 2001, Mr Edwards signed an “acceptance advice form – MRBSS place” which included the following acknowledgement:

I accept the firm/provisional offer of a MRBSS place in the University of Sydney medical program commencing in 2000.

46.     On 7 March 2001 he went on to execute a contract with the Commonwealth accepting an MRBSS contract.

Summary — Paragraph 2 of Document 1

47.     I am not persuaded that any of the sentences in paragraph 2, or the paragraph read as a whole, contain personal information that is incomplete, incorrect, out of date or misleading.

Paragraphs 3, 4 and 5 of Document 1

48.     Paragraphs 3, 4 and 5 each contain quotes from other documents. There is no issue that the quoted material in each paragraph is an accurate record of the source document or that the quote has been accurately attributed. Mr Edwards’s argument is that the information recorded in the original document is incomplete, incorrect, out of date or misleading. Even if correct, this does not render the relevant quotation incomplete, incorrect, out of date or misleading.

Final Paragraph of Document 1

49.The final paragraph reads:

Mr E’s enrolment as a student of the University of Sydney was cancelled on 22 April 2004.

50.     It is not entirely clear from Mr Edwards’s submission whether he now asserts that that information is incomplete, incorrect, out of date or misleading. As the respondent correctly points out, the decision by the University to cancel Mr Edwards’s enrolment was the trigger for his decision to initiate proceedings in various jurisdictions to have that decision reversed.  Whether the decision to cancel Mr Edwards’s contract was properly made is irrelevant to the assessment of whether the offending information is incomplete, incorrect, out of date or misleading. See for example, Re Strange and Civil Aviation Safety Authority (2002) 68 ALD 751 at 756; Re Wiseman and Department of Communications and Department of Transport (1984) 12 ALD 707 at [9].

Opening sentence of Document 1

51.The opening sentence reads:

“I am writing in response to for [sic] your letter of 3 March 2004 regarding the withdrawal of Mr Thomas Edwards from the Medical Rural Bonded Scholarship Scheme.”

52.     Mr Edwards asserts that it is inaccurate and misleading that he “withdrew” from the Scheme. This issue is addressed at par [62]–[70] of these Reasons.

Attachment to Document 1 - Acceptance Advice Form

53.     Attached to Document 1 is a document headed “Acceptance Advice Form: Medical Rural bonded Scholarship Scheme (MRBSS) Place” signed by Mr Edwards and dated 8 February 2001. It provides:

I accept the firm/provisional offer of a MRBSS place in the University of Sydney Medical Program commencing in 2000. In accepting this offer, I understand that I will be allocated to the Canberra Clinical School for the two full-time Clinical School Blocks in Years 1 and 2 of the program, and for the full-time Clinical School placements in Years 3 and 4.

I certify that I have lodged with the Commonwealth of Australia a contract for a Medical Rural Bonded Scholarship duly signed by me and witnessed.

I acknowledge that this offer of a MRBSS place will automatically lapse if the Commonwealth of Australia declines for any reason to enter into a Contract for a Medical Rural Bonded Scholarship with me.

I acknowledge that withdrawal from the MRBSS at any time prior to completion of the University of Sydney Medical Program will mean that my MRBSS place will be terminated and my enrolment in the University of Sydney Medical Program will be cancelled.

I understand that my standard place will not be relinquished until the Commonwealth of Australia advises the University of Sydney that the Commonwealth and I have entered into a Contract for a Medical Rural Bonded Scholarship.

[I understand that if my Bachelor’s degree results do not meet the minimum Faculty standard before enrolment in 2001, this provisional offer will lapse]

54.     While there is no argument that the acceptance form is a standard pro-forma document Mr Edwards contends that because it is “littered” with references to the personal pronoun “I” and bears his signature, the entire document constitutes “personal information”.

55. The power to amend a document of an Agency conferred by s 50 of the FOI Act is confined to documents that contain “personal information” about the person who made an application under s 48 of the FOI Act. It is the record of that information which may be amended providing the elements of s 50(1) are satisfied.

56.     In my opinion, the only part of the acceptance form that constitutes personal information about Mr Edwards is his name which appears in the recitals section, his signature and the handwritten notation made by him — none of which is incomplete, incorrect, out of date or misleading.While the form relates to Mr Edwards insofar as it was issued to and signed by him, this does not make it a record of personal information about him. I do not accept that the use of the pronoun “I” transforms the balance of the information on the form into “personal information about Mr Edwards”.  Given this finding, it is unnecessary to consider whether the offending material is incomplete, incorrect, out of date or misleading.

Document 2: Clause E to the contract entered into on 7 march 2001

57.     Document 2 is the first page of a blank standard contract between recipients of MRBSS scholarships and the Commonwealth.  For present purposes, I will assume that the document the subject of Mr Edwards’s application is the executed version of that contract. Mr Edwards contends that clause E contains personal information which is incomplete, incorrect, out of date or misleading. Clause E states:

As scholarships are tied to the university places made available under the program any cancellation of the scholarship will involve a withdrawal of funding for the university place under the Scheme so that You may be unable to continue the course.

58.     Clause E is a standard clause contained in a pro-forma document. It does not contain personal information about Mr Edwards and, therefore, it is unnecessary to consider whether it is incomplete, incorrect, out of date or misleading.

Document 3

59.     Document 3 is an undated document in the form of a chronology setting out the history after Mr Edwards left the University. Mr Edwards seeks amendment of two underlined parts of that document. The first part reads:

Mr Edwards was aware that withdrawal from the MRBSS also constituted a withdrawal of funding from the linked medical school place through his MRBSS Contract

60.     For present purposes, I will consider the sentence in its entirety and not just the underlined portion. Read as a whole, the sentence constitutes personal information about Mr Edwards — it is information about Mr Edwards’s state of mind or “awareness”.

61.     Mr Edwards contends that the information is incorrect because he neither “withdrew from the MRBSS”, nor was aware that there was a link between his continuation in the MRBSS and withdrawal of funding from the University.

Withdrawal from the scheme?

62.     Mr Edwards contends that he did not withdraw from the Scheme because it did not exist. In the alternative, he contends that he did not “withdraw” from the Scheme but rather “cancelled/finalised/opted out of a contract with the Commonwealth”.

63.     The distinction drawn by Mr Edwards between “withdrawal from the MRBSS scheme” and the “cancellation/finalisation/opted out” of a contract with the Commonwealth is one he believes to be of some significance, but one I believe to be a distinction without a difference. In any event, as the history to his “departure”, to use a neutral term, makes plain, he signed a number of documents stating that he had withdrawn from the Scheme.

Awareness of consequences of withdrawal?

64.     Mr Edwards initially submitted that he was told the “exact opposite” that is, that funding would be not withdrawn if he “withdrew” from the Scheme. Later, he admitted that he had been told that funding would be withdrawn, but rejected that information because he had concluded that it was “misleading and incorrect”. 

65.     The proposition that “Mr Edwards was aware …” etc. is a statement of the author’s opinion.  An opinion will be incomplete, incorrect, out of date or misleading if based on a mistake of fact. There is a wealth of evidence that Mr Edwards had been informed of the consequences of withdrawing from the MRBSS. He signed a contract that stated, “any cancellation of the scholarship will involve a withdrawal of funding for the university place under the Scheme so that You may be unable to continue the course”. He was given the same advice a month before he signed a deed of withdrawal.  That deed stated: “I understand that my withdrawal from the MRB Scholarship Scheme will involve withdrawal of funding for the University place under the Scholarship Scheme”.

66.     Mr Edwards has been unable to point to any evidence to support his contention that he was told the “exact opposite” and indeed admitted in submissions he was given that advice.

67.     It is irrelevant whether, as Mr Edwards claims, the Commonwealth did withdraw funding after he withdrew from the Scheme. What is relevant is whether he was aware of the Commonwealth’s stated intention of the consequences if he was to withdraw.

68.     The second part of Document 3 Mr Edwards seeks to have amended reads:

(ii) During this teleconference [6 May 2004] Departmental officers were advised that Mr Edwards was informed by the University, at the time of his acceptance into medical school that his place was an MRBSS medical school place and that, without the scholarship, he would not have been eligible to receive a medical school place at the University of Sydney.

69.     Mr Edwards contends that this information is incomplete, incorrect, out of date or misleading because he subsequently discovered that his place was “HECS funded”. Mr Edwards’s complaint is that the advice he was given was incomplete, incorrect, out of date or misleading. He does not dipuste that he was given that advice. By his own admission, the above is an accurate statement of what he told Departmental officers during the 6 May 2004 phone conversation.

70.     I am not satisfied that either sentence contains personal information that is incomplete, incorrect, out of date or misleading.

Documents 4, 5 (in part), 6 and 11

71.     The offending material contained in these documents is materially identical to the first extract of the offending material contained in Document 3 and discussed above. The same analysis applies.

Document 5: K000012

72.     Document 5 is an extract from a chronology relating to Mr Edwards’s involvement with the MRBSS.  Mr Edwards seeks amendment of the underlined portions of the following two entries:

23/1/04

… He was advised that if he withdrew he might not be able to continue to study medicine, and that as the scholarship was linked to his medical school place, funding for his place at the university would be withdrawn (email)

…

27/1/04

TE advised UIS that he refuted that his enrolment place was linked to the scholarship …

73.     The same anayliss applies to the entry for 23 January 2004 as discussed at [62] to [67] above.

74.     In oral submissions, Mr Edwards conceded that the information in the entry for 27 January 2004 was correct. 

Documents 7 and 8: K000014 and K000015

75.     Documents 7 and 8 comprise a two page letter from the Director of the Department’s Undergraduate Initiatives Section to Mr Edwards dated 2 February 2004.  Mr Edwards seeks amendment of the underlined portions of the following paragraphs:

The University makes available and is funded to provide university places for students participating in the Scholarship Scheme. Cancellation of a Scholarship will therefore involve withdrawal of funding for the university place under the Scholarship Scheme. This is set out in Item E of the Recital to the contract. Consequently, your place at the University will not be guaranteed outside the Scholarship Scheme. It is up to the University to determine if they will provide a university place for you to continue your studies.

…

Information on the link between the MRB Scholarship Scheme and the funding of university places is also provided on the Medical Rural Bonded Scholarship Scheme website. Furthermore, the covering letter to you dated 7 March 2001 enclosing a signed copy of the contract states:

“Please note that the place you have accepted in medical school is directly linked to the MRB Scholarship and is funded under the MRB Scholarship Scheme. It is expected that you would therefore not be able to continue in your medical course should you choose to withdraw from the MRB Scholarship Scheme at sometime in the future.”

…

76.     The offending material is merely a statement of the Director’s understanding of the operation of the Scheme and does not constitute personal information about Mr Edwards. Even if accepted that the third extract beginning “Please note …” constitutes personal information about Mr Edwards, as it is an accurate quote from the letter of 7 March 2001, it could not be said to be incomplete, incorrect, out of date or misleading.

Document 9: K000016

77.     This document is the unsigned draft deed of termination attached to the letter from the Director to Mr Edwards discussed above. Mr Edwards seeks amendment of the following paragraph:

I understand that my withdrawal from the MRB Scholarship Scheme will involve withdrawal of funding for the university place under the Scholarship Scheme and I will no longer be able to continue to study medicine in that medical school place.

78.     Mr Edwards contends that the information “potentially” constitutes personal information because of the use of the personal pronoun “I”. He argues that, in addition to being inaccurate and misleading, the information is out of date because after researching the matter he concluded that it was incorrect. 

79.     The underlined part of this sentence does not constitute personal information about Mr Edwards. I doubt that the whole sentence could be said to constitute personal information. In any event, I do not accept that it could be said to be incomplete, incorrect, out of date or misleading.  It is reasonable to infer that by signing the deed Mr Edwards understood the consequences of which he had been notified if he was to withdraw from the Scheme. Whether the Commonwealth ultimately withdrew funding or, as Mr Edwards now contends, it would have been unlawful for the Commonwealth to do so, does not render the information he was given incomplete, incorrect, out of date or misleading.

Document 10: K000017

80.     This document is the executed version of the draft deed referred to above. There are some differences between the two versions. However, the offending paragraphs are identical. The above analysis applies.

Summary

81. I am satisfied that the pre-conditions to the exercise of the power to amend any or all of the subject documents set out in s 50 of the FOI Act are not satisfied. Therefore that power cannot be exercised and the respondent’s decision must be affirmed.

Annotation of records

82. Given my decision that the power to amend any of the subject documents cannot be exercised, Mr Edwards’s application for amendment is required to be treated as an application for an annotation: s 51 of the FOI Act (see also Re Neeson v Chief Executive Officer of Centrelink (2006) 154 FCR 489 at 498).

83.     The respondent has provided Mr Edwards with a a form of words for the proposed annotation. He has not indicated whether he accepts that proposal.

84. I have decided to remit the decision to annotate the subject documents to the respondent for determination under s 43(1)(c)(ii) of the AAT Act.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ......................................[sgd]...................................
  Associate to Senior Member A K Britton

Date/s of Hearing  12 August 2011
Date of Decision:  14 September 2011
Applicant Self-Represented
Counsel for the Respondent:    Mr J Davidson
Solicitor for the Respondent:     Ms K Robbins, Department of Health and Ageing