Ferns v New South Wales Department of Corrective Services
[2007] NSWADT 296
•14 December 2007
CITATION: Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Helen Ferns on behalf of Craig Ferns
New South Wales Department of Corrective ServicesFILE NUMBER: 073113, 073114 HEARING DATES: 5 July 2007 SUBMISSIONS CLOSED: 3 August 2007
DATE OF DECISION:
14 December 2007BEFORE: Higgins S - Judicial Member CATCHWORDS: Amendment of documents MATTER FOR DECISION: Principal matter LEGISLATION CITED: Freedom of Information Act 1989
Privacy and Personal Information Protection Act 1998CASES CITED: Bennett v University of New England (unreported, NSW Dist Ct, Dunford J, 7 August 1991)
C v NSW Treasury (No 3) [2004] NSWADT AP 6 at [100] – [103]
Chand v NSW Police [2007] NSWADT 131Coburn v NSW Police [2003] NSWADT 2
Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606
Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [32]
Hayward-Brown v Wentworth Area Health Service [2000] NSWADT 46 at [38]
Re Griffith and Queensland Police Service (1997) 4 QAR 109
Re Stewart and Department of Transport (1993) 1 QAR 227
S v Department of Community Services [2000] NSWADT 24 at [59]
Waite v Department of Local Government [2004] NSWADT 11 at [34]
Young v Wicks (1986) 13 FCR 85; 79 ALR 448REPRESENTATION: R Reitano, barrister
T Anderson, barristerORDERS: 1.The decision of the Department in regard to the email that is the subject of File number 073113 is set aside and in substitution there of a decision to amend that email with a notation along the lines set out in paragraph 26 of these reasons for decision; 2.The decision of the Department in regard to the documents that are the subject of File number 073114 is affirmed.
REASONS FOR DECISION
Introduction
1 Mrs Ferns, as agent for her son, Mr Craig Ferns, has made two applications seeking review of a decision of the NSW Department of Corrective Services (‘the Department’) to refuse her request for amendment to 6 documents concerning Mr Ferns and which were provided pursuant to FOI request under the Freedom of Information Act 1989 (‘the FOI Act’). As these applications are in effect those of Mr Ferns these reasons for decision are couched in terms of the application and submissions having been made by Mr Ferns and not Mrs Ferns.
2 Section 39 of the FOI Act gives every person a right to apply for amendment of an agency’s records where that record concerns the person’s personal affairs and that record is incomplete, incorrect, out of date or misleading. That section relevantly provides as follows:
3 Section 44 of the FOI Act sets out the circumstances in which an agency may refuse to amend its records in accordance with the application. Included in these are where the agency is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material particular.
39 Right to apply for amendment to agencies’ record
A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:
(a) if the document contains information concerning the person’s personal affairs, and
(b) if the information is available for use by the agency in connection with its administrative functions, and
(c) if the information is, in a person’s opinion, incomplete, incorrect, out of date or misleading.
4 There is no dispute that each of the documents contained information that is available for use by the Department in its administrative functions. What is disputed is whether the information concerned Mr Fern’s personal affairs and whether the information was incomplete, incorrect or misleading.
Background to the applications
5 The first application, which is File number 073113, relates to the Department’s refusal to amend an email, dated 20 May 2004, by Commander Donald Rogers to Mr Brett Kent, solicitor, through Joy Midgley. This e-mail was sent in response to an e-mail Commander Rogers had received from Mr Kent on 14 May 2004 in regard to a review that Mr Kent was conducting under section 53 of the Privacy and Personal Information Protection Act 1998. The e-mail from Mr Kent contained two lists of ten questions numbered (a) to (j) to which Commander Rogers was asked to provide answers on the basis of his “present knowledge”. The first list of questions concerned a document that Commander Rogers had signed on 22 August 2003 and the second list of questions concerned minutes of a meeting, attended by the Commander, and dated 27 August 2003. The questions in each list were exactly the same.
6 Mr Ferns sought 5 amendments to the email and that a notation be added to the email. Mr Ferns provided material to support his application for amendment. On 21 November 2006, Acting Commissioner Luke Grant determined to refuse the application for amendment on the grounds that Mr Ferns had failed to show that the content of the email had incorrectly recorded Commander Roger’s responses to the questions that he had been asked to respond to. That is, Mr Ferns had not demonstrated that the email was an inaccurate transcript of Commander Roger’s responses. Acting Commissioner Grant went on to say that the fact that Mr Ferns believed that the responses were in themselves incorrect was not a matter that Mr Ferns could seek amendment of under section 39 of the FOI Act.
7 The remaining five documents for which Mr Ferns sought amendment were all the subject of File number 073114. These were as follows:
8 Each of these documents related to conduct of particular correctional officers, including Mr Ferns, within the Drug Detector Dog Unit of the Security and Investigation Branch of the Department. The conduct in question related to alleged inappropriate behaviour by these officers towards other officers within the Unit in the course of their employment generally.
(a) report from Senior Assistant Superintendent Wayne Creighton to Acting Superintendent Stewart James, dated 7 August 2002;
(b) report from Senior Assistant Superintendent Wayne Creighton to Acting Superintendent Stewart James, dated 29 August 2002;
(c) report authored by Acting Superintendent Stewart James dated 29 August 2003, with the heading “DDU Matters only”;
(d) letter from Acting Superintendent Stewart James to Craig Ferns, dated 29 August 2004;
(e) document headed “DDU Matters” authored by Senior Assistant Superintendent Wayne Creighton and co-signed by Commander Ken Middlebrook, dated 4 September 2002.
9 In regard to these documents Mr Ferns also provided material, which he argued established that the matters for which he sought amendment were incorrect and misleading. On 7 January 2007, Acting Assistant Commissioner Mark Wilson determined to refuse Mr Ferns application for amendment on the grounds that the information for which amendment was sought were opinions of the authors of the respective documents and Mr Ferns had not provided any material to indicate that these were not opinions that were not genuinely held. Following an internal review request, on 22 February 2007, Assistant Commissioner Peter Peters confirmed the original decision on the same grounds. At the hearing the Department also argued that the information for which Mr Ferns sought amendment did not relate to his ‘personal affairs’.
Applicable legal principles
10 The legal principles in regard to the amendment of an agency’s records have been considered by the tribunal on many occasions and it is convenient to set out those that are relevant to these applications.
a) Information concerning the ‘personal affairs’ of the FOI applicant
11 The term ‘personal affairs’ is not defined in the FOI Act, but it has long been accepted that it should be given its ordinary meaning. In Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606 (Perrin’s case), Kirby P held that the words ‘personal affairs’ in the context of the FOI Act meant “the composite collection of activities personal to the individual concerned”. In Young v Wicks (1986) 13 FCR 85; 79 ALR 448, Beaumont J said that the term ‘personal affairs’ referred to matters of private concern to a person.
12 In Perrin’s case Kirby P drew a distinction between information concerning the duties of a public servant and information relating to the public servant’s personal affairs. In that case the question was whether the disclosure of the names of the police officers who had prepared a report in the course of their duties as police officers was a disclosure of their ‘personal affairs’. The Court held it was not. That is, their names on the documents in question were included in the context of this information forming part of their public duties and the discharge of them: see per Mahoney JA, at 638.
13 Where the information concerns wrongdoing of an employee of an agency in the course of employment with that agency may or may not be regard as an incident of ‘personal affairs’: see Re Stewart and Department of Transport (1993) 1 QAR 227 at [99] – [102]. It will depend on the nature of the information. For example, where the information concerns a police officer and his alleged excessive use of his powers of arrest, which gave rise to disciplinary action has been held not to relate to that officers personal affairs but relate to that persons employment affairs: see Re Griffith and Queensland Police Service (1997) 4 QAR 109 at [50] and [51]. However, in Griffith (supra) at [52] the Queensland Information Commissioner distinguished information concerning the conduct of an employee in the course of performing his/her employment duties and conduct within the workplace generally such as harassment. The latter conduct the Information Commissioner said was personal in nature and therefore related to that person’s personal affairs.
b) Incorrect and misleading information and onus of proof
14 In Bennett v University of New England (unreported, NSW District Court, Dunford J, 7 August 1991) Dunford DCJ said in regard to section 39 of the FOI Act that:
15 The Tribunal has accepted that section 39 of the FOI Act includes amendment of factual matters: see Waite v Department of Local Government [2004] NSWADT 11 at [34]. It is not disputed that an applicant has an initial onus in providing sufficient material to show that information he/she seeks to have amended is incorrect or misleading etc. and having discharged that onus the onus is on the agency pursuant to section 61 of the FOI Act that its determination, refusing to amend records, was justified: see Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [32] and Hayward-Brown v Wentworth Area Health Service [2000] NSWADT 46 at [38].
‘… “incorrect” included anything that is not in accordance with fact or is erroneous or inaccurate, and that “misleading” includes leaving the wrong impression. … ”
16 In Crewdson (supra) at [24] the Court of Appeal found that the FOI Act was concerned with the accuracy of official records and not with the merits or legality of official action recorded therein and did not provide a vehicle for collateral review of the merits of that action. At [19] and [34] the Court of Appeal held that section 39 of the FOI Act was not a vehicle for the determination of disputed questions of opinion which were honestly held and accurately recorded. Yet there is authority that section 39 of the FOI Act includes amendment of opinion, when the underlying facts on which the opinion is based has been discredited: see S v Department of Community Services [2000] NSWADT 24. However, where the opinion is that of an expert special considerations apply: see C v NSW Treasury (No 3) [2004] NSWADT AP 6 at [100] – [103]. That is not the case in these applications.
17 In a recent decision, Acting Deputy President Handley in Chand v NSW Police [2007] NSWADT 131, considered a decision of the NSW Police to refuse to amend a COPS records relating to the applicant, Chand. These COPS records commenced with a warning to the effect that Chand ‘may have a psychiatric illness’ and there were a further 14 entries in the COPS records noting that Chan suffered from a mental illness, but these were followed by a report that Chad did not appear to have a mental health problem and directing police to disregard the earlier notations. In that decision the tribunal upheld the decision of the NSW Police to refuse to amend the COPS entries which reflected the opinion of police officers who had made the entries, based on their reasonable assessment of the situation at the time as this would constitute a “re-writing of history”.
c) Form of amendment
18 The FOI Act does not specify what form an amendment is to take where the information sought to be amended satisfies the requirements of section 39 of the FOI Act. In Crewdson (supra) at [35] the Court of Appeal held that where an expert whose opinion had been accurately recorded in an agency’s documents and that expert later recognised that his/her opinion was incorrect at the time and withdrew it, then the proper course would be to add a notation that the opinion had been withdrawn rather than to remove the original opinion. The Court of Appeal went on to say that a deletion of the original opinion would falsify the record and attest to rewrite history.
19 In Bennett (supra) Dunford J. ordered the University of New England to delete a hand-written notation which appeared on a letter. The Tribunal has adopted an approach of deletion as well as notation depending on the circumstances and in the context in which the information for which amendment has been sought: see Waite (supra); S v Department of Community Services [2000] NSWADT 24 at [59] and Coburn v NSW Police [2003] NSWADT 2.
Consideration
a) File Number 073113
20 Mr Ferns has sought 6 amendments to the e-mail from Commander Rogers, dated 20 May 2004. Each amendment also involves a notation.
21 In the email Commander Rogers provided a short response to the questions he was asked. It was a single response to both lists of questions. In respect to five questions he responded, “N/A”. He also answered the last question by stating “Non available” and he then set out a short commentary in respect to the questions he had been asked. As mentioned above, the response was given in the context of Commander Rogers ‘present knowledge’ in regard to documents that had been created some eight months previously. He was expressly told by Mr Kent not to undertake any investigations in regard to the questions asked. Accordingly, the email having been created in the course of his duties recorded Commander Rogers’ recollection of events and his opinion in regard thereto.
22 Mr Ferns has asserted that the responses given by Commander Rogers knowingly false and misleading and he supported his assertion by referring to earlier statements that had been made by Commander Rogers in earlier documents of the Commander and statements of the Commander in proceedings, involving Mr Ferns, before the Industrial Relations Commission, the Local Court and in other internal statements concerning Mr Ferns.
23 In my opinion, the essence of Mr Ferns’ assertion relate to allegations of improper conduct of Commander Rogers and do not relate to the question of whether the record as contained in the email is incorrect or misleading in the sense required by section 39 of the FOI Act. As indicated, the email is a correct record of Commander Rogers’ responses. The fact that one can point to contrary earlier statements by Commander Rogers does not make his responses, made at the time the email was created and as recorded in the email, incorrect or misleading in the relevant sense. They are statements of his recollections and even if made in bad faith, as asserted by Mr Ferns, this does not necessarily make them incorrect. As pointed out by the Court of Appeal in Crewdson (supra) the amendment provisions of the FOI Act are not a vehicle for examining the merits of administrative conduct, including conduct that is undertaken in bad faith. Such matters need to be dealt with in another forum.
24 The email does however, contain one matter which in my opinion is misleading and that matter relates to Commander Rogers’ comment about Mr Ferns involvement in an alleged assault, which he said was “a strong case” against Mr Ferns and another officer and which was dismissed due to an irregularity. He went on to say that he “wished to view the Magistrate’s comments to confirm my information that the matter was dismissed on procedural issues and not on the basis that the persons charged had been found not guilty”.
25 The Department has not disputed Mr Ferns’ assertion that, prior to Commander Rogers’ email, on 31 July 2003, the Local Court found Mr Ferns not guilty of the offence charged following a four day hearing where police witnesses gave evidence. In my opinion, the email does give the impression that there was no hearing in regard to the alleged assault or that the charge was defended and for this reason I find the information in regard to the proceedings against Mr Ferns for the alleged assault are misleading.
26 However, I do not agree with the amendments proposed by Mr Ferns in regard to this information. They go well beyond that of amending a record of an agency that is found to be incorrect or misleading. This is an example where deletion of the record in regard to this information would be ‘re-writing history’ as the record is a correct account of what Commander Rogers said at the time. The appropriate amendment, in my opinion, on the basis of the material provided by Mr Ferns would be to insert a notation on the email to the effect that ‘On 31 July 2003, following a 4 day defended hearing during which the prosecution called witnesses, the Local Court of NSW found Mr Ferns not guilty of the alleged assault referred to in this email’.
b) File Number 073114
27 As mentioned above, the decision the subject of review in this application concerns 5 documents for which Mr Ferns has sought amendment on the basis that they are incorrect, out of date and misleading. Furthermore he has sought numerous amendments of each document on the basis that specified assertions in the documents are incorrect as a matter of fact, or they are based on innuendo and rumour.
28 I have read each of the documents for which Mr Ferns has sought amendment and considered each of the requested amendments. Whether the information for which Mr Ferns seeks amendment concerns his ‘personal affairs’ is a difficult question. As observed by the Queensland Information Commissioner there is not always a clear distinction between information concerning conduct of a public sector employee which occurs in the course of performing his/her employment duties and conduct which occurs in the workplace but does not occur in the course of actually performing employment duties.
29 In this application, the documents, as submitted by Mr Ferns, are inter-related and the information contained therein concern conduct of Mr Ferns and other correctional officers in regard to their employment duties as well as their conduct in the work place. In some circumstances it may be arguable that the information in the documents, to the extent it refers to Mr Ferns directly or by implication, does concern the personal affairs of Mr Ferns. But in others the contrary argument may apply. In some cases the amendments sought do not relate to Mr Ferns, but other officers. These amendments are not amendments Mr Ferns can seek amendment of as they are not his personal affairs.
30 It is unnecessary for me to conclusively decide which information, for which amendment has been sought, concerns Mr Ferns’ personal affairs as, for the reasons set out below, I find that Mr Ferns has failed to meet the threshold test of demonstrating that the information, as recorded by the authors of the documents, are, in the relevant sense, incomplete, incorrect, out of date or misleading in a material particular.
31 Document 1 - Mr Ferns sought 9 amendments, with notations, to this 2 plus page report of Senior Assistant Superintendent Creighton (‘Creighton’) to his superior seeking assistance and action in reference to what he described as being inappropriate behaviour of a number of officers in the Drug Detector Dog Unit. Mr Ferns essentially took issue with numerous assertions in the report which he alleged were based on innuendo and rumour and not on fact. He also asserts that no wrongdoing was found to have occurred as evidenced in document 5. In essence Mr Ferns has questioned the partiality of Creighton when he prepared the report and the follow up letter which is document 2.
32 There is no dispute that this document was written by Creighton in the ordinary course of his duties and the inference to be drawn from this is that the information contained in the document was based on information he believed at the time to be correct and from which he had formed certain opinions as set out in that report. The material provided by Mr Ferns does not suggest otherwise. What the material does indicate is that Mr Ferns does not agree with the information contained therein. In some cases Mr Ferns asserts that information concerning officers, other than he, and recorded in the report did not happen or were not said. The fact that the allegations were subsequently found not to have been substantiated against Mr Ferns, does not make the information contained in the document in question incorrect in the relevant sense. In my opinion, each of the amendments sought are not a correction of the record as recorded by Creighton but an endeavour to “re-write history” or to place on this record his version of events. Whether there is any basis to Mr Ferns’ assertions against Creighton is not for the tribunal to determine. As explained in Crewdson (supra) and Chand (supra) this is not the purpose of section 39 of the FOI Act.
33 Document 2 - Mr Ferns has sought 6 amendments, with notations, to this 2 page letter of Creighton. This document was a letter from Creighton to his supervisor providing him with further information he had acquired following his report that is document 1. Again there is no dispute that this letter was written in the ordinary course of Creighton’s duties as an officer of the Department and the same inference as arises from document 1 applies.
34 The amendments sought by Mr Ferns are along the same lines as those he sought for document 1 and I make the same findings in regard thereto.
35 Document 3 - Mr Ferns has requested 3 amendments, with notations, to this document. This document is a one page minute or memorandum from Acting Superintendent James (‘James’). It refers to earlier papers submitted by Creighton and lists action that had been taken since 20 August 2002 in respect to ‘issues/concerns’ that staff had with certain officers. Once again there is no dispute that this letter was written in the ordinary course of James’ duties as an officer of the Department and the same inference as arises from document 1 applies.
36 The introductory paragraph to the amendments sought Mr Ferns explains that he is concerned about having been grouped together with another officer as being the officers whose conduct was the subject of concern. It is his contention that this was a deliberate grouping even though he had no involvement in the alleged improper conduct. His amendments were directed towards these concerns.
37 Once again I find that the amendments sought by Mr Ferns are an endeavour to “re-write history” or to place on this record his version of events.
38 Document 4 - Mr Ferns has sought 3 amendments, with notations, of this one plus page letter written to him by James. The letter sets out the allegations of improper conduct that were made against Ferns and requiring him to provide a written reply.
39 In his request for amendment to this document, Mr Ferns states that the document reveals the ‘oppressive administrative force implemented’ against him. The allegations to which he was requested to respond were non- specific and were of events that he had no knowledge of at the time. He further asserts that he was denied procedural fairness in that he was not given an opportunity to adequately respond to that which had been alleged against him. The amendments sought were to put on the record this issue and to explain his version of events.
40 For the reasons already stated, I find that the amendments in essence amount to a ‘re-writing of history’ and not an amendment that is allowable under section 39 of the FOI Act.
41 Document 5 - Mr Ferns has sought 5 amendments, with notations, to this 2 page document which is a report by Creighton in the form of a minute or memorandum. Again it is not disputed that this document was written in the ordinary course of Creighton’ duties as an officer of the Department and the same inference as arises from document 1 applies. The document records what Creighton had been advised by others in regard to allegations made against Mr Ferns and another officer and his opinions in regard thereto. Page 2 of the document set out a summary of what action had been taken in regard to investigating the allegations. It is noted that in regard to Mr Ferns he was permitted to continue his duties within the Drug Detector Dog Unit as the allegations against him had not been substantiated.
42 Once again the information for which Mr Ferns sought amendment and the amendments requested were an attempt to ‘re-writing of history’ and not, as with the other proposed amendments to document 1 to 4, a correction of what otherwise appears to be a correct record of Creighton’s recollection of events and his opinion in regard to those events at that time.
Conclusion
43 For the reasons set out above in [5] - [6] and [11] - [26], in my opinion the decision of the Department in regard to the email that is the subject of File number 073113 is not the correct decision and should be set aside and in substitution there of a decision that a notation be added to the document which includes a statement along the lines set out in [26] above.
44 For the reasons set out above in [7] - [19] and [27] - [42], in my opinion, the decision of the Department in regard to the documents that are the subject of File number 073114 is the correct and preferred decision and should be affirmed.
Orders
1. The decision of the Department in regard to the email that is the subject of File number 073113 is set aside and in substitution there of a decision to amend that email with a notation along the lines set out in paragraph 26 of these reasons for decision.
2. The decision of the Department in regard to the documents that are the subject of File number 073114 is affirmed.
7