Francis and Department of Veterans' Affairs (Freedom of information)

This matter concerned an application by Mr Francis to amend a record of opinion, specifically Form AF Med 1, held by the Department of Veterans' Affairs. Mr Francis contended that the form contained personal information that was incorrect, incomplete, out of date, or misleading, relating to his spinal injury sustained in 1968. The Administrative Appeals Tribunal (AAT) was required to determine whether the form constituted a record of opinion, and if so, whether that opinion was based on a mistake of fact, or affected by bias, lack of qualification, or improper conduct by the author. Alternatively, the Tribunal had to consider if the information within the form was factually incorrect, incomplete, out of date, or misleading.

The Tribunal, presided over by Deputy Britten-Jones P, adopted and affirmed previous findings from earlier decisions in *Francis* [2004]. The central legal issue was whether the medical officer's assessment on Form AF Med 1, which classified certain aspects of Mr Francis's health as "normal" or "Category A" in 1972, was based on a mistake of fact or otherwise flawed. The Tribunal considered the applicant's assertion that the "normal" classifications should have been "abnormal" due to his subsequent diagnosis of disabling symptoms and the later award of a disability pension by the AAT in 1993.

The Tribunal reasoned that the Form AF Med 1 was indeed a record of opinion. However, it found that the opinion formed by Dr Clarke in 1972 was not based on a mistake of fact. The Tribunal accepted that Dr Clarke was assessing functional normality rather than anatomical normality, and that there was a sound basis for his opinion that Mr Francis's back was functionally normal at the time of the examination, despite a history of spinal injury. Furthermore, the Tribunal found that Dr Clarke's decision not to conduct a full mental state examination, and his endorsement of "NE" (not examined) for emotional stability and mental capacity, was an appropriate professional opinion given Mr Francis's history. The Tribunal also concluded that the subsequent AAT decision in 1993 to award a disability pension did not retroactively render the 1972 form inaccurate, as the pension was awarded by consent and did not make findings relevant to Mr Francis's functional capacity at the time of his discharge.

Ultimately, the Tribunal affirmed the decision under review. While the Tribunal found no grounds to amend the record itself, it directed the Registrar to annotate the decision to reflect Mr Francis's contention regarding the inaccuracy of the form concerning the effect of his spinal injury and the resulting functional abnormalities. The Tribunal also indicated an openness to negotiation regarding the precise wording of this annotation.