GA v The University of Sydney

[2009] NSWADT 230

CITATION:	GA v The University of Sydney [2009] NSWADT 230
DIVISION:	General Division
PARTIES:	Applicant: GA Respondent: The University of Sydney
FILE NUMBER:	083137; 083211; 083336
HEARING DATES:	on the papers
SUBMISSIONS CLOSED:	14 March 2009
DATE OF DECISION:	7 September 2009
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Freedom of Information Act - Amendment of documents - Collateral attack - Privacy and Personal Information Protection Act - Privacy - information protection principle - accuracy - Collateral attack
LEGISLATION CITED:	Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	Bennett v University of New England, (Unreported 7 August 1991, Dist Ct, at p 14) Crewdson v Central Sydney AHS [2002] NSWCA 345 Department of Education and Training v GA (No.3) [2004] NSWADTAP 50 Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 Director General, Department of Community Services -v- S [2000] NSWADTAP 27 Hayward-Brown v CEO, Wentworth AHS [2000] NSWADT 46 KO' & 'KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 Morgan v Director- General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91 Re Jacobs and Dept of Defence (1988) 15 ALD 645 Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135 Re Page and Director-General of Social Security (1984) 6 ALN N171 Re Wiseman and Dept of Transport (1984) 12 ALD 707
REPRESENTATION:	Applicant Representative: In person Respondent Representative: S. Heesom, solicitor
ORDERS:	1. The decisions under review with respect to the two FOI applications are affirmed. 2. The Tribunal determines to take no action with respect to application to review conduct under s 15 of the Privacy and Personal Information Protection Act 1998

REASONS FOR DECISION

Background

1 In these reasons the names of private individuals, and other information which might identify them, have been anonymised so as to preserve the privacy of their personal affairs.

2 In 2000 GA applied for admission to the University’s Graduate Medical Program (GMP). Admission records (Exhibit 13) show that he was interviewed on 6 October 2001. After his interview the Dean of Medicine sent him a letter dated 18 October 2001 attaching an information brochure regarding 25 Medical Rural Bonded Scholarship Scheme (MRBBS) places, which the Commonwealth government was funding (Exhibit 14 and (E2 and E5)). These scholarships offered student an income of $20,000 tax fee a year during their studies in return for their agreement to work in a rural or remote area once qualified. Students accepting a scholarship were required to signs a contract with the Commonwealth.

3 That letter advised:

‘A total of 25 MRB Scholarship Scheme places is available in the USydMP/CDP commencing in February 2001. These places are funded by the Department of Health and Aged Care as tax-free scholarships of $20,000 p.a. per student, plus appropriate funding direct to the University of Sydney), and are additional to our normal quota of 182 places for HECS-eligible students (funded by the Commonwealth of Australia through the Department of Education, Training and Youth Affairs). The latter 182 places comprise what the Information Pack describes as Standard Entry places. Students accepting a MRB Scholarship Scheme place in the USydMP/CDP will be allocated to the Canberra Clinical School …, because the 25 places allocated to our medical program are specifically designated as "University of Sydney/ACT". MRB Scholarship Scheme students will also be required to pay the standard HECS expenses and other fees and expenses associated with the USydMP/CDP as detailed in our USydMP Prospectus..
…
Our first round of offers of places in late October will be confined to offers of Standard Entry places. Soon after the 6 November 2000 deadline for the return of the application forms, we will offer MRB Scholarship Scheme places to recipients of Standard Entry place offers who have ticked the first box in Question 1, in the same order of ranking as is used for making offers of places (i.e. based on interview rating, then CDP rating if applicable, then overall GAMSAT and if necessary, bachelor's degree performance), until all such places have been offered, or no further recipients of Standard Entry place offers have indicated that their first preference is to accept a MRB Scholarship Scheme place. Those offered MRB Scholarship Scheme places at this stage will have to confirm their acceptance of those places and return the signed contract that will form part of the offer. A deadline for this process remains to be decided, because we do not know when contracts will become available; you may be advised of the outcome of your request for consideration for a MRB Scholarship Scheme place before you are able to be provided with a contract. In any event, your Standard Entry place offer will not be revoked until you have accepted an MRB Scholarship Scheme place AND returned a signed contract, in accordance with the deadlines imposed.
Depending on the number of MRB Scholarship Scheme places accepted by the recipients of first round offer Standard Entry places, a number of Standard Entry places may then become available for subsequent offer rounds, to those applicants ranked in the normal manner for offers of Standard Entry places, but not highly enough for a first round offer. In addition, some MRB Scholarship Scheme places may be offered in subsequent rounds to those applicants who were not successful in gaining a first or subsequent round offer of a Standard Entry place but who have ticked the first box in Question 2. As for the first round offers, those becoming eligible for a later round offer of a Standard Entry place would have preference for an offer of a MRB Scholarship Scheme place if they have ticked the first box in Question 1.

4 GA was offered a firm MRBBS place as candidate for an MBBS degree. The University says this occurred in the reserve list round on 1 February 2001: he says he was made a first round offer. He accepted the offer. In his letter of offer to GA (Exhibit 16) the Dean advised, among other things, that:

'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 payment to you. Please note that the MRBSS places are additional to our normal Commonwealth-funded DETYA quota 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 in the University of Sydney Medical Program will be cancelled. In both instances, should you decide subsequently that you wished to resume medical studies at this University you would have to reapply for admission.'

5 In accepting this offer GA signed an acceptance form (Exhibit 17 and E6) which included the following acknowledgement.

`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 advised the University of Sydney that I have entered into a contract for a Medical Rural bonded Scholarship.

6 In hand writing he endorsed on that form the comment that:

‘I would be interested in the option of a standard place if it arose.’

7 GA executed a contract with the Commonwealth with respect to his scholarship (Exhibit 15). Clause E of the background to the contract provided:

‘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 this Scheme so that You may be unable to continue the course.’

8 GA was enrolled as a full time student in the MBBS degree in 2001 and 2002. He withdrew from his studies in 2003.

9 On 24 February 2004 GA signed a deed of termination with the Commonwealth withdrawing from the MRBBS and terminating his scholarship contract. The deed contained the following provision:

‘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 may no longer be able to continue to study medicine in that medical school place.’

10 On 3 March 2004 the Department of Health and Ageing wrote to the University advising of GA’s withdrawal from the MRBBS (Exhibit 17). The letter included the following advice:

‘Another of the MRB Program Conditions is that universities terminate enrolment in a medical course upon withdrawal of a scholar from the MRB Scholarship Scheme. In October 2002 I wrote to all university medical schools seeking comment on the MRB Scholarship Program Conditions. The University of Sydney Medical School did not raise an issue with terminating enrolment in a medical course upon withdrawal of a scholar from the MRB Scholarship Scheme.
I ask that you do not provide GA with a standard entry place should he request to continue to study medicine at the University of Sydney. I should make you aware that, if you are not able to follow this course of action, I will find it necessary to permanently remove an MRB Scholarship medical school place from the University of Sydney and replace it with a Bonded Medical Place (ie no scholarship). The Australian Government has been trying to resolve this matter through the Committee of Deans of Australian Medical Schools (CDAMS) forum …’

11 On 5 March 2004, GA filed a summons in the Supreme Court of NSW (Exhibit 20) and was granted an interim order preventing the University from making any change to GA’s enrolment, pending further order (Exhibit 21).

12 On 12 March 2004 the Department of Health and Ageing advised the University that it was prepared to enter into a new contract with GA which would, effectively, reinstate that status quo prior to GA’s withdrawal from the MRBSS (Exhibit 22).

13 On 31 March 2004 GA settled his Supreme Court proceedings with the University. The terms of that settlement were embodied in a letter from the University’s solicitors which GA signed and acknowledged (Exhibit 23). It provided:

‘We confirm that the University is prepared to settle the above proceedings on the terms set out to this letter and on the basis that they be discontinued with no order as to costs and that the present interim injunction be discharged by consent, as soon as possible.
To accept the University's offer to settle on these terms you must sign and deliver to us by close of business today the enclosed Notice of Discontinuance and Short Minutes of Order, which by so doing you acknowledge may be filed in the Supreme Court tomorrow in order to dispose of the proceedings on that basis.
We understand that you are giving further consideration to whether or not to accept the offer made by the Commonwealth Department of Health and Aging for the reinstatement of your Rural Medical Bonded Scholarship. (It is a term of the University's agreement to settle the proceedings on the above basis that you acknowledge that if you have not notified the University in writing (through us) by 4:00pm on 2 April 2004 that agreement has been reached with the Commonwealth Department of Health and Ageing for the reinstatement of your Rural Medical Bonded Scholarship (with a copy of that agreement), then it is open to the University to proceed to cancel your enrolment in the Graduate Medical Programme.
Acceptance of the above offer, and your acknowledgment of the matters stated in this letter, must be by your endorsement below of this letter.’

14 The Supreme Court made orders accordingly: the proceedings were discontinued and the interim order was discharged.

15 As GA did not enter into a further contract with the Department of Health and Ageing the University terminated his enrolment.

16 On 19 and 29 December 2007 GA had made a request under s 15 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act), for his academic record to be amended as follows:

‘I confirm that the designated officer that amends the university records to show that my recorded status matched my legal status as follows;
[1] "enrolled" in the MBBS course and
[2] credited with all integrated clinical attachments (ICA) completed and HECS have been paid for the First session/semester of 2008. (the university records the university has received this benefit in 2004)
[3] That the Royal Prince Alfred University of Sydney clinical records reflect this enrolment and add the remain 5 Integrated clinical attachments
[4] That the Medical Registration Board is advised of this enrolment status.’

17 GA advised that:

‘The records officer is compelled to make such amendment, [1] — [4] pursuant to s5 and s109 and of the COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900("the Constitution") as they operate through, s61, s51 placitum, s19ABA Health Insurance Act
1973 (Cth), restrictive trade practice sections of the Trade Practices Act (CTH).’

18 On 14 February 2008, the University refused his request to amend his academic record finding that his academic record is ‘relevant, accurate, up to date, complete and not misleading.’ GA sought an internal review of that decision on 9 March 2008, and was advised, on 1 April 2008, that the original decision had been confirmed on internal review.

19 He then, on 24 April 2008, applied for external review of that conduct by this Tribunal.

20 On 12 March 2008 GA made a related request for amendment of relevant University records under the Freedom of Information Act 1989 (the FOI Act). He requested that:

That the designated officer that amends the university records to show GA is
[r1] "enrolled" in the award course M.B.B.S. and all other contingent records be so amended.
With out limiting the generality of [r1];
[r2] credited with all integrated clinical attachments (ICA) completed and HECS have been paid for the First session/semester of 2008. (The university records the university has provided a recipit (sic) of the payment for the educational services)
[r3] That the Royal Prince Alfred University of Sydney clinical records reflect this enrolment and add the remaining 5 Integrated clinical attachments
[r4] That the Medical Registration Board is advised of this enrolment status. The records officer is compelled to make such amendment, [1] — [4] pursuant to.
[r5] That any record that shows the applicant was enrolled is "rural bonded place" from the period of 2001 onwards be removed.
[r6] The record of enrollment to show that GA was always enrolled in a HECS place.
[r6A] That any the records show that the University will receive payment from the Commonwealth on the basis the applicant is not enrolled at the university must be removed.
[r7] That any record that indicates the applicant withdrew from any "scheme" be removed.
[r8] That any record there was an agreement between that the applicants place would be terminated if the applicant withdrew from a "scheme" should be deleted.
[r9] Any record that refers to the applicant enrolled in a Rural bonded places or Standard places in relation to student enrolment type be removed or replaced to read HECS (or equivalent federal statutory) place.

21 On 14 April the University determined to refuse GA’s application to amend its records under the FOI Act. On 27 May 2008 GA sought internal review. On 28 May 2008 the internal review was determined by the Acting Deputy Vice-Chancellor, research. The internal review affirmed the original decision finding that the University’s records were ‘relevant, accurate, up to date, complete and not misleading.’

22 On 12 June 2008 filed an application with this Tribunal seeking external review of that decision.

23 While GA’s privacy application and his first FOI application were in the early stages of their progress in the Tribunal, GA made a second related request for amendment of relevant University records under the Freedom of Information Act 1989 (the FOI Act) on 9 October 2008. I will set out the request verbatim, the only alteration being the anonymisation of GA’s name :

`That the designated officer that amends all necessary university records as follows in relation to the applicant;
[A10] in relation to the terms, a-i or similar terms in the applicants record
[i] indicate they are terms of accounting and their political nature.
[ii] Restrict or amend the terms usage to denote terms of accounting or their political nature.
[iii] Then delete the terms from the applicant records.
a.`MRBSS place'
b.`MRBSS funded place'
c.'Medical Rural Bonded Scholarship,'
d.'Medical Rural Bonded Scholarship Scheme'
e.'Medical Rural Bonded (MRB) Scholarship Scheme'
f.`MRB Program'
g.`MRB scholars'
h.`MRB Scholarship medical school place'
i.`MRBSS funded place'
[A20] To avoid all doubt any records showing or indicating the applicant was or would be enrolled in or occupied a
[Dell] "MRBSS funded place" or
[De12] "MRBSS place"
[De13] "Medical Rural Bonded Place"
[Del14] "Department of Health and Ageing funded place"
Are to be delted (sic).
[A30] That the records show the applicant always occupied a
[Amdl] "standard" place (if such a term has any relevant meaning), or
[Amd2] "HECS" place, or
[Amd3]"HECS eligible" place or
[Amd4] a medical place that was a fully funded DEYTA place or
[Amd5] University of Sydney Medical Program Place
[A40] To have the record amended to show the applicant always occupied a medical place that was a fully funded DEYTA place. Any records that show otherwise should be deleted and amended to read ‘GA’s medical place is a fully funded DEYTA place'. In particular any records that show GA ever occupied or was admitted to a
[i] 'Department of Health and Ageing' funded place or
[ii] `MRBSS funded place'
be deleted.
[B05] Any records that show otherwise than the applicant met/meets the requirements for the offer "standard place", (or its derivations) (hereafter "standard place') in 2000/2001(sic) If the term "standard place" has relevant meaning be deleted.
[B10] Any records that show otherwise than the applicant met/meets the requirements for the offer "standard place" if the term "standard places" has relevant meaning at all relevant times be deleted.
[B15] The records shows the applicant met/meets the requirements for the offer "standard place" if the term "standard places" has relevant meaning at all relevant times be deleted.
[B20] Any records that show otherwise than the applicant met/meets the requirements or for the offer "University Of Sydney Medical Program", "UsydMP" in 2000/2001 and all years there after be deleted.
[B25] The records show the applicant met/meets the requirements or for the offer "University Of Sydney Medical Program", "UsydMP" in 2000/2001 and all years there after be deleted.
[B27] Any information that purports GA was only eligible for a `MRBBS' place or similar be deleted.
[B30] The applicant was enrolled in a standard place or had a standard place in any of 2000, 2001, 2002, 2004, and 2008 if the term "standard place" has relevant meaning at the relevant times.
[B40] The applicant is enrolled in a `MBBS' or `UsydMP'.
[B50] The applicant was enrolled or eligible to be enrolled as a student in the Usyd MBBS course before signing any contract with the commonwealth.

[B60] The applicant was/is enrolled or eligible to be enrolled as a student in the Usyd MBBS course before the University could ask GA to participate in any commonwealth scheme in relation to medical services or otherwise.
[B70] The record show the applicant was/is enrolled or eligible to be enrolled as a student in the Usyd MBBS course before signing any the acceptance advice form with the University.
[B80] The records show the applicant was/is enrolled or eligible to be enrolled as a student in the Usyd MBBS course independently of signing any contract with the commonwealth de deleted.
[B90] The applicant was/is enrolled or eligible to be enrolled as a student in the Usyd MBBS course independently of signing the acceptance advice form document with University.
[CO5] Any information that purports the applicant ever had or would have had or in fact had funding taken away from his place because he would not be part of any 'scheme' or contract with the Commonwealth "Cth" be deleted.
[C10] Records be amended to show that GA was enrolled in a Bachelor of Medicine and Bachelor of Surgery (MBBS) and any additional information (if it exists) be deleted from the official record of enrollment.
[D05] Any record that shows GA 'withdrew' or 'relinquished' a Medical Rural Bonded Scholarship be deleted.
[D10] Any record that shows GA 'withdrew' or 'relinquished' a MRBSS be deleted.
[D20] GA records (including internal transcript) be amended in accordance with the fact that GA was enrolled in 2004 at the relevant time. That is the internal transcript/transcript should show after enrollment status, 'ENROLLED' ON 21.01.2004.
[D30] GA records (including internal transcript) be amended to show in accordance with the fact that the GA was purported to be ' Excluded ' or a word(s) that include the meaning of excluded from course work' from the degree in 2004 or at other relevant times.
[D30] The words, 'not continuing' be removed from any relevant document
[D40] GA information/transcript be amended in accordance with the fact that GA was enrolled in 2008 at the relevant times.
[E05] That any record the university has that the applicant was in a "contract" or "agreement" with the University be removed.
[El0] Any record that the shows the GA had to sign a commonwealth contract or be part of any "scheme" or be — dis□enrolled be deleted or before GA could be a student be deleted.
E20] Any record that shows GA was in any way funded by Department of Health and aged care be deleted.
[E25] The record show that any monies received by GA was under contract.
[E27] The records show GA place was an allocated HECS place.
[E30] Firstly have all relevant parts of records amended to clearly show the fact that department of health and aged care purported to pay or did pay approximately $20,600 per annum to the University of Sydney on the basis that University of Sydney
[a] Terminated GA enrolment.
[b] Not to enroll GA.
[c] To change the records of GA enrollment
and for the option of [a] ,[b] and [c].
And then secondly have the parts of such records deleted.
Annexure A to shows the this sequential amendment
[E30] Have any information about the applicant that implies it was proved or transmitted with authorization obtained from the applicant deleted from the official record. For example the letter from Mr. Wells or any conversations with Ms. Balmaks
[E32] Any information about the applicant that implies it was provided or transmitted with authorization from the applicant be deleted to the extent that it carries or disclose any information about the applicant. The only information about the Applicant that could be sent to the department of Health and Ageing was the applicant's enrollment in a particular semester.
[E35] Any records that shows funding was withdrawn from GA be deleted or that GA was unfunded be deleted.
[E40] The records show that Mr. Edward was required to and did fund his own position at all times through HECS.
[E45] Any record that shows a`MRB Scholarship medical school place' will be permanently removed and replaced with a 'Bonded Medical Place' on the basis the University;
[a] Terminated GA enrolment.
[b] Did not enroll GA
Be deleted.
[E50] That the any term in relation to the "MRB Scholarship medical school place" and related terms be restricted to the corrected to show that it was an accounting term that may refer to a portion of monies which it factually is. Not a type of place that that can be occupied by a person. Amend the terms to money payments.
[E60] Any record that shows or requests that Commonwealth cannot allow Universities to continue enrollment students on any grounds including those who withdraw from any purported "scheme"' or similar statements be deleted.
[E70] Any records that states or purports that Universities should execute student enrolments based on clearly citable commonwealth policy or similar statements be deleted.
[E80] That the records show that GA as a eligible students or a student must be offered commonwealth contracts not as an applicant before being eligible to be a student or as a student.
[E82] The records reflect the fact a Commonwealth contract could not be offered to GA before GA were independently eligible to be a student or actually a student and eligible for HECS.
The records amended to show the true and factual operation nature of the "scheme" being;
if the University could get a student to sign a contract the University was given the given a `kickback', 'inducement' or 'payment' of approximately of $20,600 - $HECS.
These monies were independent and not related to HECS funding of GA but on the ability of the University to get students to sign contracts with the Cth up to a number of contracts the Cth allocated.
Further that the Cth demanded that GA independently be responsible for obtaining a HECS funded/eligible place.
That GA was not part of this or any 'scheme'.
The records be amended to show that fact that GA was part of a Contract with penalties upon breach of the contract as prescribed by s19ABA Health Insurance Act 1973 (CTh) not any scheme.
[E90] The record amended to shows terms such as 'Scheme' in fact to political arrangement, and offers, political views and wishes made by the Department of Health and Ageing to Universities or political or otherwise arrangements of views made by the Department and sometimes terms used by the University.
[E95] To avoid all doubt, any term in relation to any scheme should be denoted as part of the bundle of political dictates, or policy views of the Department of health and ageing about how payment of moneys to the University, not a contract or place the applicant occupies.
[E98] Any information of any proposition wish, request, decision, statement or policy adverse to the applicants enrollment, or eligibility from enrolment in a
[Amd1] "standard" place (if such a term has any relevant meaning), or
[Amd2] "HECS" place, or
[Amd3]"HECS eligible" place or
[Amd4] a medical place that was a fully funded DEYTA place or
[Amd5] University of Sydney Medical Program Place
not any citing (sic) legislative basis or in contravention of a supervening legislative basis be removed.
[E100]
[i] The applicant records have all requests, terms, view, policy views, and wishes have their political import clearly labeled as such. For example the "conditions of any scheme or MRBBS scheme" be prefaced by the words; 'this is a political request' or similar.
[ii]Then have all political terms and information removed from the applicants records.
[E 110] That all terms that refer to amount of money be followed or replaced or clearly indicated their actual meaning by clear reference to their $AUD value in the context used.

24 On 24 October 2008 the Acting Registrar of the University determined that this application was ‘the same’ as the earlier application ‘although differently described’ and found that the University’s records are ‘not incomplete, incorrect, out of date or misleading in a material respect.’ GA sought an internal review of that decision, which was affirmed on review by the Acting Deputy Vice-Chancellor on 7 November 2008. On 13 November 2008 GA sought external review of that decision.

25 It can be seen that there is a substantial duplication in the issues covered by GA’s three applications for review, and that each relates to the same substratum of facts. The second FOI application is however much more comprehensive in its coverage and includes requests for the insertion of editorial comments as to the nature of various entries in the records: e.g. indicating that various terms are accounting and their political nature. The parties agreed that the applications should be considered and determined together. It was agreed that this determination should be on the papers, after the parties had an opportunity to make submissions.

26 S 39 of the FOI Act applies:

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 the person’s opinion, incomplete, incorrect, out of date or misleading.

27 The University is an agency to which the FOI Act applied. S 40 provides for the making of amendment application. S 43 provides:

(1) An agency shall determine an application:
(a) by amending its records in accordance with the application, or
(b) by refusing to amend its records.
(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 47 and other provisions of this Act, be taken to have determined the application by refusing to amend its records in accordance with the application.

28 The reasons for which an amendment application may be refused as set out in s 44:

An agency may refuse to amend its records in accordance with an application:
(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or
(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or
(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.

29 S 45 makes provision for the giving of notices of determination, while s 46 gives a person whose request for amendment has been refused a right to add to those records a notation:

(a) specifying the respects in which the applicant claims the records to be incomplete, incorrect, out of date or misleading, and
(b) if the applicant claims the records to be incomplete or out of date—setting out such information as the applicant claims is necessary to complete the records or to bring them up to date.’

30 Section 47 gives persons aggrieved by such a determination a right to seek internal review, while s 53 then gives a right to seek review in this Tribunal.

31 In considering whether or not to amend information held by an agency it is important to remember, as Handley JA made clear in Crewdson v Central Sydney AHS [2002] NSWCA 345 at 24, that the FOI Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. His Honour said that an attempt:

‘…to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected.’

32 On review, while the Agency bears the burden of proving that its determination was justified (s 61 FOI Act), the applicant bears an initial or preliminary burden to provide evidence supporting his claim that the information is incomplete, incorrect, out of date or misleading: Morgan v Director- General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91 at [37] – [39]; Hayward-Brown v CEO, Wentworth AHS [2000] NSWADT 46 at [38]-[39]; Crewdson v Central Sydney AHS [2002] NSWCA 345 at [32].

33 In considering applications to amend information under the FOI Act a distinction has been drawn between ‘purely factual material; and material in the nature of evaluations or statements of opinion:’ Director General, Department of Community Services -v- S [2000] NSWADTAP 27 at [27]. In the case of purely factual material the consideration involves an assessment of whether it contains errors of fact, is erroneous or inaccurate: Re Leverett and Australian Telecommunications Commission (1985) 8 ALN N135, Bennett v University of New England, (Unreported 7 August 1991, Dist Ct, at p 14 per Dunford DCJ as he then was) and Director General, Department of Community Services -v- S [2000] NSWADTAP 27 at [46]. The fact that information is old is not alone a ground for amendment: the provisions do not authorise a "rewriting” of history through continuous amendment: Re Wiseman and Dept of Transport (1984) 12 ALD 707 at 710. There the Tribunal observed that, “What was written is what was written, and that fact may have its own significance.”

34 Information may be misleading where it results from bias, mistake, forgetfulness or other similar reasons: Re Jacobs and Dept of Defence (1988) 15 ALD 645. Misleading means leading astray, causing to go wrong, giving the wrong impression: Re Page and Director-General of Social Security (1984) 6 ALN N171 and Bennett v University of New England.

35 S 15 of the PPIP Act provides:

(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:
(a) is accurate, and
(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.
(2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.
(3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.
(4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998 .

36 S 53 enables a person aggrieved by conduct of an agency to seek internal review of that conduct by the agency. If dissatisfied with the outcome of the internal review, as GH was in the case of his privacy review, s 55 gives a right to seek external review in this Tribunal.

Consideration
37 Personal Information

- There is no dispute that the information which GA seeks to have amended and/or deleted is personal information within the meaning of the PPIP Act and information relating to his personal affairs within the meaning of the FOI Act.

38 The Limits of the Tribunals’ Powers on Review - Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. A frequently used phrase is that when conducting a review the Tribunal ‘stands in the shoes of the decision maker’ and makes the correct and preferable decision.

39 In undertaking a review or of a decision under the FOI Act s 63(3) of the ADTA provides:

In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

40 When varying a decision or making a decision in substitution for a decision it sets aside under s 63(3)(b) and (c) the Tribunal stands in the shoes of the decision maker and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. In the case of a review of a decision not to amend or delete records under the FOI Act, the Tribunal’s powers are those which the Agency could exercise under s 43(1) of the FOI Act, namely to amend the records in accordance with the application or to refuse to do so: see Hayward-Brown v Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46.

41 In respect to both FOI applications GA sought relief which is substantially outside the Agency’s powers under s 43, and which are beyond the powers of this Tribunal on review. Paragraphs [96] to [98] of GA’s submissions (quoted above at [23]) are an example of this. The Tribunal does not have the power to make such orders on review. I therefore intend to confine my consideration to matters which the Tribunal does have the power to determine.

42 The powers of the Tribunal when conducting a review of conduct said to be in breach of s 15 of the PPIP Act are those set out in s 55(2) of that Act, which provides:

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:
(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,
(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,
(c) an order requiring the performance of an information protection principle or a privacy code of practice,
(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,
(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,
(f) an order requiring the public sector agency not to disclose personal information contained in a public register,
(g) such ancillary orders as the Tribunal thinks appropriate

43 Were I to accept that the records held by the University contained personal information relating to GA which is inaccurate, and having regard to the purpose for which the information was collected, and to any purpose directly related to that purpose, was irrelevant, not up to date, incomplete and misleading, then it would be open to me to make any of the orders in s 55(2). I do not accept the University’s submission based on the decision in Hayward-Brown v Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46 that the Tribunal’s powers on a review under the PPIP Act are constrained, in the same manner as FOI reviews, to those which the agency could of exercised. To so find, would be to disregard s 55(2).

44 Whether the power under s 55(2)(e) extends to making orders of the type sought by GA to ‘remedy any loss or damage’ suffered by him is a question that it is not necessary for me to determine in this case. This is so, as is explained below, because I have concluded that in this case there has been no breach of the information protection principle in s 15.

45 One further point needs to be made with respect to the Tribunal’s powers on review under the PPIP Act. In his supplementary submissions GA has addressed breaches of information protection principles over and above the University’s conduct in refusing his request to amend under s 15. In KO' & 'KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18, the Tribunal said:

‘10 The Tribunal’s jurisdiction is determined by a combination of sections 52, 53 and 55 of the Privacy Act. In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, the Appeal Panel held that the conduct complained of must relate to a breach or alleged breach or contravention of an IPP or Code of Practice (s52) and held (at [7]):
11 In the present case, there was no subsequent correspondence or discussion between the parties clarifying the conduct complained of in the internal review application. The respondent’s internal review investigation report makes this clear.
12 In Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, a number of other principles were determined in order to assist a Tribunal in determining the scope of an internal review application (at [13], [14] and [17]). In summary, the Appeal Panel held (as to contraventions of the IPPs only):
“a) the applicant does not need to identify the contravention … on which he or she relies in the application for review;
b) if an applicant does identify one or more contraventions …that information would assist the agency in identifying the underlying conduct about which the applicant is aggrieved. However, the fact that a particular provision is nominated does not mean that the conduct that is identified amounts to a contravention of that provision;
c) an agency is not confined to considering the contraventions referred to by the applicant. An agency must address any contravention … that is reasonably open on a reading of the entire application for review.”
13 In the present case, the internal review application plainly related to a particular disclosure by a particular, named, officer of the respondent on a particular occasion. Indeed, it is the only relevant conduct referred to in the relevant sense. Notwithstanding that a wide spectrum of contraventions of the IPPs is later alleged in the application (by a naming of the provisions only) the scope of the application is about the disclosure of certain personal information. I accept the submission of the respondent that these applications do not concern, for example, collection or storage of the alleged personal information.’

46 This passage was recently cited with approval by the Appeal Panel in Department of Education and Training v ZR (No 2) (GA) [2009] NSWADTAP 44 at [18]. The Appeal Panel found that the scope of the internal review, reasonably construed, confined the boundaries of the external review. This is so as s 54 of the PPIP Act allows an applicant to seek review of ‘the conduct that was the subject of the application [for internal review] under section 53,’ not other conduct.

47 In my view, the issues raised by GA’s request for internal review under the PPIP Act, and those considered by the internal review, were confined to a consideration of the University’s conduct under s 15. The Tribunal does not have power to consider conduct that GA now submits was in breach of other information protection principles, but is confined to a consideration of the conduct under s 15. Therefore, insofar as GA’s submissions extend beyond the scope of internal review I do not intend to consider them.

48 Collateral Attack

- It is apparent that for a number of years GA has been in dispute with the University and others with respect to the nature of his enrolment in the GMP, and whether he held an independent HECS place in the program or one contingent on his continued participation in the MRBBS. That dispute extends to the legitimacy or otherwise of the University’s decision to terminate his enrolment in that program following his withdrawal from the MRBBS, and the termination of his scholarship contract. These issues have, in part, been the subject of Supreme Court proceedings between GA and the University which were settled with orders being made by consent.

49 It is equally apparent that in the present proceedings GA seeks to agitate, under cover of applications to amend under the PPIP Act and FOI Act, all these issues so that the University’s records accord with his assertions as the facts of his enrolment in the GMP. The amendments and deletions he seeks would have the effect of rewriting the history of what occurred to concur with his view of those circumstances, rather than those of the University. They would show him as the holder of an ordinary, ongoing HECS place in the program, with any reference to an MRBBS place being deleted. Any reference to his enrolment being terminated would be withdrawn, and the records would be amended to show that he is presently enrolled in the Graduate Medical Program. Further GA is seeking consequential amendment to record held by other Agencies so that their records reflect the changes he seeks to make to those held by the University.

50 I have no hesitation in finding that in seeking to use the FOI Act to achieve these objects GA is mounting a collateral attack on the University, aimed at achieving remedies which should properly be pursued in other forums.

51 It is obvious that GA is seeking to use the FOI Act as a means of reviewing the totality of the University’s conduct in relation to his enrolment in and termination from the GMP. I accept, as the University submits, that his primary goal in doing so ‘is to be readmitted to the Graduate Medical Program.’ The Court of Appeal in Crewdson v Central Sydney AHS [2002] NSWCA 345 said that the amendment provisions of the FOI Act are not a vehicle for the review of the ‘merits or legality of the official action recorded in them.’ Attempts to use them for such collateral purposes, the Court instructed, should be ‘rejected.’

52 While no similar decision has been made with respect to the amendment of personal information provisions in s 15 of the PPIP Act, I think the principle in Crewdson equally applicable to s 15.

53 Like the provisions of the FOI Act, s 15 is concerned with the accuracy of personal information held by an agency. While s 15 has the additional requirement that the information be relevant, up to date, and not misleading ‘having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related,’ that added requirement does not provide any justification for allowing reviews of conduct under s 15 to be subverted to reviews of the merits or legality of official action recorded in information held by agencies.

54 Consequently, I will follow the decision of the Court of Appeal in Crewdson and decline to engage in any exercise resembling a review of the merits or legality of the University’s actions recorded in personal information it holds about GA, and in the information concerning his personal affairs. The University submits, and I agree, that this is the purpose underlying all of GA’s applications. His aim is to be re-enrolled in the program.

55 While that alone is a sufficient to affirm the internal review decisions in the FOI matters, and to decide to take no action of the PPIP Act matter, I have also concluded that I should briefly outline my reasons for coming to the conclusion that the information which GA otherwise seeks to amend and/or delete is not incomplete, incorrect, out of date or misleading or inaccurate. In doing so it is important to bear in mind that the amendments, deletions and comments sought by GA, in all his applications, are tightly focussed on having the information reflect his assertion that he was offered a standard HECS place in the GMP for 2001, in the first round of offers, for the 2002 academic year. That object merely reinforces the fact that these applications are a collateral attack seeking to question the merits and legality of the University’s actions with respect to his participation in that program.

- At paragraphs [20] to [33] of his submissions GA argues that the letter from the Dean of Medicine of 18 October 2001 was incorrect when it stated that the MRBBS places –

‘…are funded by the Department of Health and Aged Care (as tax-free scholarships of $20,000 p.a. per student, plus appropriate funding direct to the University of Sydney) …

57 GA points to subsequent correspondence between Dean and an officer of the Department of Health and Aged Care whereby DETYA funding arrangements were clarified (E1 and E3). That correspondence made it clear that university funding of the MRBBS places would be ‘ongoing and full funded medical places.’ He therefore argues that the Dean’s letter is incorrect and that the places were funded by DEETYA. The University does not dispute that the places were in fact funded by DETYA, but says at the time the Dean wrote that letter those arrangement were not clear, as is shown by E1 and E3, both of which were received after the Dean sent his letter. The University submits the letter reflected the University’s understanding at that time.

58 It is important to observe that the Dean’s letter was a broadcast letter to all applicants to the faculty of medicine and did not relate to GA alone. The information which GA points to is not personal information or information which relates to his personal affairs, but is general information distributed to potential students about funding arrangements under the MRBBS.

59 At paragraphs [37]-[87] of his submissions GA addresses what he claims are errors in Exhibit 4 – the Admissions – Offers form. This is the key record relating to GA’s application for an admission into the GMP. It is a relatively simple form. It records his name, number, gender, year of application, and year of enrolment. It shows that he was interviewed, had a Global Panel Score of 4 and was not CDP qualified. By means of selected check boxes it shows he was made a ‘MBBS Firm offer’ and a ‘1^st Round Offer.’ A check box for the reserve list is not selected. The following typed comments appear on the form:

‘NB: Not eligible for CDP – Bachelor’s degree not a research degree
offered firm MRBBS offer only in the reserves list round – 01/02/01
accepted MRBBS offer – 8/02/01’

60 GA argues that, the comments aside, this form shows that he was made and accepted a firm offer of an MBBS in the first round. He points to the Dean’s advice in his letter of 18 October 2001, that eligible holders of standard entry places from the first round of offers would then be offered MRBBS places as being consistent with this. He also relies on the statement in the MRBBS acceptance form (Exhibit 17 and E6) that he understood ‘that my standard place will not be relinquished’ as confirming that he held a standard place in the first round. He submits that the comments in the Admissions – Offers form are incorrect and misleading and seeks to have them deleted, with notations added to make it clear that he was offered a standard place in the first round.

61 In its submissions in reply the University sought to rely on an unsigned statement from the Dean, dated 8 March 2009, seeking to explain the history relating to GA’s enrolment. GA objected to the Tribunal admitting this material, correctly noting that the University had previously advised that all the evidence was in. He argues that the statement should not be considered on a procedural fairness basis, but none the less makes detailed submissions in response. I think there is some merit in what GA says as to procedural fairness. Moreover, I am not prepared to rely on an unsigned statement which GA has not been given the opportunity to test.

62 Putting that statement aside, I have a number of substantial difficulties with GA’s submissions with respect to the Admissions – Offers from. There is other evidence as to the events surrounding his admission to the Program which is inconsistent with him receiving a first round offer. The first is the timing of the offer he received.

63 The Deans letter of 18 October 2001 made it clear that first round offers would occur ‘in late October’ with MRBBS offers being made soon after the closing date for acceptances of first round offers, which was 6 November 2001. This, however, clearly did not occur as is demonstrated by the letter from the Dean to the Department of Health and Aged Care, of 21 December 2001 (E3), in which the Dean advised:

'[T]he offer of places under the Scheme will have to be a staged one: Initially we will be offering scholarship places to applicants for our medical program who already have a firm offer of a DETYA funded place. There are eight such students. Depending on how many of those students accept the bonded scholarship, we will need to offer more applicants DETYA funded places and thereafter make additional offers of scholarships. I cannot see how this process can easily be completed by the end of January, but will make every endeavour to fill all 25 places as soon as we can.'

64 GA was not offered a place in the GMP until 1 February 2001. The timing is not consistent with the offer being a first round offer. That letter advised, among other things, that (my emphasis):

‘I am writing to advise you that you have qualified 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.
If you wish to accept this place , you must return the attached Acceptance Advice form to the Faculty of Medicine (Attention: Admissions Officer), together with a copy of the contract for a Medical Rural Bonded Scholarshi p which you have signed and lodged with the Commonwealth of Australia, no later than Friday 16 February 2001. In addition, if you wish to be considered a "Country-resident medical student" as defined in the contract, you must also enclose an appropriately completed statutory declaration or other appropriate documentary evidence. 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.
Some specific conditions apply to an MRBSS place in the University of Sydney Medical Program. …

65 When he accepted that offer GA wrote on the acceptances from that, ‘I would be interested in the option of a standard place if it arose.’ I read this as clearly indicating that at that time GA was aware that his was not a standard place. I am reinforced in this conclusion by the fact that the acceptance from included the pro-forma statement that ‘my standard place will not be relinquished.’ Why, given that statement, would GA express an interest, in the same document, in a standard place ‘if it arose’ unless he was well aware that the place he was being offered was not a standard place, but an MRBBS place? This impresses me as entirely at odds with GA’s view of the facts, and entirely consistent with the comments on the Admissions – Offer form.

66 As a result I conclude that information contained in the comments in the Admissions- Offers from which GA seeks to have deleted is not incomplete, incorrect, out of date or misleading, nor is it inaccurate having regard to the purpose for which they were collected.

67 GA made also submissions going to the University’ failure to demonstrate that the Global Panel Score of 4 is correct. He argues that the University has not demonstrated this is so. For that evidentiary burden to be cast on the University on review under the FOI Act, GA first has to satisfy the preliminary burden of providing evidence supporting his claim that the information is incomplete, incorrect, out of date or misleading. He has not done so. It follows that he also has not satisfied the greater burden he bears under the PPIP Act.

68 I add that the Admissions-Offers form does contain inconsistencies in respect to the record that GA received a first round offer. While it can be argued that this record is inaccurate, incorrect and misleading, GA has not requested that this record be amended. As a consequence, I do not intend to consider it further.

69 In his submissions GA acknowledged that all the amendments he sought to the University’s other records were contingent upon the amendments he sought to the Admissions-Offers form being made. It is the lynch-pin to the argument that his academic record and other University records required consequential amendments to reflect errors that flowed from his initial status being incorrectly recorded. As a result, it is not necessary to consider those other records.

Conclusion

70 As a consequence I will affirm the decisions under review with respect to both FOI applications.

71 With respect to the PPIP Act application, I determine not to take any action.