Jotanovic v Housing SA

[2011] SADC 138

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division: Appeal Under Freedom of Information Act)

JOTANOVIC v HOUSING SA

[2011] SADC 138

Judgment of Her Honour Judge Davey

2 September 2011

ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - AMENDMENT OF PERSONAL RECORDS

Appeal pursuant to s40 of the Freedom of Information Act 1991 against a decision of the Ombudsman refusing the appellant's application for amendment of Housing SA records.

Held:  Decision appealed against is affirmed.  Appeal dismissed.

Freedom of Information Act 1991 ss 30(c), 37, 40, 40(2) and 48; District Court Act 1991 ss 42B and 42E, referred to.

JOTANOVIC v HOUSING SA
[2011] SADC 138

Issues

1. This is an appeal pursuant to s 40 of the Freedom on Information Act 1991 (FOIA) by the appellant who is a tenant of Housing SA and is aggrieved by a decision made by the Ombudsman refusing her application for amendment of Housing SA’s records concerning her personal affairs.  It is alleged that the information contained in the Housing SA’s records is “incomplete, incorrect, out-of-date or misleading.”[1]

   [1] See s 30(c) of the FOIA

   Nature of Appeal

2. The appeal comes before the District Court pursuant to s 40(2) of the FOIA.  Section 42B of the District Court Act 1991 (DCA) provides for appellate jurisdiction conferred on the Court by a special Act. Pursuant to s 42E of the DCA appeals in this court’s Administrative and Disciplinary Division require that I examine the decision of the original decision maker on the evidence or material before the original decision maker although I have power to receive additional material. In this case I have received and considered a number of additional papers from the appellant. Pursuant to s42E of the DCA I am not bound by the rules of evidence but must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and form and I must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons. 

3. I also note s 48 of the FOIA which provides:

   48—Burden of proof

   In any proceedings concerning a determination made under this Act by an agency, the burden of establishing that the determination is justified lies on the agency.

4. A question that arises is whether this appeal is a “proceeding concerning a determination made under this Act” and the impact of this provision on the appeal. In my view this appeal is not such a proceeding. If s 48 FOIA was intended to include appeals it would have said so; there is no reference to appeals even though s 40 FOIA refers to appeals and s 48 FOIA is not contained in Part 5 of the Act which concerns appeals to this court. I note that s 48 FOIA is, prima facie, contrary to s 42E of the DCA. Having said that, I have considered this appeal in light of s 48 FOIA as well as s 42E of the DCA and whatever approach is followed, I come to the same conclusion.

   Background

5. The appellant complains about certain allegations made about her in a petition that was circulated amongst residents of the area where she resided who are fellow tenants in units owned by Housing SA.  The other documents include the verbal warning from 13 May 2009 and the notations from the appellant’s electronic records at Housing SA from 13 May 2009.

6. It is obviously important that Housing SA maintain records concerning their various tenants.  A person can apply to have them amended if they are “incomplete, incorrect, out-of-date or misleading.”  The appellant says that the matters in the records are untrue and she wants them removed.

   Discussion

7. The records of Housing SA contain complaints about the appellant which she says are not true.  If the Ombudsman or I were to determine whether the complaints were true or not we would have to hear evidence from all of the people making the complaints and Mrs Jotanovic about the circumstances dealt with in the complaints and determine the issues.  That would be an inappropriate task and, in my view, is not what Parliament intended.

8. A record is not misleading merely because the person spoken of in the record disagrees with the truth of it.  The record is accurate if it accurately states what is said about the tenant.  This is a different issue from whether what is said about the tenant is the truth.  The Housing SA records, properly understood, are not saying, “this is the truth about Mrs Jotanovic”; they are really saying “this is what the people who signed the petition are saying about Mrs Jotanovic.” In my view, the decision of the Ombudsman correctly identified that difference.  Also, the Ombudsman has correctly stated that he must have regard to the “records” as a whole and not simply an individual document.[2]  No doubt this is because the effect of the whole record and not just an individual document makes it clear that the record is what is being said by the petitioners and not the truth of what they are saying.

   [2]    Ombudsman's Reasons for Determination at [18]

9. The Ombudsman said:[3]

   In my view what the petition ‘records’ is that the signatory shared opinions of Ms Jotanovic as expressed by the wording of the document, and wanted action taken by the agency accordingly.  My provisional determination will be on this basis.

   [3]    Ombudsman's Reasons for Determination at [25]

10. The Ombudsman concluded:[4]

    However, it is not my role to reinvestigate the complaints made against Ms Jotanovic, or to provide my own opinion about what might have transpired.  I am simply not in a position to do so.  My role is to provide my determination as to whether the records nominated by Ms Jotanovic are incomplete, incorrect, out-of-date or misleading within the meaning of the Freedom of Information Act.  It is my view that the opinions of the signatory have not been discredited, despite Ms Jotanovic’s strong denial; and nor have I been persuaded that the opinions were formed on the basis of incorrect factual evidence or that there was no basis for them at all.

    [4]    Ombudsman's Reasons for Determination at [27]

11. I respectfully agree with the determination of the Ombudsman that the records are not incomplete, incorrect, out of date or misleading because they are not records of Mrs Jotanovic’s behaviour, they are only records of what certain people have asserted has been Mrs Jotanovic’s behaviour. 

12. The interpretation of the FOIA made by the Ombudsman is supported by the existence of s 37 of the FOIA which provides for “Notations” to be added to records when a person claims that matters contained in the records are incomplete, incorrect, out-of-date or misleading. The intention of s 37 of FOIA is to provide a means for the record to show that, for example, an allegation is disputed.  I note that in this case Housing SA has offered to further confer with Mrs Jotanovic as to the nature and scope of notations on the records that she thinks will indicate that there is a dispute as to the matters recorded therein.

    Conclusion

13. For these reasons, the decision appealed against is affirmed and I dismiss the appeal.