Re Hinds and Australian National University
[2011] AATA 261
•19 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 261
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5662,
GENERAL ADMINISTRATIVE DIVISION ) 2010/0111 & 2010/0354 Re LYN HINDS Applicant
And
AUSTRALIAN NATIONAL UNIVERSITY
Respondent
DECISION
Tribunal Mark Hyman, Member Date19 April 2011
PlaceAdelaide
Decision
Having heard the parties, and pursuant to section 33 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal directs that:
1. The three documents that the applicant seeks to amend are documents to which amendments may be sought under section 48 of the Freedom of Information Act 1982 (Cth);
2. The respondent’s motion to dismiss applications for amendment under matters 2010/0111 and 2010/0354 is denied;
3. Within fourteen days of the date of this decision, the applicant is to lodge a complete set of proposed amendments to the three documents specifying the textual changes sought.
4. In respect of each of the amendments sought under matters 2010/0111 and 2010/0354, the applicant is to identify whether in her view the proposed amendment is to a record of an opinion; and if so, whether
(a) the opinion is based on a mistake of fact; or
(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion; or
(c) both (a) and (b) above;
5. Once a further seven days have elapsed a telephone directions hearing is to be listed before me to determine any outstanding matters of scope and procedure.
Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth), the hearing of this matter is to be held in public.
...................[sgd].......................
Mark Hyman, Member
CATCHWORDS
FREEDOM OF INFORMATION – amendment and annotation of personal records – whether all amendments sought fall within scheme of the Act - definition of personal information – citation and description of academic papers - amendment of record of opinion –defamatory amendment proposals.
PRACTICE AND PROCEDURE - Whether hearing should be held in public – use of Tribunal processes for collateral purposes – privilege attaching to Tribunal processes
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 35
Freedom of Information Act 1982 (Cth) ss 4, 48, 49, 50, 51, 51A, 51B, 55, 58
Addis v Crocker [1961] 1 QB 11
Crewdson v Central Sydney Area Health Service [2002] NSWCA 345
Gibbons v Duffell (1932) 47 CLR 520
Mann v O'Neill (1997) 191 CLR 204
Re Denhollander and Department of Defence [2002] AATA 866
Re Mulder and Department of Immigration and Multicultural and Indigenous Affairs [2002] AATA 1347
Re Olsson and Australian Bureau of Statistics (AAT 2635, 18 April 1986)
Re Olsson and Public Service Board (AAT 2632, 18 April 1986)
Re Searle and Secretary, Department of Family and Community Services [2000] AATA 371
Re Wiseman and Department of Transport (1984) 12 ALD 707
Re ‘WBT’ and Department of Defence [2007] AATA 5
Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431John G Fleming, The Law of Torts (1998) 9th ed LBC Information Services, Sydney
REASONS FOR DECISION
19 April 2011
Mark Hyman, Member
Background
1. Dr Hinds undertook research at the Australian National University (ANU) over the period 2005-2008 in areas relating to sociological aspects of policing. She worked with other research personnel at various levels of seniority. Dr Hinds’s relations with her colleagues were not always happy and she raised various concerns with ANU management. In 2008 Dr Hinds left the ANU. After leaving, Dr Hinds once again raised concerns about her employment with the University and commenced a formal grievance action, alleging bullying, failure to provide a safe workplace and mismanagement of a research project funded by the Australian Research Council (ARC). Dr Hinds’s grievance was found by the University not to have substance.
2. Dr Hinds sought and obtained access under the Freedom of Information Act 1982 (Cth) (FOI Act) to various documents held by the ANU. Dr Hinds has now applied to make use of other provisions of the FOI Act to amend or annotate documents that hold personal information about the applicant.
3. This matter relates to four applications under s 48 of the FOI Act:
(a)On 6 July 2009 Dr Hinds applied seeking a number of amendments to an email from Professor Peter Grabosky to Ms Kathryn Leonard, of the ANU’s Human Resources area (‘the Grabosky email’);
(b)On 10 July 2009 Dr Hinds sought a number of amendments to an email from Professor Valerie Braithwaite to Ms Leonard (‘the Braithwaite email’);
(c)On 11 August 2009 Dr Hinds sought amendments to the final report to the ARC on the project ‘Policing in the 21st Century’ (‘the Final Report’); and
(d)On 26 May 2010 Dr Hinds sought amendments to the progress report for 2005 to the ARC on the same project (‘the 2005 Progress report’).
4. The first three of these applications were the subject of adverse decisions by the ANU. Dr Hinds sought internal review of these adverse decisions and again the ANU declined to amend the documents. On 23 November 2009 she applied to the Tribunal to amend the Final Report. On 21 January 2010 Dr Hinds applied to the Tribunal to amend the Grabosky and Braithwaite emails. These matters are all being heard together.
5. It appears that Dr Hinds did not make an application to the Tribunal to review the ANU’s decision regarding the Progress Report. Accordingly, decisions regarding the Progress Report are not within the Tribunal’s jurisdiction. However, the citations of papers and other reports Dr Hinds sought to amend in the Progress Report are all paralleled in the Final Report, and both parties have accepted that any changes to the parallel citations in the Final Report will be reflected in corresponding changes in the Progress Report.
Issues
6. Some of Dr Hinds’s proposed changes to the Final Report have been resolved by negotiation with the ANU. The following issues raised by Dr Hinds in that document remain in dispute:
·Several issues relating to text entered against the ARC question ‘Did anything affect the satisfactory and timely progress or completion of the report?’
·How a 2005 report ‘Policing for the 21st Century - Final Report from the Focus Groups’ should be cited.
·Under which heading a number of reports and papers should be listed.
·Two entries against the ARC heading ‘Evidence of impact and contribution’.
7. The Grabosky and Braithwaite emails remain in dispute in their entirety.
8. Several preliminary issues have arisen that, if resolved early, will help to make a hearing on these issues more efficient. These include:
· Whether some of the above applications fall within the scope of the relevant provisions of the FOI Act. In the alternative, whether the documents which Dr Hinds seeks to amend are otherwise amenable to the amendment processes of the FOI Act.
· Whether the applications should be dismissed because the language used by Dr Hinds is defamatory. Alternatively, whether any hearing on this matter should be closed rather than public.
· Whether all documents sought by Dr Hinds are available for her to use, if appropriate, as evidence in the hearing.
9. All these arguments were covered in written submission by the parties. I heard oral argument on 28 March.
Scope – do any of the documents fall outside the scheme of the Act, or are they otherwise not amenable to the Act’s decision-making processes?
Legislative Scheme
10. The FOI Act underwent major reform through passage of the Freedom of Information Amendment (Reform) Act 2010 (Cth). The amendments made by that amending Act took effect on 1 November 2010. Dr Hinds’s applications preceded that date, and the applications are subject to the Act as it stood before those amendments.
11. Dr Hinds applied under the FOI Act to amend personal information held about her by the ANU. The decisions covered by this review relate to amendment of personal information and do not extend to annotation. Nevertheless for the primary decision-maker amendment and annotation decisions are often closely entwined, and it is the annotation provisions that provide specifically for the handling of defamatory material under the FOI Act. Further, under section 58(1) of the FOI Act, the Tribunal has power to decide any matter that could have been decided by the agency. That means that the annotation powers of Part V are also available to the Tribunal. For these reasons the provisions relating to annotation have been included in what follows.
12. Part V of the Act provides for people to seek amendment or annotation of personal information held by government entities. ‘Personal information’ is defined in section 4 of the FOI Act as ‘information or an opinion ... whether true or not, ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.
13. Under section 48, where an agency holds personal information; the person concerned has lawfully gained access to it and claims that it is incomplete, incorrect, out of date or misleading; and it has been used, is being used or is available for use for an administrative purpose, the person may apply to the agency to amend or annotate the information. Section 49 specifies the requirements for an application for amendment of personal records. Relevantly, it requires that an application must specify the amendment requested. Section 51A specifies the requirements for an application for annotation of personal records, including, again, that an applicant must specify the information that is sought to be added by way of annotation.
14. Section 50 specifies the process to be followed by an agency in deciding whether to agree to an amendment sought by an applicant. Section 51B provides that an annotation to personal information must be made in accordance with the application under section 51A, unless the decision-maker considers it to be irrelevant, defamatory or unnecessarily voluminous. Section 51 specifies the process for to be followed if an application for amendment is unsuccessful: n such a case, the applicant is to be given an opportunity to provide an annotation, and that annotation is to be added to the record unless the decision-maker considers it to be irrelevant, defamatory or unnecessarily voluminous.
15. Section 55(6)(c) provides that where the Tribunal reviews a decision refusing to amend a record of personal information, it must not require an amendment to a record of opinion unless that opinion was based on a mistake of fact or ‘the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion’.
Consideration
16. Turning to Dr Hinds’s applications, the first question is whether the documents fall within section 48, including whether they contain ‘personal information’ as defined in the FOI Act. It is convenient to consider the documents which Dr Hinds seeks to amend under two headings: the Final Report; and the two emails from Professors Grabosky and Braithwaite.
a) The Final Report
17. There has been no argument that the Final Report is not held by the ANU, or that Dr Hinds has not obtained access to it lawfully. The Report has been used for an administrative purpose, namely in acquitting funds provided by the ARC. The document is a report to a research funding agency and it includes various references to the people who did the research, thus enabling particular individuals – in this case Dr Hinds – to be identified. Viewed as a whole, the Final Report falls within section 48.
18. That does not necessarily imply that every amendment Dr Hinds seeks to the Report is within section 48, as some of the material to which amendment is sought may not include personal information. A particular issue is how particular research papers should be cited in the Final Report. Following the resolution of other references, one paper remains in dispute, namely that currently cited without Dr Hinds as a contributor, as ‘Fleming, J (2005) Policing for the 21st Century – Final Report from the Focus Groups’ (the Focus Groups paper). Dr Hinds seeks to have the authorship of this paper attributed to ‘Fleming, J and Hinds, L’. The ANU argues that because amending the citation in the Final Report would create an inconsistency between the citation of the paper in the Report and the cited paper itself, the application to amend the Final Report should be treated as an application to amend the original paper. As the original paper is currently silent on Dr Hinds’s contribution, the ANU contends that that paper cannot fall within the definition of ‘personal information’, as the definition of the latter requires that the individual be identifiable. Therefore, the paper is outside the scope of the FOI Act, and Dr Hinds’s application fails.
19. I cannot agree with the ANU. It would surely be anomalous to exclude an application for amendment on the basis not of the document which it seeks to amend, but on the basis of another document which it is proposed I should deem it to seek to amend to avoid a perceived inconsistency.
20. A second problem is that the inconsistency is likely to arise even if the ANU’s recommended course of action is followed. If I were to amend the original papers, as well as their citations in the reports to the ARC, an inconsistency with other citations of those same papers in yet other papers or reports would remain. The powers and responsibilities of the Tribunal as decision-maker extend only to the documents that Dr Hinds seeks to amend. The Tribunal has no broader powers or responsibilities, for example, with regard to the ANU’s general concerns as an academic institution. Others will have to decide whether and how to resolve any inconsistency that might be created by the Tribunal’s decision.
21. The citation of the paper is within the scope of the review. The omitted attribution of authorship of a scholarly work, in the context of other cited papers, some of which are attributed to Dr Hinds, fits within the concept of personal information that is capable of being incomplete (or inaccurate or misleading) through that omission. That still leaves open, of course, whether that citation is in fact incomplete, misleading or inaccurate; and all the questions of the merits of Dr Hinds’s proposed amendment. These issues should be tested at a hearing.
22. Another amendment which Dr Hinds has sought relates to the heading or descriptor under which various papers are listed – whether as ‘other academic outputs’, as currently listed, or under some other heading. The ANU contends that the placement of the citation of papers in the Final Report cannot constitute ‘personal information’ – that it is the choice of the author of the Final Report, is not personal information about the authors of the papers, and cannot in any case be misleading, inaccurate, incomplete or out of date.
23. I do not agree with the ANU’s argument. The FOI Act is beneficial and remedial legislation, and its benefits should not be unduly narrowed by a strict construction. Information about a person includes contextual information. In an academic context, information about authorship of papers, and about the nature of those papers – whether they have been refereed or not, for example – can be important in influencing a person’s career prospects. I read the intention of the legislature as embracing a wish to allow people to correct inaccuracies in records that might adversely affect their future employment. The placement of the citations in the report is sufficiently connected to the authorship and significance of the scholarly papers that it can be viewed as falling within the definition of ‘personal information’. By extension, placement that gives an inaccurate impression of the standing or academic value of a paper could mislead a reader and potentially falls into the category of a record of information that is incomplete, misleading or inaccurate.
24. Whether Dr Hinds’s other proposals for amendment of the Final Report fall within the Act is less clear. Her application and the accompanying documentation provide a clear indication of what Dr Hinds believes is inaccurate or misleading or incomplete, and why, but she is yet to specify what precise changes to the text she wishes to make.
25. One of these remaining matters involves a proposal by Dr Hinds to include a statement that she was bullied in the course of the research project. Dr Hinds argues that this statement should be included in the section of the report responding to the ARC question ‘Did anything affect the satisfactory and timely progress or completion of the report?’ and that the omission of a statement to that effect makes that section of the report incomplete, inaccurate and misleading.
26. That proposal raises several obvious questions. In the first place there is the question whether the information proposed for amendment is ‘personal information’ under the FOI Act. Second, there is the question whether the information as it stands is ‘incomplete, inaccurate, misleading or out of date’. On the basis of what Dr Hinds has argued to this point it appears that her amendment aims to remedy the incompleteness of the report to the ARC, rather than the incompleteness of the record of her personal information. I have not had the opportunity, however, of studying exactly where and with what choice of words Dr Hinds proposes to amend the section in question, as Dr Hinds is yet to specify her amendments with the requisite degree of precision. Rather than exclude the proposed amendment at this stage, the case ought to be tested once a proposed amendment has been more precisely specified. If Dr Hinds’s proposed amendment is found to be within scope, its merits will need in any event to be tested.
27. Dr Hinds’s other amendments present similar challenges as regards whether or not they fall within the scope of section 48. In respect of all these other matters relating to the Final Report, the question of whether each proposed amendment falls within the scope of the FOI Act should be tested once Dr Hinds makes more precisely clear what amendments she wants.
b) The Grabosky and Braithwaite Emails
28. It is common ground that these documents fall within section 48 of the FOI Act. The ANU, however, argues that these documents consist of the recollections of the author of each document, recorded for the purpose of providing an input to the ANU’s formal grievance process. As such, the documents are excluded from amendment for two reasons. First, it is inappropriate to amend such a document, as it is a historical record of the input of the author into the grievance process; it is the author’s account of events and opinions and to amend it would not only substitute some other account for that of the author, but also falsify the historical record of the grievance process. Second, amendment of personal information by the Tribunal must comply with section 55(6)(c), which excludes the amendment of documents that are records of opinion unless it can be shown that the opinion in them is based on mistakes of fact, or the author was biased, unqualified, or acted improperly.
29. The ANU’s argument is of some apparent force. The emails clearly include both statements of fact and statements of opinion, but even if Dr Hinds can show that the facts are incorrect, to the extent that the statements of fact are an account of particular matters by the author for the purposes of a grievance process, to subject them to amendment would appear, at best, problematic.
30. On the other hand, both through the definition of ‘personal information’ itself and through the provisions of section 55(6)(c), it is clearly contemplated by the FOI Act that under some circumstances it may be appropriate to amend a statement of opinion. The documents fall within the scope of the FOI Act, and Dr Hinds is entitled to seek amendment of them. Section 50(3) of the FOI Act encourages retention of the historical record, and section 50(2)(i) provides for an amendment to be made by adding a note to the record. Thus, if Dr Hinds were to establish that something in the emails is misleading or inaccurate or incomplete, it would be possible for a note to be appended to the effect that the Tribunal had determined that, say, a certain fact was inaccurate or a certain opinion not founded on fact.[1]
[1] See Re Searle and Secretary, Department of Family and Community Services [2000] AATA 371, at [34]-[36]; Re Wiseman and Department of Transport (1984) 12 ALD 707, at 710; ‘WBT’ v Department of Defence [2007] AATA 5, at [22]; Re Denhollander and Department of Defence [2002] AATA 866.
31. There is also the risk that Dr Hinds will attempt to use the processes of the Tribunal to continue her grievance process with the ANU through another avenue. The public resources of the Tribunal are provided to enable substantive review of decisions and it is not appropriate that resources provided in this way should be used for collateral purposes: Crewdson v Central Sydney Area Health Service.[2] No doubt the processes under which Dr Hinds took her grievance allow her various options to continue pursuing the matter. Whether or not she has exhausted those options, Part V of the FOI Act has been passed to allow amendment or annotation of personal information, and it can only be used for that purpose.
[2] [2002] NSWCA 345. See also Re Olsson and Australian Bureau of Statistics (AAT 2635, 18 April 1986) , at [12]; Re Olsson and Public Service Board (AAT 2632, 18 April 1986), at [13]; Re Mulder and Department of Immigration and Multicultural and Indigenous Affairs [2002] AATA 1347, at [46].
32. The ANU also suggests that Dr Hinds’s proposed amendments to the emails are defamatory, and that the Tribunal should dismiss them. The ANU is right that some of the language used by Dr Hinds is intemperate, and some is defamatory. But Dr Hinds is an unrepresented applicant. She has been warned, and the Tribunal will not agree to amendments that are couched in defamatory language. She is yet to specify in a precise fashion what textual changes she seeks, and provided such specified changes are formulated in a way that is aimed at remedying text that is inaccurate, incomplete, misleading or out of date, they should be considered on their merits.
33. I have decided that it is inappropriate at this stage to exclude the emails from the scope of the review. The matters are best tested in the hearing process. Dr Hinds should have an opportunity to state her case, and the ANU to respond to it. Nevertheless, the matters that are raised must address the issue before me, namely the potential amendment of the documents. Any argument or evidence that touches on the conduct, motivation or character of the author of a document, or anyone other than the author, may only be raised if it goes to the matters set out in the amendment provisions of the FOI Act. Of course, no amendment of a record of Dr Hinds’s personal information that is defamatory can be agreed by this Tribunal.
34. Dr Hinds cannot now alter or add to the amendments she has applied to make. But in order to provide clarity on the amendments, enable the ANU to prepare for a hearing, and allow resolution of any remaining issues of scope, it is essential that Dr Hinds specifies with some precision the changes she would like to make to the three documents. The Grabosky and Braithwaite emails are, for the most part, expressions of the authors’ opinions, and Dr Hinds must indicate for proposed amendments to opinion in those documents which provisions of section 55(6)(c) she seeks to apply.
The proposal to hold a closed hearing
35. The Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) allows the Tribunal to control its own procedure (section 33). Matters will be conducted in public, but hearings may be closed where there are reasons for that to occur (section 35).
36. The ANU noted that evidence given before the Tribunal is subject to qualified privilege, and suggested that in such circumstances there is a risk that Dr Hinds would use the privilege to attack some of the people with whom she has taken issue in her grievance process, secure from the threat of defamation action. The level of privilege attaching to the Tribunal’s processes appears not to have ever been definitively determined, although it appears certain that at the very least they are subject to qualified privilege: Mann v O'Neill.[3] In any particular instance the onus of establishing privilege lies on the party asserting that privilege, and there is a strong presumption against the extension of privilege beyond what is necessary.[4]
[3] (1997) 191 CLR 204; see also Addis v Crocker [1961] 1 QB 11, Gibbons v Duffell (1932) 47 CLR 520 and John G Fleming, The Law of Torts (1998) 9th ed LBC Information Services, Sydney pp 618-18.
[4] Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431
37. The protections afforded by privilege are intended for a purpose, that purpose being to ensure that the administration of justice proceeds freely and without fear of consequences - that the proceedings, whether of a court or tribunal, may be conducted on the basis that evidence may be given and argument made without fear of legal proceedings.
38. That principle, however, does not embrace the introduction of irrelevant matters or the use of the proceedings for an ulterior purpose. This review is for the purposes of deciding whether and how to amend the text of documents. Any questions or arguments relating to the conduct, character or motive of people drafting those documents are irrelevant unless they can be used to support a case that relevant personal information is incomplete, incorrect, out of date or misleading.
39. It appears therefore that any material that is defamatory or intended as criticism of particular people is highly unlikely to be relevant to the review. Use of the Tribunal processes to challenge administrative action already taken or to attempt a collateral review of the merits of the grievance process is inappropriate, and will not be accommodated in the hearing. Proper discipline exerted over the relevance of argument and evidence should of itself be sufficient to retain the hearing’s proper focus on relevant matters. The hearing will be held in public, but should the applicant show insufficient restraint, the option of closing the hearing is always available.
The applicant’s submission
40. Dr Hinds lodged a submission on 14 March 2011 in relation to further applications for access to documents held by the ANU. These are not documents she seeks to amend, but rather documents that she believes may be useful in an evidentiary sense in the hearing process. At the preliminary hearing the ANU undertook to do its best to enable Dr Hinds to have access to those documents, even if on a redacted basis. I am grateful to the respondent for that undertaking and would encourage the ANU to make every effort to ensure that Dr Hinds is not denied the opportunity of making her case as completely and persuasively as the evidence allows.
I certify that the preceding 40 paragraphs are a true copy of the reasons for the interlocutory decision herein of Mark Hyman, Member.
Signed: ...................[sgd].............................
C. Baillie, AssociateDate of Hearing 28 March 2011
Date of Decision 19 April 2011Representative for the Applicant Self-Represented
Solicitor for the Respondent Timothy Neal
Australian National UniversityCounsel for the Respondent Allan Anforth
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