S v Department of Community Services

[2000] NSWADT 24

CITATION:	S -v- Director-General, Department of Community Services [2000] NSWADT 24
DIVISION:	General Division
PARTIES:	APPLICANT S RESPOPNDENT Director-General, Department of Community Services
FILE NUMBER:	993184
HEARING DATES:	15/11/99
SUBMISSIONS CLOSED:	11/22/1999
DATE OF DECISION:	03/17/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	amendment to documents - Freedom of Information Act - amendment to documents
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Re Corbett and Australian Federal Police (5 AAR 291) Re Leverett (1985) 8 ALN N135 Re Sime and Minister for Immigration and Ethnic Affairs 21 AAR 369 Bennett -v- University of New England (unreported 7 August 1991 District Court) Cox and the Department of Defence 20 ALD 499
REPRESENTATION:	J Needham, barrister R Henderson, barrister
ORDERS:	1. The hearing be conducted wholly in private.; 2. Except in the official report of the proceedings, the publlication of evidence given before the Tribunal, or of matters contained in documents lodged with the Tribunal or received in evidence, is prohibited.; 3. Except in the official report of the proceedings, the publication of the names and addresses of witnesses appearing before the Tribunal is prohibited.; 4. The decision of the Director-General, Department of Community Services not to amend the relevant records in the manner requested by the applicant is set aside.; The following decision is made in its place.; 5. The two Intake Summaries dated 25 February 1997 and 27 February 1997 in relation to Y are to remain in the CIS system and on the files but the passages identified as incorrect or misleading in paragraphs 30 to 38 of this decision should be obliterated from the record. An annotation in relation to each record should be provided on the CIS system and the paper files in the following terms: ; The Administrative Decisions Tribunal has ordered that several passages in the following record be deleted or obliterated. These orders were made because the Tribunal found that those passages were incorrect or misleading and should be amended pursuant to the Freedom of Information Act 1989.

Publication of names

1 The Tribunal has made an order under s 75(2)(a), (b) and (c) of the Administrative Decisions Tribunal Act 1997, prohibiting the publication of names and addresses of witnesses appearing before the Tribunal; and prohibiting the publication of oral or documentary evidence given before or received by the Tribunal.

Background

2 S is the mother of a 17 year old child, Y, who has severe autism. In 1989 the Department of Community Services (the agency) started caring for Y in a residential setting. S complained to the agency about the conditions at Y’s home. In 1996 Y moved to a group home.

3 This is an application by S for the Tribunal to review a decision of the agency refusing to amend its records in accordance with S’s request. The records in question are two Intake Summary documents, one dated 25 February 1997 and the other dated 27 February 1997, prepared by an officer of the agency. The summaries list concerns about Y’s well being and recommend an investigation.

Scheme of the FOI Act

4 The Freedom of Information Act 1989 (FOI Act) contains provisions for the amendment of records to which a person has been given access under the Act. Section 39 of the Act allows a person to apply for an amendment to the agency’s records. That section states that:

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.

5 Section 43 of the Act states that:

An agency shall determine an application

(a) by amending its records in accordance with the application; or
(b) by refusing to amend its records.

6 It is the refusal of the agency to amend its records in accordance with S’s application that is the subject of these proceedings.

History of the proceedings

7 From March 1996 onwards S complained to the agency about various aspects of the group home in which Y was living. She has had a long association with the agency which has not always been amicable.

8 On 28 September 1998 S’s solicitors lodged on her behalf an application under the FOI Act seeking amendment of “s 22 notification signed off by Greg Hale.” The letter requested that the notification be deleted from the record immediately.

9 On 22 October 1998 John Hunter, Director of Corporate Services with the agency, refused S’s request to remove the records from the file. The response included the following passages:

In line with recommendations from the Royal Commission into the NSW Police Service (Paedophilia Reference), no records can be deleted from the Department’s CIS. However, suitable notation can be placed on the record to clearly indicate how the matter has been dealt with.

The Andersen/French investigation of this notification failed to substantiate the concerns raised by staff. In this light, it is proposed that the following notation flowing from the Andersen/French findings be added to the CIS record:

The Andersen/French review of this notification found that it was clear that Departmental staff held genuine concerns about Y’s well being in relation to perceived differences in the permitted use of medication by his parents and by Departmental staff.
However, during the course of their investigation, Andersen/French were unable to identify objective grounds to show that these concerns were valid. Interviews with Mr and Mrs S and Dr Vickers led Andersen/French to the view that Mr and Mrs S were committed, indeed zealous, in their efforts to ensure qualify care for Y, and that they would not knowingly or intentionally undertake action that would jeopardise Y’s health or well being. No further action is required on this matter.

10 On 8 July 1999 S’s solicitors sought an internal review of this decision requesting that the “notification” be deleted. By letter of 8 June 1999 to S’s solicitors, the agency consented to an extension of time to lodge this request. On 5 November 1999, S’s solicitors received a response from the agency. In summary that response emphasised that the Department “is not able to delete the records” but “accepts that the information that is currently on the CIS in relation to Y is incomplete and out of date in certain respects.” The Department went on to offer to amend the record so that it shows the correct information.

11 S applied to the Tribunal for a review of this decision on 5 August 1999. Section 53 of the FOI Act gives a person who is aggrieved by a determination made by an agency or Minister under s 43 the right to apply to the Tribunal for a review of that determination.

Findings of fact

12 On 25 February 1997 Greg Hale, Assistant Manager, Child and Family Services at Dapto, prepared a Notification Intake Summary identifying concerns about Y’s well being. The first page of that Intake Summary contains identifying details of Y and a brief outline of the his family structure. The person who notified Mr Hale of their concerns is blacked out and there is no need for me to make any findings about the identity of that person. The second page of the Intake Summary contains background information under the heading “Narrative”. The next heading, “Areas of Concern” contains the following passage:

What has become apparent to me after viewing, discussing the case and considering the information at my disposal is that there is a marked reported difference in the behaviour of Y between Departmental care and home care. There is also some supporting documentation suggestive that Y has been prescribed medication to assist his behaviour while in the care of his parents, but not available to the Department on an ongoing basis. This has become a contentious issue between the S’s and the Department’s disability service, as we have requested that the parents assist the Department in Y’s behavioural management by seeking medical intervention.

The major concern I have is that there is suggestive evidence that the parents have already received medical assistance for Y's behaviour while he is in their care and that this medical intervention has not been made available to the Department and therefore his behaviours in both settings are very different to a point where the Department is unable to manage Y’s behavioural outbursts, to ensure his placement is a safe environment. Effectively Y could be a child at risk because of his parent’s attitude in not allowing the Department access to this medication. The issue here could simply be put as “welling” (sic). If Y is medicated in the family home then he should also be receiving that medication while in departmental care.

As I understand things the Ss have asked that the Department not contact their doctor as they will be the conduit of information regarding Y’s medical management.

13 The following recommendation is made in the Intake Summary:

At this time this matter has been classified as an intake matter and I am referring it to both the Manager Illawarra South and the Area Manager for their consideration. I would recommend that this intake be classified as notification under section twenty two of the Child (Care and Protection) Act and be formally investigated by senior child protection staff.

14 On 27 February, Mr Hale generated a further Intake Summary which is directly related to the events of 21-23 February 1997 when S took Y to the doctor for a rash. Under the heading “Issue” in this notification, the following passage appears:

The issue raised relates to medical attention for Y and the prescription of medication while in his parents care for a severe and itchy body rash. This medication was given to Mrs S while Y was on home leave but was not passed onto the House staff on his return by the mother who indicated that the doctor had raised a concern about previous substance abuse (in the past) and she (Mrs S) was unable to leave medication at (the House), as antihistamines have sedative properties.

House documentation indicated that Y was observed to suffer discomfort due to the fact that he still had the rash on his return to the home and there is a note that his behaviour may have been a result of the discomfort.

Concern

There is a further concern raised as to the medical management of Y and the issue of “well being”.

15 Mr Hale recommended that the matter become a notification under s 22 of the Children (Care and Protection) Act 1987 and that it be investigated in conjunction with previous matters raised.

16 Although S’s statement dated 5 November 1999 only refers to the Intake Summary dated 27 February 1997 she did attach both Summaries to her statement and the hearing proceeded on the basis that she was requesting that both the 25 February document and the 27 February document be removed from the CIS system and the file.

17 Notification documents appear on the Client Information System (CIS) which is a computerised information system containing records of the agency’s clients in the areas of child protection and substitute care. Most child and family service field staff can access the CIS. No one outside the Department has access to the CIS.

18 Despite Mr Hale’s recommendations, neither of the matters was treated as a formal notification under s 22 of the Children (Care and Protection) Act 1987. The Intake Summaries were treated by the agency as “intake only” which means that no investigation involving attending at the child’s residence was undertaken. No outcome was recorded on the file or on the CIS system.

19 I turn now to consider some of the history leading up to the making of the two Intake Summaries.

20 On the weekend of 21-22 February 1997 (three days prior to the first Intake Summary) Y visited his parents. S took Y to see a Dr Ellacott on 21 February for a rash and was prescribed Phenergan tablets to be taken for 2 days and Aristocort cream. S returned Y to the group home on 23 February and left a note for one of the staff members letting her know about the rash, her consultation with the doctor and the treatment Y should receive. A more detailed account of these events is given in S’s statement dated 5 November 1999 from paragraphs 30 - 34. None of this evidence, nor indeed any of the factual material in S’s statement, was put in issue by the agency and I accept it.

21 The Tribunal also had before it a statement from Dr Ellacott filed on 4 November 1999 which supports S’s version of events. A statement from Dr Vickers dated 12 November 1999 provides relevant information in relation to Y’s behaviour and the medication he was prescribed.

22 S requested that the Department authorise an independent investigation into the problems she had been experiencing at the group home. Exactly when this occurred is not apparent from the evidence. A Departmental representative, Margaret Andersen, and an officer of the non-government organisation, People with Disabilities Inc, Phillip French, were asked to prepare a report in relation to a complaint lodged by S. The relevant findings for the purposes of this case are found on p 70 of the report:

While there were no notifications about medication recorded on the cited dates, it is clear that Departmental staff held genuine concerns about Y’s well being in relation to perceived differences in the permitted use of medication by his parents and by staff.

We have not however, in the course of the investigation, identified objective grounds to show that the concerns were valid. Our interviews with Mr and Mrs S and Dr Vickers led us to form the view that Mr and Mrs S are committed, indeed zealous, in their efforts to ensure quality care for Y, and would not knowingly or intentionally undertake action that would jeopardise his health or well being.

In our view the referral of this matter to Child and Family Services, without having attempted to resolve the matter by other means, reveals a clear lack of skill and judgement on the part of the Departmental officers concerned.

23 The evidence on which these conclusions were based can be found at pages 62-64 of the report. The report also explained the child protection procedures in place at this time:

Intake: the process of receiving and responding to the information reported and/or request for service. It involves recording the information received, making a preliminary assessment of the information, recommending an urgency rating and developing a plan of action for review by the supervising officer. One of the possible outcomes is notification.

A notification is the official recording of the allegation that because of abuse or neglect of the child, it may be in need of a care. The notification decision starts the process of investigation.

Parties’ submissions on accuracy of information

24 One area of disagreement between the parties was whether the information in the Intake Summaries was incorrect and misleading or merely incomplete and out of date. The agency admitted, in the letter of 8 July 1999, that the information was incomplete and out of date in certain respects. They also agreed to an annotation being placed on the file which reflected the Andersen/French finding that there were no objective grounds to show that the concerns raised in the intake document were valid.

25 The agency relied on Re Corbett and Australian Federal Police (5 AAR 291) to submit that there was no evidence in this case that the documents contain anything other than views which the author formed. In their submission, these views could not be changed to reflect someone else’s opinion. In support of this position the agency relied on a passage at p 292 where Deputy President Nicholson states that:

. . . it is apparent that there will be no evidence brought to the tribunal that the sentence the amendment of which is sought is other than an accurate record of what the author of the report concluded (it not being proposed to call the author).There is in the words of Resch (supra par 37) no relevant respect in which that information can be shown to be incomplete, incorrect, out of date or misleading. Consequently there is no proper basis for amending that record under Pt V of the FOI Act.

26 The facts in Re Corbett are readily distinguishable from the present case. The findings contained in the French/Andersen report, which are accepted by both parties, state that they were unable to identify any objective grounds to show that the concerns of Departmental staff about Y’s well being were valid. This is a very different situation from Re Corbett because the President in that case predicted that there would be no evidence that the opinions were based on incorrect facts.

The law on facts and opinions

27 Both facts and opinions can be amended under the Act. Opinions may be misleading if they are based on incorrect or incomplete facts. In Re Leverett ((1985) 8 ALN N135 at N 136) the Administrative Appeals Tribunal (quoting Gesell J in RR v Department of Army (1980) 482 F Supp 770 at 774) held that “the scope of an application to amend records is not to be confined to the area of factual misrepresentation as distinct from statements of professional opinion . . .” The Tribunal went on to say that “it would defy common sense to suggest that only factually erroneous assertions should be deleted or revised, while opinions based on these assertion must remain unaltered.” (See also: Re Resch and Department of Veterans’ Affairs 9 ALD 380; Re Cox and Department of Defence 20 ALD 499; and Re Jacob v Department of Defence 15 ALD 645 at 649.)

Tribunal’s conclusions about information in the documents

28 Based on all the evidence I am satisfied that there was no factual basis on which the opinions expressed in the Intake Summary documents could have been validly formed. This conclusion is supported not only by the Andersen/French report but by the statements of Dr Ellacott dated 12 November 1999, Dr Vickers dated 4 November 1999 and S dated 5 November 1999. The agency did not seek to cross examine any of these witnesses or adduce any evidence to challenge the assertions in their statements.

29 The opinions which were based on incorrect or non-existent facts are misleading because they suggest, among other things, that Y could be at risk because of his parents’ conduct. Consequently I am satisfied that the documents in question do contain information which is incorrect or misleading. My specific findings in relation to each of the documents are set out below.

30 In relation to the 25 February Intake Summary, the first page provides Y’s personal details and details of family structure. The majority of information on this page (page 1) is factually correct and not misleading. It is evidence of the fact that an Intake Summary was made on 25 February and contains factually correct details of the child and the family structure. The only information on this page which is incorrect or misleading is the note against “Primary issue” which reads “Family: well being concerns for child.” This comment is misleading because it suggests that there are genuine concerns about Y’s well being that are related to his family. The French/Andersen report and evidence from S and the two doctors establishes that these concerns are unfounded.

31 The second page of the 25 February Intake Summary contains material under the heading “Intake Assessment” The first paragraph sets out the author’s involvement in the matter. There is no evidence that any of this information is incorrect or misleading.

32 There is no evidence that the first sentence of the second paragraph is not factually correct. The remainder of the paragraph reflects the author’s understanding of the major “areas of information” being Y’s management in the group home and his management while in his parents’ direct care. These two sentences suggest that there are concerns about Y’s management while in his parents’ direct care and are misleading.

33 The third paragraph also refers to Y’s management while on home leave. Because it infers that there are concerns about his management at those times, this paragraph is misleading.

34 The last two paragraphs under the heading “Narrative” on page 2 relate to the sources of information on which Mr Hale has relied in preparing the Intake Summary. There is nothing in evidence which would satisfy me that these paragraphs are false or misleading.

35 All the information under the heading “Area of Concern” (most of which is quoted above at para 12) is incorrect or misleading. I am satisfied that there was no factual basis on which the opinions expressed under this heading could have been validly formed.

36 The recommendation at the end of the Summary is an opinion based on incorrect factual information and is misleading because it implies that there is sufficient cause for concern for the matter to be investigated.

37 The identity of the author of the Summary and his position is correct and is not misleading.

38 The second Intake Summary dated 27 February is not incorrect or misleading in relation to the child’s name and the notification date, or in relation to the sentence under “Intake Information.” The remainder of the information on that document is incorrect or misleading for the reasons set out above, apart from the name and position of the author.

Do the matters relate to S’s personal affairs?

39 One of the requirements of s 39 of the FOI Act is that the document contains information concerning the person’s personal affairs. Both parties agreed and I find that the information in the Intake Summary documents does concern S’s personal affairs and is available for use by the agency in connection with its administrative functions.

How should the documents be amended?

40 Given that the Intake Summaries are based on incorrect information and contains misleading opinions, how should they be amended? The applicant’s submission was that the whole document should be removed from the file and from the CIS system. The agency’s submission was that it should be left in tact but contain a notation in the form set out in paragraph 9 above.

Respondent’s submissions

41 The respondent submitted that the term “amendment” does not include deletion; it can only mean annotation, correcting or altering but leaving material intact.

42 In June 1997, the agency developed a policy on deletion of records which was reflected in a practice manual entitled Working with Children and Families. At section 13-13 reference is made to requests for deletion of electronic documents and/or destruction of paper documents involving child protection allegations. This policy provides for information to be removed or destroyed where it is:

• grossly inaccurate, that is where the information is substantially wrong or inaccurate, or
• where on assessment by the Department of Community Services the information was deemed to have a malicious intent, or
• the initial information did not meet the criteria for being accepted as a notification.

43 On 18 August 1998, the Acting Assistant Director-General, Policy and Planning advised all Area Managers in writing that the policy in section 13-13 of the Manual should be disregarded and that no applications for deletion of records should be made or invited from clients.

44 Currently a new policy is being prepared in relation to deletion of documents.

45 In their letter of 22 October 1998, the agency relied on recommendations from the Royal Commission in to the NSW Police Service (Paedophilia Reference) to support their view that no records can be deleted from the Department’s CIS. This submission was repeated orally at the hearing but the Royal Commission recommendations were not put before the Tribunal.

46 The respondent also submitted that removal of the record would mean that other documents in the file such as the French/Andersen Report and some of the correspondence between the applicant and the agency would make no sense.

47 The agency’s Practice Manual, “Working with Children and Families” describes the purpose of the CIS at 13.9:

The CIS is the primary management information system for the executive management team. It is an important accountability tool that enables the Director-General to account to the Minister and Parliament, on the activities of the Department in relation to Child and Family Services. . . .

Immediate access to accurate and historical information about clients allows for better informed decision making and planning when responding to the identified needs of a child or family.

Applicant’s submissions

48 S’s first submission was that, in accordance with the agency’s policy referred to in paragraph 42 above, it was open for Tribunal to find that the conduct of group home staff was malicious.

49 The applicant’s principle submission was that the documents should be deleted from the files and from the CIS system. In her view, the whole record is either based on incorrect facts or is misleading.

50 The applicant acknowledged that there may be an argument for keeping the notification on the file (and thus keeping intact the historical integrity of the file) if there had been an investigation of the notification and a decision. When the agency was considering the applicant’s original application for amendment and when conducting the internal review, it assumed that the document was a notification under s 22 of the Children (Care and Protection) Act. The letter of 23 July 1999 from the agency to S’s solicitor, seeks to justify the decision to refuse to delete the document on the basis that it is a s 22 notification. The agency has now agreed that it is not a s 22 notification. In S’s submission, leaving the document on the file does not serve any purpose because it is not a notification but an “unsubstantiated allegation”.

51 The applicant rejected the agency’s offer of an annotation as she believes it smacks of self justification. This term was used in Re Sime and Minister for Immigration and Ethnic Affairs 21 AAR 369 where Deputy President McDonald held that the only practical course in relation to statements of fact and opinion which were misleading and mistaken was to obliterate the offending passages. McDonald DP rejected the respondent’s offer of an annotation, in part because he considered the wording to be “self-justificatory.” The proposed wording included the following: “The respect in which the information is misleading is that it may, without so intending, give the impression . . “ (Words in brackets added).

Government policy

52 In relation to the policy document, Working with Children and Families, s 64 of the ADT Act states that:

In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy document in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

53 The agency did not seek to rely on their policy document, but S submitted that part 13-13 is the current policy of the agency even though it is not being applied. The evidence demonstrates that it is not the agency’s current policy. Consequently the Tribunal is not bound to apply it.

Meaning of “amendment”

54 The purpose of the amendment provisions in the FOI Act are set out in s 5(1)(b) which states that:

The objects of this Act are to extend, as far as possible, the rights of the public to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

55 The FOI Act does not define the word “amend.” The Macquarie Dictionary (3rd edition, the Macquarie Library Pty Ltd 1997) defines this term as “to remove or correct faults in; rectify”. Courts and tribunals have ordered passages to be obliterated and/or annotations to be added.

56 For example, in Bennett v University of New England (unreported 7 August 1991 District Court) Judge Dunford. ordered the University of New England to delete a handwritten notation which appeared on a two page letter.

57 In Re Sime (1995 21 AAR 369) the Administrative Appeals Tribunal (AAT) ordered deletion of comments which were found to be factually incorrect and an opinion which was based on these mistaken facts. The mistaken facts were basically that two professional health workers had colluded in the preparation of their reports. At p 376-377 the AAT stated that:

In the instant case, given the number of parties involved, that the identity of several parties is reasonably ascertainable, and the serious implications arising in the offending paragraph, the Tribunal is of the view that the only practicable course is for the record to be amended by obliterating the offending paragraph. In substitution thereof, a notation is to be made that the paragraph is amended by its deletion at the direction of the Tribunal, as it contains misleading and incorrect information pursuant to s 50(1) of the Act.

58 Courts and Tribunals have generally refused to interpret “amendment” as allowing the removal of an entire document from a file. In Cox and the Department of Defence (20 ALD 499 at 499-500) Deputy President Todd stated that the record may be amended by altering or adding a notation but not by removing a document:

I know of no case, and was referred to none, in which the tribunal has understood the power of “altering the record” (see s 50(1)) to include ordering the removal of a document or documents. . . . As will appear, I am not of the opinion that any of the documents should be removed even if a power so to direct should be found to exist. I consider that to do so would obscure the history of the matter and would in fact obscure a prima facie case that serious errors occurred . . .

Even accepting all of the criticisms made by the applicant of some of the reports, they would at the very least remain part of the story of the handling of the applicant’s situation, and would in all the circumstances need to be in the hands of anyone called on to give a report on the applicant’s medical condition and/or history.

59 When determining the manner in which a record should be amended the Tribunal should have regard to the implications for both the agency and the applicant of the various alternatives. In cases involving child protection issues, any decision made must be consistent with the best interests of the child.

60 In this case the implications for the agency if the Intake Summaries are removed from the file and the CIS system are that there will no longer be any record of the fact that these “notifications” were made. Other documents and correspondence on the file which refer to these documents would not make sense if the documents no longer exist.

61 The implications for the applicant of keeping both Summaries on the CIS system and the file are that concerns have been raised that she has put her child at risk. These are extremely serious matters which reflect adversely on S. There is no indication on the CIS system that the matter was investigated or resolved. Consequently the opinions expressed in the summaries remain on the record.

62 From Y’s point of view, the implications are that incorrect and unfounded information will be available to case workers if the summaries remain on the system in their current form. This may lead workers to make decisions which are not in his best interests.

63 I do not consider to be in anyone’s interests for the documents to be completely removed from the files. Removing the records entirely would destroy the historical fact that the Intake Summaries in relation to Y were prepared and lodged. In addition, there would be no record that the officer concerned completed two Intake Summaries which had no objective basis in fact.

64 The second option is for the documents to remain in tact and for an annotation to be added. In this case providing an explanation for the incorrect or misleading statements does not amend the record in a way which is consistent with the objects of the Act referred to above because it does not ensure that the information is correct.

65 In my view, there are no adverse implications for child protection practices if incorrect or misleading information is removed from files. In coming to this conclusion I have considered the agency’s argument set out in its letter to S of 23 July 1999.

. . . in order to run an effective child protection service, the Department has an obligation to document and keep track of any information they receive relating to children and possible abuse of children. If, after investigation of a notification, the Department is satisfied that it was unsubstantiated, the way in which this is dealt with is to add a notation, assessment or outcome to the CIS recording the results of assessment and inquires.

66 However, the Intake Summaries in this case were not treated as a notification and no outcome was recorded. Allowing the material to remain on the file in this form would not be in Y’s best interests, nor would it be fair to S given the serious nature of the concerns raised.

67 The third option, and the one which I favour in this case, is to remove or obliterate only the incorrect or misleading information and to add a notation explaining why the material has been removed. This approach is consistent with the objects of the Act and the ordinary meaning of amending a record which includes removing parts of the record that are incorrect or misleading. The remainder of the document can, if the agency so wishes, remain in tact. It is legitimate, for record keeping and accountability purposes, for the system to record that an Intake Summary has been made; the details of the child to whom it relates and the author etc.

68 As well as removing or obliterating the offending passages an annotation should be added to the system and the file explaining the reasons for the removal or obliteration of these passages. The annotation should not contain any self-justificatory or self serving statements. It is not a purpose of the amendment provisions of the FOI Act to apportion blame, to make findings about malice or whether officers held “genuine concerns” or not. If the information is incorrect or misleading then the annotation should explain the reason for its removal.

Orders

69 The decision of the Director General, Department of Community Services, not to amend the relevant records in the manner requested by the applicant should be set aside. The following decision is made in its place:

The two Intake Summaries dated 25 February 1997 and 27 February 1997 in relation to Y should remain in the CIS system and on the files but the passages identified as incorrect or misleading in paragraphs 30 to 38 of this decision should be obliterated or deleted from the record. An annotation in relation to each record should be provided on the CIS system and the paper files in the following terms:

The Administrative Decisions Tribunal has ordered that several passages in the following record be deleted or obliterated. These orders were made because the Tribunal found that those passages were incorrect or misleading and should be amended pursuant to the Freedom of Information Act 1989 .