Searle and Secretary, Department of Family and Community Services - [2000] AATA 371

DECISION AND REASONS FOR DECISION [2000] AATA 371

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1996/908

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ROBYN JOY SEARLE      Applicant
            And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal K L Beddoe (Senior Member)

Date15 May 2000
PlaceBrisbane

Decision The Tribunal decides: (a) the decision under review is set aside; (b) the matter is remitted to the respondent for reconsideration taking into account the following directions: (i) the Medical file documents are to be amended by removing all documents relating to the medical assessment from that file and placing them on the Compensation file; (ii) the Compensation file is to be annotated as follows: "The folios contained herein have been amended in accordance with Part V of the Freedom of Information Act 1982. The Administrative Appeals Tribunal directed on 15 May 2000 that as the referral for a Medical Assessment was outside guidelines, the information received as a result of this process may be seen to be misleading, the documents should be amended and should not remain in their present form. The amendment has been given effect by the removal of the documents from the Medical file of Robyn Joy Searle to this Compensation file as directed by the Tribunal." ; and (iii) copies of the applicant's statement dated 12 October 1999 are to be placed on the Compensation file and the Rehabilitation Case Management file.

Decision No. 371/2000 (Sgd) K L Beddoe
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION : Amendment of records – Annotation of records – Personal information

Freedom of Information Act 1982 – s4(1), s48, s50, s51, s51A(c), s55(1)(g), s55(6), s61

Re Applicant and Department of Education and Training, Children's Youth and Family Services (1998) 53 ALD 509
Re Cox and Department of Defence (1990) 20 ALD 499
Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369

REASONS FOR DECISION

15 May 2000 K L Beddoe (Senior Member)

The applicant seeks review of a decision dated 11 September 1996 made by the then Department of Social Security ("the Department"). The decision affirmed the refusal by the department to amend or annotate the records of personal information concerning the applicant and in particular the records on the applicant's Compensation file, Rehabilitation Case Management file and Medical file ("the files") to which she had obtained access under the Freedom of Information Act 1982 ("the Act").
At the hearing the applicant appeared in person and Mrs Guthrie appeared for the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and written submissions were made both by the applicant and the respondent.
Section 48 of the Act provides:
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c)an amendment; or
(d)an annotation;
of the record of that information kept by the agency or Minister.

"Personal information" is defined in subsection 4(1) of the Act to mean information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
"Agency" is defined in subsection 4(1) of the Act to mean a Department or a prescribed authority. There was no dispute before the Tribunal that the Department of Social Security is an agency for the purposes of the Act.
Subsection 50(1) relevantly provides that where the agency is satisfied that:
(a)the record of personal information to which the request relates is contained in a document of the agency; and
(b)the information is incomplete, incorrect, out of date or misleading; and
(c)the information has been used, is being used, or is available for use by the agency for an administrative purpose;
the agency may amend the record of information.

The agency may make the amendment by altering the document to make the information complete, correct, up to date or not misleading or by adding a note:
(i)specifying the respects in which the agency is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii)in a case where the agency is satisfied that the information is out of date – setting out such information as is required to bring the information up to date (subsection 50(2)).

Any record that is amended must not obliterate the text of the record as it existed prior to the amendment (subsection 50(3)).

Section 51 of the Act relevantly provides that:
(1)Where an agency decides not to amend a document in accordance with an application under section 48, the agency must:
(a)take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and
(b)…annotate the document concerned by adding to it the statement so provided.

In so far as is relevant section 55 of the Act provides that application may be made to this Tribunal for review of:
(1) …
(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48;…
(6)The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
(a)…; or
(b)…; or
(c)the amendment relates to a record of an opinion to which neither of the following applies;
(i)the opinion was based on a mistake of fact;
(ii)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.

Removing the double negatives this means that the Tribunal may only decide to require an amendment of a record of an opinion when the Tribunal finds as a fact that either (i) or (ii) (or both) apply in the particular case.

Section 61 of the Act provides that the agency, in this case, the respondent has the onus of establishing that a decision given in respect of a request was justified or that the Tribunal should give a decision adverse to the applicant.
However, subsection 55(6) of the Act has the effect of requiring the applicant to provide evidence that establishes a factual basis on which the Tribunal could base a finding that a relevant provision of the subsection has not been satisfied. Failure to do this means the Tribunal will be unable to be satisfied that the provisions of the subsection have not been satisfied.
It is an evidential onus which requires the applicant to establish at least a prima facie case that a relevant condition has not been satisfied. The onus will then shift to the respondent to satisfy the Tribunal, on the balance of probabilities that subsection 55(6) applies. It is the respondent who has the overall onus of showing that the document should not be amended and it is for the respondent to satisfy the Tribunal that subsection 55(6) applies to preclude amendment once the applicant has raised a prima facie case to the contrary.
Background
Exhibit A is a statement made by the applicant detailing events which led to her request for annotation and amendment of records held on her Compensation, Rehabilitation Case Management and Medical files. Each of these files contain information which is personal to the applicant. The folios which are referred to form part of Exhibit A.
In essence, the factual background can be summarised as follows.
The applicant was employed at the Aitkenvale Office of the Department of Social Security (now Centrelink) performing duties at the ASO1 and ASO2 level in the Unemployment and Sickness Benefits ("USB") area.
At the end of February 1990 a decision was made by Centrelink to reduce the number of ASO2 positions from four to two (folio 54-97). The USB area was subsequently separated into the New Claims section and the Continuations section (folio 37).
A further ASO2 position was withdrawn in July 1990 (folios 74 and 75). The applicant as an ASO2 trained supernumerary was one of two officers who supported the one remaining ASO2 USB position (folios 76 and 77) until 6 August 1990, when the applicant was placed on higher duties in the one remaining USB ASO2 position. (An ASO2 trained supernumerary is someone who is an ASO1 officer that is trained in ASO2 duties). The applicant remained in this position until the end of November 1990 (folio 94) when the applicant applied for sick leave and initiated a compensation claim.
The applicant seeks amendment or annotation of personal information records relating to this claim that are held on the Agency files.
On 25 November 1995 the applicant wrote to the Freedom of Information Officer for Centrelink requesting removal, amendment and annotation of folios contained on her files (T4) stating the reasons for such removal, amendment and annotation.
The FOI Officer replied by letter dated 15 December 1995 (T5) advising the applicant that her Compensation file was held by Comcare and that they should be contacted in relation to the applicant's request. In relation to the applicant's medical file, the officer recommended that contact be made with the Personnel Unit pursuant to section 15A of the Act. Some requested amendments were made to the applicant's Rehabilitation Case Management file pursuant to section 51B of the Act.
The applicant requested internal review of the decision by letter dated 20 June 1996 (T6). Document T7 is a letter dated 11 September 1996 advising that the decision of 15 December 1995 to refuse amendments was confirmed but her request for amendments and deletions was added to the file.
Document T8 is a request dated 28 October 1996 made by the applicant to the Personnel Manager at Area North Queensland for copies of folios from her files. By letter dated 15 November 1996 (T9) the FOI Officer, Area Management North Queensland advised that folios in regard to the applicant's Medical file and Rehabilitation Case Management file would be released in full as per the applicant's request. In relation to the applicant's Compensation file all folios were released for the requested period 1 January 1994 to the date of the decision (15 November 1996) with deletions. The applicant's Personnel file was released in full except for folio 252 which was released in part.
The applicant's request for amendment arose out of these records which she had obtained under the Act and are the subject of these proceedings. The applicant is seeking amendment or annotation of these records in accordance with prior administrative decisions of two grievance complaints (folio 7 and 36) internal to Centrelink and one decision of the Merit Protection and Review Agency ("MPRA") (folio 39). Investigations carried out found that documents should be amended (folio 39) and, in some cases, either withdrawn (folio 7) or destroyed (folio 36). In this proceeding it is not for the Tribunal to decide whether documents should be removed from files or destroyed. The basis on which the Tribunal may review a decision concerns amendment or annotation of records (section 55(1)(g)) and will be determined accordingly.
The Contentions
Folio 19 of Exhibit A is a file note by Helen Rowe, an employee of Comcare. The respondent contends and the applicant accepts that this document does not appear on the files which are the subject of this review. Strangely the respondent further submits that it would be inappropriate for the Tribunal to make an order amending this document when the original remains unamended on Comcare's files. I say this is strange because the respondent first contended the document was not on the Department's files.
The Tribunal accepts that Comcare is the correct agency regarding this document and the applicant should make application directly to Comcare. I would note here that the Grievance Investigating Officer (folio 13) found that there was no direct evidence to support Mr Shortell's comments and that the statement should be withdrawn.
The folios regarding the applicant's Rehabilitation Case Management file form part of Exhibit A and I make reference to them accordingly.
The applicant contends that folios 20-35 of the Rehabilitation Case Management file should be amended, annotated or removed. As stated previously section 50(1) of the Act grants a power to amend or annotate the documents and the decision of the Tribunal will be made on this basis. In any event I am not satisfied that it would be appropriate to remove any of the documents even if there was power to do so. The applicant does not dispute that the records contained in this file are correct and complete records of conversations recorded between certain officers. It is the substance of the factual information that is in contention.
The respondent contends that opinions in these folios should remain unamended (even if they are wrong) as any attempt to amend the information would rewrite the history and record of the manner in which the Department dealt with the applicant. The respondent further submits that there is no evidence before the Tribunal that records are incomplete, incorrect, out of date or misleading as to their contents.
The applicant's request concerning her Medical file relates to folios 1-83, 97-98, 124-127, 129-130, 133-139, 140-141, 143-151, 153-158, 190-192, 203, 204 and 214-218 of this file. The basis for the applicant's contention is the MPRA finding on 6 May 1994 (Exhibit A, folios 39-40) which stated that "the referral for a Medical Assessment was outside the guidelines for Fitness for Continued Duty ("the guidelines") which were in operation at the time the decision was made." The applicant submits as a consequence of this finding, records should be removed from her Medical file to her Compensation file (folios 84, 87-96, 99-123, 128, 131-132, 142, 152) and further folios relating to her internal grievances findings be removed to the grievance files created for that purpose.
The respondent submits that the findings of the MPRA are not binding on the Department and that the folios in question form part of the record as to how the Department dealt with the applicant. The Department contends that removal of records that have been duplicated or placed on the incorrect file should not occur and that these records should remain in their present form.
In regard to the applicant's Compensation file it is not entirely clear what the applicant submits. It is assumed that the applicant contends that folio 53 of Exhibit A should be amended or annotated for the same reasons as stated previously. The respondent submits there is no basis for amendment and relies on previous submissions.
Both parties in submissions relied upon Re Cox and Department of Defence (1990) 20 ALD 499. The case is authority for the proposition that in making a decision as to whether to amend or annotate a document in accordance with section 50(1) of the Act, what is significant is that it is the record of information that may be amended, not the information itself. The respondent submitted that according to Re Cox the fact that the information is incomplete, incorrect etc is not what is important, but rather whether the record of that information is a complete/correct record that is of importance. The applicant in contrast submitted that the case held that the fact that information is incomplete, incorrect, out of date or misleading is important and that documents should be amended on this basis.
Consideration
Rehabilitation Case Management File
In regard to firstly, the folios concerning the applicant's Rehabilitation and Case Management file, I am satisfied that the applicant has raised a prima facie case for amendment or annotation of the relevant folios. The applicant has produced detailed evidence, contrary to the respondent's submissions, that the records are incomplete, incorrect, out of date or misleading. An example of this is folio 15 of Exhibit A. This is a report by an investigating officer of the Department dated 9 October 1991 concerning a grievance lodged by the applicant. It was found that this record (at folios 20-21) was factually incorrect.
The respondent relies on Re Cox (supra), submitting that this case allows for records to remain unaltered even if they are incorrect as any attempt to correct them would be rewriting history. I do not agree that this is what Deputy President Todd was alluding to. Instead I think the more reasonable approach to take is that the Tribunal in this instance was discussing the most appropriate form of amendment to be made to documents that were incomplete/incorrect etc if only because of the passage of time. Re Cox also suggests that opinions expressed at the time in their contextual and situational environment may need opinions inserted into the record at a later date if it is indicated that the earlier records may be incomplete/incorrect etc. This is extremely important where these opinions form part of the record which is available for use by the agency for administrative purposes and are likely to be used in the determination of rights. This is what has occurred in relation to the applicant.
By refusing to amend or annotate records, the Department has allowed information which is manifestly incorrect to remain on record. Information contained on these records are unsubstantiated allegations that were not subsequently investigated by the Department. By not allowing amendment or annotation the records would establish an unreliable picture to any later reader of the documents.
I do not accept that any amendment or annotation of these records would obliterate the text or rewrite its history. In response to the respondent's contention that records written at the time are complete and correct records of the opinions held by the person who made them, the Tribunal in Re Cox (supra) said at 502:
"…an opinion is just that, and that the records were complete and correct records of the opinions held by the person who made them. That does not, however, detract from the fact that such opinions may be overtaken by events and thus be out-of-date; that the facts upon which those opinions were based may have been incorrect or incomplete; and that as a result the expression of the opinions, however bona fide they may have been when they were written may now have to be seen to be so flawed as to be misleading for the purpose of present resort to them."
More importantly, records of opinion concerning the applicant have been made by a person or persons not qualified to give such opinion (folios 20-22) satisfying section 55(6)(c)(ii). Mistakes of fact (section 55(6)(c)(i)) occur at folios 22-32. In particular the Health Assessment Report at folio 27-32 was found to be outside guidelines and should never have been created. (This will be discussed in regard to the applicant's Medical file). It would be an oversight on the part of the Tribunal not to allow these folios to be amended. The Tribunal in Re Applicant and Department of Education and Training, Children's Youth and Family Services (1998-99) 53 ALD 509 at 524 said:
"Where an opinion, even an expert opinion, is based on facts that are shown to be wrong or misunderstood, it is clear that the opinion cannot be allowed to stand as correct information. Even before the amendments to the FOI Act (Cth) to which I have referred, it was established that such an opinion might be corrected by the procedures of Pt V of the FOI Act (ACT). In Re Leverett, the Commonwealth tribunal cited Gesell J in RR v Department of the Army:
"It would defy common sense to suggest that only factually erroneous assertions should be deleted or revised, while opinions based solely on these assertions must remain unaltered in the individual's official file. An agency may not refuse a request to revise or expunge prior professional judgments once all the facts underlying such judgments have been thoroughly discredited. This position is reinforced in the Act's legislative history, where there are clear indications that insidious rumours and unreliable subjective opinions as well as simple factual misrepresentations fall within the ambit of the Act's strictures."
…I see no reason why an opinion should be allowed to stand as correct if the principal factual support for the opinion is shown to be erroneous unless it appears that same opinion would have been given if the author of the opinion had not relied on the discredited facts."

In regard to the removal of documents from the applicant's file, I would think that it would be in the interests of the applicant to have the whole picture on file and for that reason the documents should remain on file. In any event I am not satisfied that the Tribunal has power to direct removal of documents. That is not to suggest that material in a document cannot be deleted (Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369).
When considered as a whole, I am satisfied that the Department should amend or annotate the records of information (folios 20-35 of Exhibit A). If amendment is not the preferred method it is appropriate that the agency take reasonable steps to enable the applicant to provide a statement of the kind mentioned in section 51A(c) of the Act in accordance with section 51 of the Act and annotate the documents concerned by adding to them the statement so provided in order to bring this matter to finality.
Medical File
The applicant requests folios to be removed from her Medical file and placed on her Compensation file as a result of an MPRA finding. As I have said previously the Tribunal should not consider removal of documents per se, even if appropriate. The folios the subject of removal include records that may be duplicated on the applicant's Compensation file. I am not satisfied that the fact of duplication of records is a ground for deletion of the duplicated records.
The circumstances surrounding these folios are such however that removal to the Compensation file would be the correct course of action. The MPRA found that the referral for a Medical Assessment was outside the guidelines which were in operation at the time the decision was made. The applicant had made a compensation claim and the guidelines establish that when such a claim is lodged, claimants should be treated as compensation cases.
The MPRA acknowledged that the Department felt it was necessary to gain medical information on the applicant. However the MPRA found that a referral by using the Medical Assessment process was not appropriate as the applicant had a compensation review pending determination. The MPRA said at folio 41 of Exhibit A:
"As the referral for a Medical Assessment was outside guidelines, the information received as a result of this process can be deemed to be misleading and therefore should not remain in its present form."

I understand this to mean that because the Department did not comply with procedural requirements, documents created and placed on the applicant's Medical file may be seen to be misleading. I am not satisfied that is in fact the case but I should take into account and give weight to the MPRA finding. Removal of the documents to the Compensation file will deal with the point made by the MPRA.

Even though the Department contends the recommendations of the MPRA is not binding, I am satisfied considerable weight should be given to a report of such an independent and objective agency. Therefore I am satisfied that the most appropriate course of action to take is, in light of the recommendation of the agency, that all records relating to Medical Assessment should be removed from the Medical file and placed with the Compensation file and annotated as follows:
"The folios contained herein have been amended in accordance with Part V of the Freedom of Information Act 1982. The Administrative Appeals Tribunal directed on 15 May 2000 that as the referral for a Medical Assessment was outside guidelines, the information received as a result of this process may be seen to be misleading, the documents should be amended and should not remain in their present form. The amendment has been given effect by the removal of the documents from the Medical file of Robyn Joy Searle to this Compensation file as directed by the Tribunal."

Compensation File

In regard to this file and the requested amendment or annotation I am satisfied for the reasons stated previously that this record should be further annotated. The annotation is to be given effect by attaching to the file a copy of the applicant's statement dated 12 October 1999. The same annotation is to be placed on the Rehabilitation Case Management file.
The decision under review is set aside and the matter remitted to the respondent for reconsideration in accordance with the following directions:
(a)all documents on the Medical file are to be removed and placed on the Compensation file;
(b)the Compensation file is to include the annotation set out in paragraph 44; and
(c)copies of the applicant's statement dated 12 October 1999 are to be placed on the Compensation file and the Rehabilitation Case Management file.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member.
Signed:
  T G Lowther
  Associate
Dates of Hearing  24 November 1998 and 15 October 1999
Date of Decision  15 May 2000
Representative of the Applicant  In person
Representative for the Respondent        Mrs Guthrie