Waite v Hornsby Shire Council

[2010] NSWADT 32

CITATION:	Waite v Hornsby Shire Council [2010] NSWADT 32
DIVISION:	General Division
PARTIES:	APPLICANT Peter Andrew Waite RESPONDENT Hornsby Shire Council
FILE NUMBER:	093073
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	24 July 2009
DATE OF DECISION:	2 February 2010
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Amendment of record
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Bennett v University of New EnglandCrewdson v Central Sydney Area Health Service [2002] NSWCA 345 Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296 Hayward-Brown v Wentworth Area Health Service [2000] NSWADT 46 Livermore v Tumbarumba Shire Council (No.2) [2008] NSWADT 172 RE Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219 Waite v Hornsby Shire Council [2009] NSWADT 117Z R v Department of Education and Training [2008] NSWADT 28
REPRESENTATION:	APPLICANT B Woolf, solicitor RESPONDENT I Woodward, solicitor
ORDERS:	The decision of the respondent is affirmed.

REASONS FOR DECISION

Introduction

1 Mr Waite made a request to the respondent, Hornsby Shire Council, pursuant to s. 39 of the Freedom of Information Act 1989 (‘the FOI Act’), to amend three documents he had obtained access to under that Act. The documents related to concerns he had raised about a development application, approved by Council, on the property which adjoined his property. It was Mr Waite’s contention that the documents in question contained information that was ‘incomplete, incorrect, or misleading’: see para 39(c) of the FOI Act.

2 The respondent agreed to amend the first document as requested. It also agreed to amend the date of the second document as requested. It refused to otherwise amend the second document and the third document as requested by Mr Waite.

3 Mr Waite sought review of the decision of the respondent to refuse to make the amendments he had requested be made to the second document and the third document. However, following a planning meeting, Mr Waite only pressed the decision of the respondent in regard to one amendment to the second document. That document was numbered D01028525. It is a letter written by Simon Evans, the Respondent’s Manager Assessments – Planning Division, to Mr and Mrs Waite about concerns they had raised in previous correspondence with the respondent about a development application for the property adjoining their property. The development application was one that was approved by the respondent.

4 At the planning meeting the parties also agreed that the matter should be determined by the Tribunal on the papers in accordance with s. 76 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

5 Of concern to Mr Waite was point 3 of the letter of Mr Evans in which he said the following:

‘3. Location of the detention tank

Comment: It is Council’s assessment that location and height of the detention basin wall will not unreasonably prevent the boundary fence from being repaired or upgraded.
It is also reasonable to assume that as the detention tank can be constructed from within the subject property any repairs or maintenance would also be carried out from with the subject property.

6 The amendment sought by Mr Waite is for a line to be drawn through the words “not unreasonably”.

7 The respondent refused to make the requested amendment on the basis that the matters raised in point 3 of the letter did not concern Mr Waite’s ‘personal affairs’ and even if it did the matters asserted in this point were the opinion of its author (Simon Evans) at the time he wrote this letter.

8 The right to seek amendment of an agency’s records is found in s.39 of the FOI Act, which provides as follows:

39 Right to apply for amendment to agencies’ record
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 a person’s opinion, incomplete, incorrect, out of date or misleading.

9 Section 44 of the FOI Act sets out the circumstances in which an agency may refuse to amend record as requested by the FOI applicant. That section provides:

44 Refusal to amend records

An agency may refuse to amend its records in accordance with an application:

(a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or

(b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or

(c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge.

10 Where an agency refuses to amend its record as requested, the FOI applicant may, pursuant to section 46 of the FOI Act, by notice in writing lodged with the agency, ‘require’ the agency to add a notation to the record in question. That notation is required to specify the respects in which the FOI applicant asserts the record is incomplete, incorrect, out of date or misleading and the information the applicant asserts is necessary to complete the record or bring it up to date. If such a request is made the agency is obliged to make the necessary notation and to ensure that it is given to any person to whom the record may be disclosed.

11 It is not disputed that the onus is on the respondent to satisfy the Tribunal that its decision to refuse to amend the letter as requested by Mr Waite was justified: see section 61 of the FOI Act and Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at [32], Hayward-Brown v Wentworth Area Health Service [2000] NSWADT 46 at [38] and Ferns v New South Wales Department of Corrective Services [2007] NSWADT 296 at [15] and Livermore v Tumbarumba Shire Council (No.2) [2008] NSWADT 172 at [49].

Personal affairs

12 The first issue to be determined is whether the information for which Mr Waite seeks amendment is information that concerns the ‘personal affairs’ of himself and his wife.

13 The term ‘personal affairs’ is not defined in the FOI Act. However its meaning in the context of the Act has been considered in a number of previous decisions of the Tribunal and elsewhere. A summary of these is found in an earlier application of Mr Waite in Waite v Hornsby Shire Council [2009] NSWADT 117 at [13] to [18] and [20] to [22]. It is unnecessary to repeat these.

14 In its written submissions the respondent acknowledges that the term ‘personal affairs’ should not be construed narrowly and should be given its ordinary meaning of matters of private concern to an individual: (see RE Williams and Registrar of Federal Court of Australia (1985) 8 ALD 219). The respondent goes on to say that the letter, apart from the person named as addressee and his address, does not refer to any matter that is personal to Mr Waite. It contends that the letter only concerns the development application for the neighbouring property and not Mr Waite’s property. Furthermore, the words Mr Waite seeks to have struck out do not relate to him or his property. It was information attaching to the property of a person other than Mr Waite and his wife.

15 At the same time the respondent acknowledged that details of Mr Waite’s property would fall within the description of being a matter concerning his ‘personal affairs’.

16 Mr Woolf, solicitor, on behalf of Mr Waite, noted that paragraph 39(a) of the FOI Act does not require all the information contained in the document for which amendment is sought to concern the applicant’s ‘personal affairs’: see ZR v Department of Education and Training [2008] NSWADT 28.

17 In my opinion, point 3 of the letter for which Mr Waite sought amendment does concern his personal affairs. While it does not expressly mention Mr Waite’s property, this point in Mr Evan’s letter is a response to concerns Mr Waite had previously raised in correspondence with the respondent (see Mr Waite’s letter of 14 October 2008 (at Annexure H of Mr Waite’s statement dated 23 July 2009) and point 5 of his letter 21 July 2008 (at Annexure C of Mr Waite’s statement) and his email of 3 October 2008 (Annexure F of Mr Waite’s statement)). From this correspondence it is clear that what was of concern to Mr Waite and his wife was their picket fence, namely the effect the positioning of the proposed detention retaining wall on the adjoining property would have on their ability to repair or replace their fence in the future. The development application placed the proposed detention retaining wall to run very close and parallel to Mr and Mrs Waite’s fence. Mr and Mrs Waiter’s concern, in my opinion, is a matter of private concern to them. As point 3 of Mr Evan’s letter specifically addresses this concern, the information for which Mr Waite seeks amendment is information concerning his personal affairs. This however, does not dispose of this application as it must also be shown that the information for which amendment is sought is also ‘incorrect’ or ‘misleading’.

Is the information incomplete, incorrect, out of date or misleading in a material respect

18 The words ‘incorrect’ and ‘misleading’ have been construed to mean ‘anything that is not in accordance with fact, or is erroneous or inaccurate’ and ‘leaving the wrong impression’: see Bennett v University of New England (unreported, NSW District Court, 7 August 1991).

19 It is well accepted that amendment provisions in the FOI Act are:

(a) only concerned with the accuracy of official records and not with the merits or legality of official action recorded therein and does not provide a vehicle for collateral review of the merits of that action: Crewdson (supra) at [24]; and


(b) not vehicle for the determination of disputed questions of opinion which were accurately recorded: see Crewdson (supra) at [19] and [34] and Ferns (supra) at [23]

20 Although point 3 of the respondent’s letter does contain information concerning the personal information of Mr Waite, the words which Mr Waite seeks to have a line drawn through is an opinion expressed by the author of the letter, Mr Evans. Mr Waite does not contest that the letter accurately records the opinion held by Mr Evans at the time he wrote the letter. The essence of his argument is that the opinion is incorrect and not one that could reasonable be held having regard to the information that was available to him at the time. In support of this Mr Waite has annexed to his statement a copy of the plan showing location of the detention retaining wall and photographs of his fence (see Annexure N and O).

21 In my opinion, Mr Waite’s contentions go to the merits of Mr Evan’s opinion and not whether the opinion as stated was accurately expressed. Hence, to make the amendment requested by Mr Waite would be to re-write history. Accordingly on the basis of the material before the Tribunal, I agree with the contentions of the respondent that the letter of Mr Evans, in particular point 3 of the letter, is not ‘incomplete, incorrect, out of date or misleading in a material respect.’

22 Mr Waite could nevertheless request a notation be made to the document under section 46 of the FOI Act.

Conclusion

23 For the reasons set out above, in my opinion the decision of the respondent is the correct and preferred decision and I order that the decision be affirmed.