"WAU" and CEO, Commonwealth Services Delivery Agency (Centrelink) - [2001] AATA 863

DECISION AND REASONS FOR DECISION [2001] AATA 863

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/79

GENERAL ADMINISTRATIVE DIVISION       )
           Re      "WAU"
  Applicant
           And    CHIEF EXECUTIVE OFFICER, COMMONWEALTH SERVICES DELIVERY AGENCY (CENTRELINK)
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Senior Member

Date15 October 2001
PlacePerth

Decision      The decision taken to have been made by the respondent pursuant to s56(1A) of the Freedom of Information Act 1982 ("the FOI Act"), refusing to amend the record of personal information as requested by the applicant on 4 January 2000 pursuant to s48 of the FOI Act, is affirmed.
  ...........(sgd S D Hotop)..........
  Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – applicant requested amendment of record of personal information – whether document of agency contains record of personal information – whether record of personal information incorrect or misleading

Freedom of Information Act 1982 ss 4(1), 48, 50, 51, 51A, 51B, 55, 56, 61

REASONS FOR DECISION

15 October 2001 Associate Professor S D Hotop, Senior Member

Background

By letter dated 4 January 2000 addressed to the Freedom of Information Officer, Centrelink Compliance Office, "WAU" ("the applicant") made a request, pursuant to ss48 and 49 of the Freedom of Information Act 1982 ("FOI Act"), for an amendment of a document of Centrelink on the ground that that document contained personal information about him that was "incorrect and misleading". That document is headed :
"IN CONFIDENCE
RETIREMENT UNDER SECTION 76W OF THE PUBLIC SERVICE ACT – MEDICALLY UNFIT
REASONS FOR DECISION"

and is signed and dated as follows:

"Roger Plant
DELEGATE OF THE CHIEF EXECUTIVE OFFICER, CENTRELINK
4 October 1999".

The information contained in that document which the applicant claimed is
"incorrect and misleading" comprises the following 2 paragraphs.

"…

['WAU'] has sought investigation of several workrelated complaints describing these ongoing work difficulties through the Public Service regulation grievance review mechanisms. This has provided formal examination of these grievances by Centrelink and by the Merit Protection and Review Agency (MPRA). However, ['WAU'] is clearly not prepared to accept the outcome of these reviews, the final of which (by the MPRA) found at 9 July, 1999 that his grievance complaints were not sustained.
['WAU'] has tendered several medical certificates since the decision by the MPRA that his grievances were not sustained and which attest to his continuing unfitness for duty, demonstrating that his medical circumstances have not resolved despite the formal resolution of his work related difficulties.
…".

The applicant requested that those paragraphs be deleted from the document ("the first request").

In his abovementioned letter of 4 January 2000 the applicant made a further, more general, request as follows :
"Given that there has never been an investigation in accordance with Public Service Regulations 82, 83 or 84, I request that every reference to the opinion that I have sought, or have been the recipient of an investigation in accordance with Public Service Regulations 82, 83 or 84 is deleted from all Centrelink documents.
For the purposes of s.49(b)(i) these documents are specifically identified as all documents originated by Centrelink since March 1999, when Centrelink commenced it's illegal 'inquiry' in breach of Public Service Regulations."

("the second request").

By letter dated 11 February 2000 Ms E Greif, Freedom of Information Officer, Centrelink Compliance Office, notified the applicant that she had decided under s50 of the FOI Act to refuse his "request for an amendment of (his) personal record".That decision, in terms, clearly referred to the first request but did not refer to the second request.
On 14 March 2000 the applicant lodged with the Tribunal an Application for Review of the decision of 11 February 2000.
On 16 March 2000 the applicant lodged with Centrelink a request for an internal review of the decision of 11 February 2000. He enclosed with that request a document setting out in detail his reasons for requesting the internal review.
By letter dated 13 April 2000 Mr I Guthrie, FOI Review Officer, Centrelink Compliance Office, notified the applicant that he had decided to "uphold" the decision of 11 February 2000. Mr Guthrie added, however, that he had arranged for the abovementioned document, which set out the applicant's reasons for requesting the internal review of the decision of 11 February 2000, to be attached to the applicant's personal file. He added :
"…..this is in effect an amendment to your file, and your concerns about inaccuracies have been documented and prominently profiled."

The applicant has not lodged with the Tribunal an Application for Review of the internal review decision of 13 April 2000.
The Application for Review, lodged by the applicant with the Tribunal on 14 March 2000, relates only to the matter of the "deemed refusal" of the second request by reason of the failure to determine that request in the decision of 11 February 2000: see s56(1A) of the FOI Act (below).
At the hearing of this matter before the Tribunal, the applicant appeared in person without representation, and the Chief Executive Officer, Commonwealth Services Delivery Agency (Centrelink) ("the respondent") was represented by Mr S Ellis, a Centrelink advocate. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and various documentary exhibits tendered by the applicant (numbered A1-A20), and an affidavit of Evlyn Greif, sworn on 8 November 2000, tendered by the respondent (numbered R1). Oral evidence was given by Roger James Plant. There were no other witnesses.
The Ambit of the Second Request
At the hearing the applicant limited the second request to the passages from the following documents which are quoted below :

Letter (undated) from the respondent to the applicant (Exhibit A13)
"You have commented on Centrelink's examination of the grievances which you lodged and which were accepted as valid within the meaning of the Public Service Regulations."
"Your grievance was investigated in accordance with the relevant 'grievance regulations' (Regulations 75 to 83)."
"Your grievance matters were accepted as valid within the meaning of Regulation 82 by Roger Plant."

Letter dated 7 May 1999 from Roger Plant to the applicant (Exhibit A11)
"You wrote to Mr Perryer on 21 March, seeking detailed answers to 26 questions: and I advised him on 13 April that I had considered the issues you had raised in those questions and did not believe that they were relevant to the matters substantively identified in your grievance, other than as indicative of the direction which you believed he should pursue."
"I believe that this decision addresses the substantive matters of your grievance."

The applicant submitted that he did not lodge a grievance under reg 83 of the Public Service Regulations and that no investigation was conducted under that regulation, and that, accordingly, the above-quoted passages are incorrect and misleading. He sought to vary the form of the second request by requesting that the words "This statement is untrue" be added or appended to each of the above-quoted passages in the abovementioned documents.
The Evidence of Roger Plant

Mr Plant is the Human Resource Manager with Centrelink in Western Australia. He told the Tribunal that the applicant had written 2 "letters of complaint" to the respondent in November and December 1998, which he (Mr Plant) regarded as falling within the "grievance provisions" in the Public Service Regulations. He said that the respondent had delegated to him the function of accepting and investigating grievances under the Public Service Regulations and he proposed to the respondent that he deal with the applicant's letters of complaint as such. He added that the respondent approved that proposal and he then "entered into a process of addressing [the applicant's letters of complaint] under the grievance provisions."
Mr Plant was referred by the Tribunal to the 3 passages from the respondent's letter (undated) to the applicant quoted in paragraph 10 above. He confirmed that each of those passages was factually correct.
The Relevant Legislation
The relevant provisions of the FOI Act are as follows :
"Part V— AMENDMENT AND ANNOTATION OF PERSONAL RECORDS
Application for amendment or annotation of personal records
48 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.
…
Amendment of records
50 (1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; 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 or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
Annotations of records etc. following unsuccessful applications for amendments of records
51 (1) Where an agency or Minister decides not to amend a document or official documents (sic) wholly or partly in accordance with an application under section 48, the agency or Minister 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) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.
(2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.
Requirements of an application for annotation
51A An application for annotation must:
(a) be in writing; and
(b) as far as practicable, specify the document or official document containing the record of personal information that is claimed to require annotation; and
(c) be accompanied by a statement by the applicant that specifies:
(i) the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(ii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iii) the applicant's reasons for so claiming; and
(iv) such other information as would make the information complete, correct, up to date or not misleading; and
(d) specify an address in Australia to which a notice under this Part may be sent to the applicant; and
(e) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).
Annotation of records
51B(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister (as the case may be), the agency or Minister must annotate the document or official document by adding to it the statement provided by the applicant under paragraph 51A(c).
(2) Subsection (1) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
…
PART VI – REVIEW OF DECISIONS
…
Internal review
54(1) …
…
Applications to Administrative Appeals Tribunal
55(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
…
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
(2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
…
(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) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); 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.

Application to Tribunal where decision delayed
56(1) …
(1A) Subject to this section, where:
(a) an application has been made to an agency or Minister under section 48; and
(b) a period of 30 days, in relation to the application, mentioned in section 51D has expired since the day on which the application was received by or on behalf of the agency or Minister; and
(c) notice of a decision on the request has not been received by the applicant;

the principal officer of the agency or the Minister is, for the purpose of enabling an application to be made to the Tribunal under section 55, taken to have made, on the last day of that period, a decision refusing to amend or annotate the record of personal information to which the application relates.
…
Onus
61(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.
…".

The phrase "personal information" is defined in s4(1) of the FOI 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".

Consideration and Findings

The applicant made extensive written submissions in support of his Application for Review. The essential point he sought to make in those submissions was that his relevant letters to the respondent in November and December 1998 did not constitute the lodgment of a grievance under reg 83 of the Public Service Regulations or a request for an investigation under that regulation, and that the statements in the letters from the respondent and Mr Plant quoted in paragraph 10 above, which (he claimed) indicated that such a grievance was lodged by him and was subsequently investigated under reg 83, were untrue.
The first matter which must be determined for the purposes of s48 of the FOI Act is whether the abovementioned documents contain "personal information" (as defined in s4(1) of the FOI Act) about the applicant. There is no dispute about that matter in this case and the Tribunal finds that those documents do contain "personal information" about the applicant.
The matter which is in dispute is whether that information is "…incorrect,… or misleading", within the meaning of para (a) of s48 of the FOI Act.
The Tribunal finds that none of the passages in the relevant documents quoted in paragraph 10 above is "incorrect" or "misleading", within the meaning of para (a) of s48 of the FOI Act. On the contrary, each of those passages is factually accurate, as confirmed by Mr Plant in his oral evidence. The factual accuracy of each passage may be explained as follows :

Letter (undated) from the respondent to the applicant (Exhibit A13)
The first relevant passage does not state that the applicant lodged a grievance under reg 83 of the Public Service Regulations. It refers merely to "the grievances which [the applicant] lodged…". The word "grievance" is defined in The Macquarie Dictionary to mean :
"a wrong, real or fancied, considered as grounds for complaint".
The applicant's 2 relevant letters to the respondent in November and December 1998 were letters of complaint and their receipt by the respondent did, therefore, constitute the lodgment of "grievances" (as that word is generally understood). The passage then goes on to state that those "grievances … were accepted as valid within the meaning of the Public Service Regulations". That statement, as confirmed by Mr Plant in his evidence, accords precisely with the facts (of which he has first-hand knowledge).
Likewise, the second relevant passage, as confirmed by Mr Plant in his evidence, accords precisely with the facts (of which he has first-hand knowledge).
The third relevant passage is also factually accurate, for the same reasons as were given above in relation to the first passage.
Letter dated 7 May 1999 from Roger Plant to the applicant (Exhibit A11)
The only parts of the 2 relevant passages in this letter that the applicant submits are incorrect are the references to "your grievance" in those passages. For the reasons already given in relation to the relevant passages in the respondent's abovementioned letter, those references are factually accurate. The Tribunal notes in this connection that Mr Perryer, by letter dated 8 March 1999 (Exhibit A8), informed the applicant that he had been asked to conduct an inquiry into "the grievance" which he had "lodged" and that his role would be to establish the facts surrounding "your grievance" , and that in his reply letter of 21 March 1999 (Exhibit A10) to Mr Perryer the applicant did not query Mr Perryer's reference to the "grievance" which he had "lodged" and, indeed, went on to pose 26 questions "(t)o assist [Mr Perryer] in [his] endeavour to establish the facts".

Accordingly, the Tribunal finds that the relevant "personal information" about the applicant contained in the respondent's undated letter to the applicant (Exhibit A13) and in Roger Plant's letter to the applicant dated 7 May 1999 (Exhibit A11) is not "incomplete, incorrect, out of date or misleading", within the meaning, and for the purposes, of s48 of the FOI Act.
It follows from that finding that the second request should not be granted.

Decision

For the above reasons the decision taken to have been made by the respondent pursuant to s56(1A) of the FOI Act, refusing to amend the record of personal information as requested by the applicant on 4 January 2000 pursuant to s48 of the FOI Act, is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Senior Member
Signed:
................................(sgd S Railton)...............................
Associate
Date/s of Hearing  22 November 2000 and 21 February 2001
Date of Decision  15 October 2001
Counsel for the Applicant        In person
Solicitor for the Applicant
Counsel for the Respondent    Mr S Ellis
Solicitor for the Respondent    Advocacy and Admin Law Team, Centrelink

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"WAU" and CEO, Commonwealth Services Delivery Agency (Centrelink) [2001] AATA 863

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