CITATION: Waite v Director General, Department of Local Government [2004] NSWADT 11 revised - 20/02/2004 DIVISION: General Division APPLICANT PARTIES: Peter Andrew Waite RESPONDENT Director General, Department of Local Government FILE NUMBER: 033136 HEARING DATES: 15/08/2003 SUBMISSIONS CLOSED: 09/16/2003 DATE OF DECISION: 01/16/2004 BEFORE: Higgins S - Judicial Member APPLICATION: amendment of documents - Freedom of Information Act - amendment of documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT I Ratcliff, solicitor ORDERS: The determination of the Department in respect of the amendments, requested by Mr Waite, to document No 243 and 69 be varied in accordance with the terms of this decision BACKGROUND 1 On 23 January 2003, Mr Waite submitted to the Department of Local Government ("the Department") a completed pro forma application for access to documents under the Freedom of Information Act 1989 ("FOI application"). In that request he stated that he sought access to documents that were "support of statements in Minister's letter to the Hon Duncan Gay MP. See attachments. Hornsby Council". 2 The letter referred to by Mr Waite in his FOI application, a copy of which had been enclosed, was a letter by the Minister for Local Government, dated 20 December 2002, to the Hon Duncan J Gay MLC. That letter was a response to representations made by the Hon Duncan J Gay, on behalf of Mr Waite, who had expressed concerns about the functioning of Hornsby Shire Council. The Minister's response indicates that he had previously received such representations directly from Mr Waite. In the letter, the Minister advised that he, nor the Department, had received information, or material that warranted any investigation into, or intervention in respect of the affairs or management of Hornsby Shire Council. Mr Waite had marked the copy of the Minister's letter enclosed with the FOI application. He had marked it by underlining certain sentences, which he numbered 1 to 5. These were as follows: "1 With that autonomy [i.e. of local councils under the Local Government Act 1993] goes a direct responsibility to Council's own ratepayers and community. 2 Act only gives the Minister for Local Government and the Department limited powers of intervention 3 … it is normal practice for preliminary enquiries to be made in the first instance with the Council concerned, to allow it an opportunity to respond to any allegations, or to get further facts and information to facilitate the assessment process. 4 … the Department is entitled, having regard to Council's powers and responsibilities under the Act, to rely on that information, in good faith. 5 I trust that this clarifies the matter for you and your constituent." 3 Mr Waite also enclosed a further letter with his FOI application. This was a letter by him to the Minister, dated 23 February (sic) 2003, in which Mr Waite further identified the documents he was seeking access to. He identified 6 matters for which he requested "substantiation documentation". Five of these related to the matters he had highlighted in the Ministers letter of 20 December 2002 and which are referred to above. In respect of these he requested the following: "1 Copies of laws or policies as to what can be done by the community if the above situation exists? It is noted that in some instances the Act [the Local Government Act] precludes civil action. 2 Section of the Act limiting the Minister's or Department's investigative powers as is suggested in your letter? 3 Council documentation proving my complaints have been investigated and PROVEN to be unfounded. Note attached letter from the General Manager. 4 In the absence of any evidence from Council records of any form of communication between yourself, the Department, Council, the ICAC, Ombudsmen and Privacy NSW providing all matters I have raised have been investigated and proven unsustainable. 5 In the absence of any evidence from Council, records of any form of communication between yourself, the Department, the Council, the ICAC, Ombudsman and Privacy NSW proving all matters I have raised have been investigated and proven unsustainable. 6 Documents, apart from those requested above that may clarify this matter". 4 On 12 February 2003, the Department wrote to Mr Waite seeking clarification of the documents he sought access to. No response was received and the Department processed the FOI application on the information it had. Following an examination of its records, the Department identified four hundred and fifty-one (451) documents, that were in its possession and which fell within the ambit of Mr Waite's FOI application. The Department determined that twelve (12) of these documents were exempt on the ground that they were internal working documents coming within clause 9 of Schedule 1 of the Freedom of Information Act 1989 ("FOI Act"). The Department also claimed exemption for a further three (3) documents on the ground that these documents were confidential pursuant to clause 13(b) of Schedule 1 of the FOI Act. On 2 April 2003, the Department wrote to Mr Waite advising him of their determination. The Department had also prepared a schedule that listed and numbered each of the 451 documents. This schedule contained a description for each document and stated whether the Department had refused or granted access to that document. A copy of this schedule and the documents for which access was not refused was given to Mr Waite. 5 On 8 April 2003, Mr Waite submitted a pro forma application for internal review of the Department's determination in respect of those documents for which it had refused access. Attached to this internal review application were written submissions signed by Mr Waite. On the pro forma internal review application Mr Waite stated that "submission 243 is incorrect", that his allegations had not been answered and that there were "missing documents". In respect of the missing documents, in his submissions attached to the internal review application, Mr Waite stated that he had left approximately 1000 pages of documents with the Department. These he said were contained in one white ring binder and three black ring binders. He noted that copies of the documents that were in the white folder had been itemised by the Department in response to his FOI application. However, the remainder had not been identified. He stated that he did not wish to have copies of these documents, but merely wanted the Department to acknowledge that it had these. The submissions also noted the alleged errors in document no. 243, which he indirectly requested to be corrected. The remainder of his submissions related to alleged inappropriate conduct by Hornsby Shire Council or the Councillors of the Council and a request as to whether this conduct has been investigated. 6 The Department treated Mr Waite's application for internal review as being an application to review the Department's decision in respect of those documents for which access had been refused. That internal review was completed on 30 April 2003 and of the fifteen documents for which access had been refused, the Department determined to release six of those documents but affirmed its decision in respect of the remainder. 7 Mr Waite then filed an application with the Tribunal for review of the Department's decision. This application was also accompanied by a cover letter addressed to the Registrar of the Tribunal. In that letter Mr Waite stated the following: "My application to the Tribunal is: that the Minister for Local Government's decision (paragraph 2 of his letter to the Hon Duncan Gay MLC on 20th December 2002) not to investigate my complaints about Hornsby Council is based on erroneous information held for over three years by the Minister and/or his Department be reviewed , and based on this and many other erroneous decisions made by or on behalf of Hornsby Council false, misleading, inaccurate or misinterpreted documents held by Members of the Legislature, government authorities and as a consequence media releases about myself (and others) be corrected, and full and appropriate public apologies be made in accordance with the Civil Liability Act 2002 in the appropriate forums and by way of media releases" 8 In his letter Mr Waite also states the following: "The basis of the FOIs and application to the Tribunal will be for me to satisfy the Tribunal I (and many others) have been denied 'natural justice' and 'procedural fairness' by the Minister and Department of Local Government (and also the ICAC, Ombudsmen and Privacy NSW) based on salacious, deficient or misleading information originating from Hornsby Council". 9 On 9 May 2003, the Department made a determination in respect of the "serious error" that was contained in document no. 243 and which was referred to in Mr Waite's application for internal review. This determination will be dealt with in greater detail later in these reasons for decision. 15 AUGUST 2003 HEARING 10 Mr Waite's application was initially heard, on 15 August 2003. During the course of that hearing Mr Waite identified the following documents for which he sought review of the Director General's decision in refusing to grant him access to them. Doc No. Description Exemption Grounds 14 Internal Working Document Confidential information. 15 Internal Working Document Confidential information. 41 Internal Working Document Internal working document. 259 Confidential Document Confidential information. 260 Confidential Document Confidential information. 261 Confidential Document Confidential information. 281 Internal Working Document Confidential information. 11 At the hearing the other matters that were in issue were amendments requested by Mr Waite to document no. 243 and no. 69. For the purposes of s.55 of the FOI Act, the Tribunal received copies of the documents for which access had been refused and it heard argument from Mr Ratcliff, who appeared on behalf of the Department, in the absence of the public, Mr Waite and his supporters. For this purpose the Tribunal made the relevant orders pursuant to s.75(2) of the Administrative Decisions Tribunal Act 1997. 12 At the conclusion of the hearing, on 15 August 2003, the Tribunal made the following orders: (a) The Director General's decision to refuse access to document nos. 15, 259, 260 and 261 is affirmed. (b) The Director General's decision in respect of document nos. 14, 41 and 281 be set aside and in substitution thereof a decision that Mr Waite be given access to the documents subject to deletion of the relevant material coming within the exemption contained in Clause 9 or Clause 13(b) of Schedule 1 of the FOI Act. (c) That the Respondent is to provide the Applicant with a copy of document nos. 14, 41 and 281, with the relevant deletions of the exempt material in those documents, on or before 5 September 2003. (d) The Applicant to submit to the Respondent a request for internal review of the Respondent's decision in respect of the Applicant's request to amend document no. 243 and any amendments requested by the Applicant to document no. 69 on or before 20 August 2003. (e) The Respondent to provide a written internal review to the Applicant's request referred to above on or before 5 September 2003. (f) The matter stood over to 16 September 2003 at 9.30am. 13 To date, the Tribunal has not published its reasons, in respect of order (a) to (c). Nor has there been a request by the parties for the Tribunal to publish its reasons. HEARING ON 16 SEPTEMBER 2003 14 When the matter again came before the Tribunal on 16 September 2003, the only matters in issue related to the corrections that Mr Waite had requested in respect of document nos. 69 and 243. In all other respects, Mr Waite advised the Tribunal that he had no further issue in respect of the documents for which the Department had refused access. 15 As mentioned above, in his request for an internal review, Mr Waite stated that there was a serious error in document no. 243, which was a departmental submission to the Minister dated 19 December 2000 concerning Hornsby Council's treatment of Mr Waite and others. The submission stated that: "Mr Waite was the subject of a defamatory letter by Councillor Orr to Hornsby Shire Council. He alleges that the General Manager circulated the letter to the Councillors and possibly to staff. He also claims that by Council's resolution his letter was published and therefore became a public document. The Council has dealt with the actions of Councillor Orr under its Code of Conduct in accordance with the provisions of the Local Government Act. Council has apparently attempted to declare Mr Waite a difficult complainant and take out an apprehended violence order against him. … … In regard to Councillor Orr's letter to Hornsby Council" (underlining added) 16 The factual errors, which are not disputed, is the reference to Councillor Orr and the alleged fact that the Council had taken out an apprehended violence order against Mr Waite. At the hearing the parties agreed that it was former Councillor Cardamatis who wrote the alleged defamatory letter and who obtained an interim apprehended violence order against Mr Waite. However, Mr Ratcliff submitted that at the time the document was created its author relied on information that was then available to him and that in accordance with that information the submission was correct. 17 On 11 April 2003, Mr Waite wrote a further letter to the Department submitting that document no. 441, which was a submission from the Department to the Minister, dated 14 August 2002, concerning various complaints by Mr Waite and Council's decisions to declare him a difficult complainant. That submission made reference to Mr Waite having been successful against Hornsby Council in a court case, when in fact there had been no such court case. 18 On 9 May 2003, the Department wrote to Mr Waite advising him that they had treated the abovementioned errors in document no. 243 and no. 441 as being a request by Mr Waite for an amendment to these departmental records pursuant to s.40 of the FOI Act. In that letter, the Department agreed to make specified amendments to these documents. The amendments made by the Department to document no. 441 were not the subject of further argument by Mr Waite at the hearing on 15 August 2003. Accordingly, the Tribunal made no further orders in respect thereof. 19 On 17 August 2003, Mr Waite wrote to the Department identifying the particular amendments he was seeking to document no. 243 and no. 69. In particular, he stated he wanted the following amendments to these documents: "Councillor Cardamatis , pages 1 and also 2 of 243 and page 2 of 69. An order and Councillor Cardamatis had taken an Apprehended Violence Order against him based on fallacious evidence "legitimised by Council resolutions" by Mayor Pringle allowing Councillor Cardamatis to raise matters that were not properly before Council despite advice from the Privacy Commissioner not to do so. It is also noted that Cr Cardamatis failed to produce any evidence to substantiate his claims, withdrew his application and Mr Waite was awarded costs and appears to be…" 20 The Department responded to Mr Waite's request for internal review on 3 September 2003. In the internal review determination, the Department agreed to amend the documents to make it clear that ex-Councillor Cardamatis was the applicant for an AVO against Mr Waite. However, the Department did not agree to make the specific amendment requested by Mr Waite as it was of the opinion that the requested amendment went beyond simple correction of a factual error. It stated that it was of the view that the request included Mr Wait's subjective views of Council's actions and it could not be said that the person who wrote the submission in fact held those particular views. 21 As the parties were unable to agree to the terms of the amendments, it was agreed that the Tribunal should determine this aspect of Mr Waite's application. RELEVANT LEGISLATION 22 Section 39 of the Freedom of Information Act 1989 ("FOI Act") gives every person who has been given access to any agency's document a right to apply for the amendment of the agency's documents in particular circumstances. That section provides as follows: "s.39 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." 23 Section 40 of the FOI Act provides that an application for the amendment of an agency's records is to be in writing and specifies that it is made pursuant to the FOI Act. Section 40 also provides that the application is to contain such information as is reasonably necessary to enable the agency to identify the agency's document and specify the areas in which the FOI applicant claims that the information contained in the document is either incomplete, incorrect or out of date or misleading. Where the applicant claims that the information contained in the agency's document is incomplete or out of date, s.40(e) provides that the applicant is to enclose, with the application, information on which the Agency is able to complete its records or bring them up to date. 24 Where an FOI applicant has made an application to amend a record of the agency, that agency is required to determine that application by either amending the record as requested or refusing to amend them (s. 43(1) FOI Act). 25 Section 44 of the FOI Act provides that an agency may refuse to amend its records in accordance with an application where: (a) it is satisfied that its records were not incomplete, incorrect, out of date or misleading in a material respect, or (b) it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or (c) 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 to those records is subject to a fee or charge. 26 Section 46 of the FOI Act enables an FOI applicant to request an agency to add a notation to documents where the agency has refused to amend its documents. That section provides as follows: "46(1) If an agency has refused to amend its records, the applicant may, by notice in writing lodged at an office of the agency, require the agency to add to those records a notation: (a) specifying the respects in which the applicant claims the records to be incomplete, incorrect, out of date or misleading, and (b) if the applicant claims the records to be incomplete or out of date – setting out such information as the Applicant claims is necessary to complete the records or to bring them up to date. 46(2) An agency shall comply with the requirements of a notice lodged under this section and shall cause written notice of the nature of the notation to be given to the applicant." 27 Section 53(1) of the FOI Act gives "a person who is aggrieved" by a determination made by an agency under s.43 to apply to the Tribunal for a review of that determination. Subsection 53(3) sets out who are "persons aggrieved" for the purpose of subsection 53(1). This includes FOI applicants who have made an application under section 40 of the FOI Act to amend the agency's records and the agency has refused to amend the record. A similar right of review is not provided for an FOI application under section 46 of the FOI Act. FINDINGS AND DECISION 28 The Tribunal has jurisdiction to hear Mr Waite's application by virtue of s. 53(1) FOI Act and the s. 38 of the Administrative Decisions Tribunal Act 1997. 29 As I have mentioned above, there is no dispute between Mr Waite and the Department as to the fact that it was not Councillor Orr who wrote the alleged defamatory letter about Mr Waite, it was Councillor Cardamatis, who is no longer a Councillor of Hornsby Shire Council. Nor is there a dispute that Councillor Cardamatis obtained an interim apprehended violence order against Mr Waite and not a permanent apprehended violence order against him. Nor is there a dispute that the particular references to these errors of fact in document no 243 and 69 concern the personal affairs of Mr Waite and that the information is available for use by the agency in connection with its administrative functions. 30 What is in dispute is the extent to which Mr Waite seeks to have document no 243 and 69 amended. a) Document 243 31 The first objection of Mr Waite is to the Department's proposed deletion of the words "Councillor Orr", in the first paragraph complained about in document no 243, and substitution of these words with the words "by a councillor". It is his contention that the words "Councillor Orr" should be substituted with the words "Councillor Cardamatis" and that this substitution should be made for all other references to Councillor Orr in the document. 32 In the Tribunal's opinion, Mr Waite is correct in his objection to the deletion of "Councillor Orr" and the substitution of "by a councillor" as this does not correct the actual error. At the same time I accept the evidence of the Department that the author of the document believed he had correctly named the Councillor. Accordingly, to accommodate both positions and at the same time correct the document, in the opinion of the Tribunal, the word "Orr" should have a line struck through it and the word "Cardamatis" inserted thereafter. This amendment can then be footnoted as the Department has determined in its determination. 33 Although Mr Waite only requested amendment to one of the references to Councillor Orr in document no 243, I agree that all the references to Councillor Orr in that document should be amended in the same manner. 34 The next objection by Mr Waite is to the Department's proposed insertion of the words "Councillor Cardamatis attempted to" and "Mr Waite" in the sentence that refers to the apprehended violence order that had been taken out against Mr Waite. Mr Waite again submitted that this sentence should be amended in the terms he had requested. In my opinion the Department is correct in stating that this amendment goes beyond correcting factual errors and is substantially an expression of Mr Waite's opinion about the facts. However, in the opinion of the Tribunal the amendments proposed by the Department fail to properly correct that which is factually incorrect in this sentence. As I have mentioned, it is not disputed that Councillor Cardamatis obtained an interim apprehended violence order against Mr Waite, which was not confirmed when the matter was heard. Accordingly, the Tribunal varies the determination of the Department in respect of this sentence by striking a line through the word "take" and inserting the following underlined words: "Council has apparently attempted to declare Mr Waite a difficult complainant and Councillor Cardamatis take took out an interim apprehended violence order against him , which he failed to have confirmed when the matter was heard by the Court ." 35 These amendments should again be footnoted in the same manner as the other amendments have been footnoted. b) Document 69 36 The amendments sought by Mr Waite in respect to document no 69, relate to the reference of an apprehended violence order having been made against him. In this case the Department determined to strike a line through the relevant words and footnote this by stating: "Former councillor Mr Cardamatis attempted to take out an apprehended violence order against Mr Waite." 37 The Tribunal agrees with Mr Waite's submission that in amending the record it is not correct to referred to "former" Councillor Cardamatis. Even though the correction is made as at the time of Mr Waite's application the correction relates to what the position was when the record was created. It is the Tribunal's understanding that in May 2001, when document no 69 was created, Mr Cardamatis was a Councillor of Hornsby Shire Council. In consistency with the amendments to document no 243, the Tribunal is of the opinion that the Department's determination in respect of document no 69 should be amended by inserting the following words: "Council's actions in relation to the other issues associated with this matter, viz Council's attempt to declare Mr Waite a "Difficult Complainant" and Councillor Cardamatis's attempt to obtain an Apprehended Violence Order against him appear to be in accordance with the …." 38 Again, this amendment should contain the appropriate amendment. ORDERS For the reasons stated above, the Tribunal orders that the determination of the Department in respect of the amendments, requested by Mr Waite, to document no 243 and 69 be varied in accordance with this decision. Decision revised 20 February 2004 - Paragraph 2 - correction of spelling Hon Duncan J Gay MLC. Paragraph 19 - correction of incorrect word "salacious" to "fallacious" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.