GJ v Department of Education and Training [2008] NSWADT 348

CITATION: GJ v Department of Education and Training [2008] NSWADT 348

DIVISION: General Division

APPLICANT GJ PARTIES: RESPONDENT Department of Education and Training

FILE NUMBER: 083184

HEARING DATES: 13 October 2008

SUBMISSIONS CLOSED: 13 October 2008

EXTEMPORE DECISION DATE: 13 October 2008 BEFORE: Higgins S - Judicial Member

CATCHWORDS: Amendment of record

LEGISLATION CITED : Freedom of Information Act 1989

Bennett v University of New England (unreported, NSW District Court, 7 August 1991) C v NSW Treasury (No 3) [2004] NSWADT AP 6 Chand v NSW Police [2007] NSWADT 131 Coburn v NSW Police [2003] NSWADT 2 CASES CITED: Crewdson 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 S v Department of Community Services [2000] NSWADT 24 Waite v Department of Local Government [2004] NSWADT 11

APPLICANT In person REPRESENTATION: RESPONDENT L Watson, solicitor

ORDERS: The decision of the respondent agency is affirmed.

REASONS FOR DECISION 1 The applicant, GJ, sought review of a decision by the respondent, the Department of Education and Training, in regard to her request for the amendment to two documents. The request and the decision for which review was sought were made pursuant to the Freedom of Information Act 1989 ('the FOI Act'). The documents for which GJ sought amendment were documents she had obtained to an earlier FOI request for access to specified documents. 2 The application was heard on 13 October 2008 and at the conclusion of the hearing I gave an extempore decision in which I found that the decision of the respondent was the correct and preferred decision and ordered that it be affirmed. 3 A request was subsequently made, pursuant to section 89 of the Administrative Decisions Tribunal Act 1997, for written reasons for decision. These are my written reasons for decision, which elaborate on the brief reasons for decision I gave when making my extempore decision. Background 4 The two documents for which GJ sought amendment were two file notes written by Mr Malins and dated 2 and 12 August 2002 respectively. The file notes were Mr Malins' handwritten record of a telephone conversation he had with GJ on the days in question. Both file notes are relatively short. The file note of 2 August consists of 8 sentences or paragraphs and that of 12 August consists of 9 sentences or paragraphs. 5 Mr Malins is a principal investigator in the respondent's Employee Performance and Conduct Directorate and at the time the file notes were written he was conducting an investigation into allegations of inappropriate conduct by GJ's husband. The alleged inappropriate conduct concerned the relationship GJ's husband had with a student at the school where he taught. 6 GJ requested amendments to every paragraph in the file notes. In most case the requested amendment were additions, in the form of an expansion, of what she had said. GJ also contended that some of the things she is recorded as having said she did not say. 7 At the hearing, GJ and Mr Malins gave oral evidence and their respective statutory declarations and affidavit were tendered into evidence. This evidence is considered below. 8 GJ had sought to rely on evidence of a third person with whom she had discussed her telephone conversations with Mr Malins that are the subject of the two file notes. The respondent had objected to this evidence on the basis it was hearsay but in the event the Tribunal would allow the evidence, the respondent required this person for cross-examination. In light of the issues before the Tribunal and the possible weight that may be given to hearsay evidence, GJ decided not to rely on this evidence. Relevant legislation 9 Section 39 of the FOI Act gives every person a right to apply for amendment of an agency's records where that record concerns the person's personal affairs and that record is incomplete, incorrect, out of date or misleading. That section relevantly 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. 10 Section 44 of the FOI Act sets out the circumstances in which an agency may refuse to amend its records in accordance with the requested amendments of the FOI applicant. Included in these is where the agency is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material particular. 11 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. Issues 12 In this application, there was no dispute that the file notes contained personal information about GJ and that their contents was information that was available for use by the respondent in its administrative functions. What was disputed was whether the contents of the file notes were incomplete, incorrect, out of date or misleading in a material particular. 13 It was the respondent's contention that the contents of the file notes correctly recorded Mr Malins' recollection of the matters raised by GJ during their telephone conversation on the relevant days and on this basis it refused to make the amendments sought by GJ. 14 It was GL's contention that the file notes were not a complete record of what she had said during the telephone conversations and on this basis the file notes were incomplete, incorrect and misleading. 15 There was no dispute that GJ was required to provide some probative evidence to support the amendments she had requested. Nor was it disputed that the onus was on the respondent to satisfy the Tribunal that its decision to refuse to amend the file notes as requested by GJ 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]. Legal Principles 16 The terms 'incorrect' and 'misleading', as they appear in section 39 of the FOI Act, was considered by Dunford DCJ in Bennett v University of New England (unreported, NSW District Court, 7 August 1991). In that decision His Honour said: '… "incorrect" included anything that is not in accordance with fact, or is erroneous or inaccurate, and that "misleading" includes leaving the wrong impression. …' 17 In Crewdson (supra) at [24] the Court of Appeal found that the FOI Act was concerned with the accuracy of official records and not with the merits or legality of official action recorded therein and did not provide a vehicle for collateral review of the merits of that action. At [19] and [34] the Court of Appeal held that section 39 of the FOI Act was not a vehicle for the determination of disputed questions of opinion which were honestly held and accurately recorded: see also Ferns (supra) at [23]. However, where the underlying facts on which a recorded opinion is based is found to be incorrect the Tribunal has held that section 39 of the FOI Act provides for the amendment of the recorded opinion: see S v Department of Community Services [2000] NSWADT 24. Where the opinion is that of an expert special considerations apply: see C v NSW Treasury (No 3) [2004] NSWADT AP 6 at [100] – [103]. 18 In Chand v NSW Police [2007] NSWADT 131, Acting Deputy President Handley considered a decision of the NSW Police to refuse to amend a COPS records relating to the applicant in that application. The COPS record in question commenced with a warning to the effect that the applicant 'may have a psychiatric illness' and that there were a further 14 entries in the COPS records noting that the applicant suffered from a mental illness. This warning was then followed by reference to a report that the applicant did not appear to have a mental health problem and directing police to disregard the earlier notations on that and other COPS records. The Tribunal upheld the decision of the NSW Police to refuse to amend the COPS entries as the agency had satisfied the Tribunal that the records correctly reflected the opinion of police officers who had made the entries and that they were based on the police officers' reasonable assessment of the situation at the time. To amend the record the Tribunal found would constitute a 're-writing of history'. 19 In Livermore (supra) Judicial Member Handley (as he then was) considered various requested amendments to a report, concerning the applicant and prepared by the General Manager of the respondent Council, for consideration by the Council. The amendments sought included correcting errors of fact and also deleting words and phrases which the applicant asserted were misleading in that they did not correctly reflect the true situation. In Waite v Department of Local Government [2004] NSWADT 11 at [34], I considered an amendment of an assertion of fact in a record of the respondent, which the applicant contended was incorrect. 20 The FOI Act does not specify what form an amendment is to take where the information sought to be amended satisfies the requirements of section 39 of the FOI Act. In Crewdson (supra) at [35] the Court of Appeal held that where an expert whose opinion had been accurately recorded in an agency's documents and that expert later recognised that his/her opinion was incorrect at the time and withdrew it, then the proper course would be to add a notation that the opinion had been withdrawn rather than to remove the original opinion. The Court of Appeal went on to say that a deletion of the original opinion would falsify the record and would rewrite history. 21 In Bennett (supra) Dunford J ordered the University of New England to delete a hand-written notation which appeared on a letter. The Tribunal has adopted an approach of deletion as well as notation depending on the circumstances and in the context in which the information for which amendment has been sought: see Waite (supra); S v Department of Community Services (supra) at [59] and Coburn v NSW Police [2003] NSWADT 2. 22 Where the Tribunal is satisfied that the document for which amendment is sought is incorrect, incomplete or misleading as contended by an applicant for review, then the amendment should go no further than to correct what is incorrect, incomplete or misleading: see Ferns (supra) at [23]. Consideration 23 It was Mr Malins' evidence that that the two file notes in questions were prepared by him in the same manner he prepares all file notes of telephone conversations he has during the course of his work. He said that each telephone conversation was initiated by GJ and not himself. He explained that his practice was and continues to be that when he receives a telephone call, during the course of the conversation, he makes notes of the salient points made by the caller on a notepad that he has sitting on his desk beside the phone. As soon as the telephone call has finished he then immediately makes a file note of the conversation. In 2002 the file note was in the form of a handwritten note made by him on the respondent's pro-forma document that was entitled 'file note'. He indicated that such notes are now more commonly computer generated. In his oral evidence Mr Malins again said that the file notes the subject of this application, were made in this way. Mr Malins agreed that the file notes in question did not record verbatim what was said by Ms GJ but to his recollection the file note covered the essence of that conversation. When questioned as to the accuracy of specific parts or paragraphs in his file note Mr Malins was adamant that these were the words GJ had used. 24 In regard to the amendments requested by GJ, Mr Malins said that he disputed those matters recorded on his file note that GJ asserts she did not say. He also disputed that GJ had made a complaint about the then Child Protection Investigation Directorate, of which he was a member, or made reference to the Department of Community Services during these telephone conversations. He said had she made reference to these he would have recorded it as a salient point. In regard to the amendments otherwise, Mr Malins said that in his view there was no material difference to that which he had recorded. 25 In his oral evidence Mr Malins said he had some recollection of the conversations. He said they were relatively short – for a couple of minutes. He said GJ was polite and friendly and she was seeking information from him about the progress of the investigation. He denied that GJ appeared to be upset and that she had raised with him concerns she had about her husband's well being. He agreed that GJ had informed him about poems she had found and that he had agreed to collect them from her. 26 GJ's evidence was that she 'still had a vivid memory of the two telephone calls' she made to Mr Malins on 2 and 12 August 2002. They were calls she made after having returned on 17 July 2002 from a 5 month trip overseas visiting her daughter. In cross-examination she agreed that when she returned home she was very distressed when her husband arrived at their home with the student the subject of the investigation. She said she was very jet lagged and due to this arrived at an erroneous conclusion, which made her very upset. She also agreed that she was so upset that a neighbour called the police. 27 GJ said she made no notes of her conversation with Mr Malins on 2 or 12 August 2002. However, she remembered clearly why she rang. This was to find out what was happening with the investigation and to raise her concerns about her husband's mental state as a result of the ongoing investigation. 28 GJ also said she was more concerned about what was left out of the file notes rather than what was contained therein. 29 The role of the Tribunal is to determine whether the decision of the agency is the correct and preferred decision having regard to the applicable law and the relevant facts: see section 63 of the Administrative Decisions Tribunal Act 1997. 30 In my opinion this is a difficult application. I do not doubt that GJ's recollection of what she asserts she said to Mr Malins during these particular conversations are sincerely held by her. At the same time I accept through the passage of time that her recollection today may not entirely accord with what she did say, particularly as she made no record thereof and what must have been a difficult time for her and her family. At the same time I accept, on the basis of the evidence of his usual practice when receiving a telephone call in the course of his work, that Mr Malins file notes are a correct recording of his recollection of the salient points made by GJ during these conversations. To some extent these salient points may have been recorded in a more abbreviated form than what was said, but this does not make the record incomplete, incorrect out of date or misleading in a material particular. As Mr Malins readily acknowledged, the file notes were not prepared as a verbatim account of what GJ said. It is also noted that Mr Malins has had considerable investigation experience which includes making file notes of telephone conversations. 31 As mentioned above, the FOI makes provision for notations to be added to records. In my opinion this is perhaps one of those occasions where a notation would be more appropriate. But on the basis of the evidence of Mr Malins and also the circumstances in which the file notes were (i.e. they were made contemporaneously) I find that the decision of the respondent is the correct and preferred decision. 32 In making this finding I do not make any adverse finding about the evidence of GJ. As I have said I accept that her account is genuinely held but this is not the test for amendment of a record of the respondent under section 39 of the FOI Act, where the record otherwise, made contemporaneously, correctly reflects what the officer of the respondent understood GJ had said during their conversation. GJ is nevertheless able to provide the respondent with a request for a notation which sets out her recollection of events. 33 For the reasons set out above, the decision of the respondent is affirmed.