CITATION: Livermore v Tumbarumba Shire Council (No.2) [2008] NSWADT 172 DIVISION: General Division APPLICANT Tumbarumba Shire Council PARTIES: RESPONDENT Brent Stephen Livermore FILE NUMBER: 073327 HEARING DATES: On the papers SUBMISSIONS CLOSED: 15 May 2008 DATE OF DECISION: 13 June 2008 BEFORE: Handley R - Judicial Member CATCHWORDS: Amendment of documents MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Local Government Act 1993 Livermore v Tumbarumba Shire Council [2008] NSWADT 125 Botany Council v The Ombudsman (1995) 37 NSWLR 357 CASES CITED: Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Bennett v University of New England (unreported, NSW District Court, 7 August 1991)Waite v Department of Local Government [2004] NSWADT 11 Hayward-Brown v Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46 Coburn v Commissioner of Police, NSW Police [2003] NSWADT 2 APPLICANT In person REPRESENTATION: RESPONDENT M Rogers, solicitor ORDERS: The Tribunal directs Tumbarumba Shire Council to make the two amendments to its records detailed in these reasons. REASONS FOR DECISION 1 This matter involves an application by Brent Livermore for a review of a decision of Tumbarumba Shire Council ('the Council') dated 29 August 2007 in relation to Mr Livermore's application for amendment of the Council's records pursuant to the Freedom of Information 1989 ('the FOI Act'). Background 2 Mr Livermore was employed by the Council for a period of eight years until 3 January 2007. By letter dated 22 January 2007, he applied to the Council for access to documents: "The documents sought include: any report to Tumbarumba Shire Council and contained within the Committee of Whole section of the Business Paper and Agenda for the Meeting of Council to be held on 25 January 2007, that in any way refers to the expiration of the contract of Brent Livermore." 3 It appears that the Council responded by supplying Mr Livermore with a copy of a Report by the General Manager of the Council, Brian Pearson, to the 'Committee of the Whole' (hereafter referred to as 'the Report') for the Council meeting held on 25 January 2007. This Report was entitled 'Staff Matter', and concerned the expiry of Mr Livermore's contract of employment with the Council as Manager of Environmental Services. 4 By letter dated 2 March 2007, Mr Livermore applied to the Council for the amendment of information concerning his personal affairs contained in the Report on the ground that the information has been and may be used by the Council in connection with its administrative functions and contains information that is misleading. Mr Livermore identified seven paragraphs of the Report that he sought to have amended. Mr Pearson replied by letter dated 22 March 2007, advising that the Council, having sought advice from the Office of the New South Wales Ombudsman, was unable to conduct the necessary review of the Report because of perceived conflicts of interest. Mr Pearson suggested, as a compromise, that Mr Livermore's letter of 2 March 2007 be attached to his employee file to record his recollection of events concerning the cessation of his employment. 5 Mr Livermore responded by letter dated 26 March 2007 refuting the position stated by Mr Pearson, rejecting the proposed compromise, and stating that Mr Pearson's response was: "not within the provisions of the legislation and as such you should now provide the Council with the opportunity to have the matter dealt with in a proper manner, prior to the need to refer the matter to the Ombudsman's Office." 6 Mr Pearson replied on 18 April 2007. It appears that Mr Livermore subsequently complained to the New South Wales Ombudsman about the Council's handling of his application for amendment of the Council's records. As a result, an Investigations Officer of the Ombudsman's Office entered into correspondence with the parties and, on 6 August 2007, made a written suggestion pursuant to section 52A of the FOI Act that the Council review its determination in this matter and make two suggested amendments to the Report. By letter dated 29 August 2007, Mr Pearson notified Mr Livermore that following correspondence with the Ombudsman's Office, he had reviewed the Council's determination in this matter and amended the Council's records (it appears in accordance with the suggested amendments), and had also attached Mr Livermore's correspondence as part of the Council's records. 7 On 4 September 2007, the Investigations Officer notified the parties that following the acceptance of his suggestion, he had closed the file. The Officer notified Mr Livermore of his right to apply to the Tribunal within 60 days of the date of his letter (section 53 and section 54(b)(i) of the FOI Act). On 15 October 2007, Mr Livermore wrote to the Council's FOI Officer requesting written confirmation that the actions outlined by Mr Pearson were completed on 29 August 2007. 8 On 31 October 2007, Mr Livermore's application for a review was filed in the Tribunal. He stated as the reasons for his application that Mr Pearson's decision of 29 August 2007, "has not addressed the issues raised in my original application for amendment of Council records, as well Mr Pearson has tried to include other matters that were not recommended by or I believe discussed with the Ombudsman's Office." Mr Livermore also noted that he had not received a response to his letter to the Council's FOI Officer dated 15 October 2007. 9 I held a planning meeting with the parties on 11 December 2007 and set a timetable for the exchange of submissions. In submissions filed on 21 February 2008, the Council submitted that the Tribunal does not have jurisdiction to hear Mr Livermore's application because the Report does not contain information concerning his personal affairs: a person may only apply for an amendment of an agency's records under section 39(a) of the FOI Act "if the document contains information concerning the person's personal affairs". 10 At a second planning meeting on 13 March 2008, I set a timetable for the filing of further submissions on the issue of the Tribunal's jurisdiction raised by the Council, and the parties agreed that I would decide this preliminary issue on the basis of the parties' written submissions. In a decision dated 28 April 2008, I determined that the Tribunal has jurisdiction to hear Mr Livermore's application: Livermore v Tumbarumba Shire Council [2008] NSWADT 125. 11 I held a third planning meeting with the parties by telephone on 15 May 2008 when the parties agreed that I should determine the substantive issue on the basis of the written submissions already filed. However, the parties noted that of the seven issues identified by Mr Livermore in his letter to the Council dated 2 March 2007, the fifth issue has been clarified and dealt with following the Ombudsman's intervention and the seventh issue has been resolved. Thus, the parties agreed that there were five outstanding issues that I should address. Mr Livermore also asked the Tribunal to consider the processing of his application by the Council and whether it should exercise its power to refer relevant matters to the Ombudsman for inquiry, investigation or other action. The Relevant Legislation 12 Section 39(a) of the FOI Act states: 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. 13 Section 43(1) provides that an 'agency', defined in section 6(1) so as to include the Council, shall determine an application by amending its records in accordance with the application or by refusing to amend its records. Section 44 states: 44. 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. The Issues in Dispute 14 The five outstanding issues, of the seven originally identified by Mr Livermore in his letter to the Council dated 2 March 2007, and the parties' submissions on those five issues are as follows: Issue (1) 15 Paragraph 1 under the subheading 'Report', on page 1 of the Report, states: "Council's Manager of Environmental Services has advised Council of his resignation effective 3 January 2007, and his intention to look to carry out similar activities on a consultancy basis with other Councils." 16 Mr Livermore contends that 'resignation' "is not the appropriate terminology and the paragraph should be amended/notated to clearly indicate that my fixed term contract with the Council terminated on 3 January 2007 and that I did not 'resign' from Council". 17 In submissions dated 21 January 2008, Mr Livermore submitted that paragraph 1 should be amended by ruling through the words "Council's Manager of Environmental Services has advised Council of his resignation effective 3 January 2007", and providing a notation adjacent to this, reading, "Following the expiration of the employment contract of Council's Manager of Environmental Services on 3 January 2007, Mr Livermore has advised that he will not be entering into any further employment arrangements with Council". 18 The Council noted that under the heading 'Summary' at the commencement of the Report, Mr Pearson said, "I advise Mr Livermore advised his employment with Council ceased effective 3 January 2007." The Council submits further that the word 'resignation' was used in the sense of Mr Livermore withdrawing his interest from entering into any future employment, which, it contends, was the intention of Mr Livermore's letter to Mr Pearson dated 8 January 2007. Thus, use of the word 'resignation' was not incorrect, incomplete, out of date or misleading to a reasonable person reading the Report. Issue (2) 19 Paragraph 2 under the subheading 'Report' states: "In accordance with Mr Livermore's contract of employment and pending a formal review of the organisational structure and reporting lines, Mr Livermore was advised in 2006 that it was the Council's intention to offer an ongoing full-time employment contract with Council following the finalisation and review of the organisational structure, reporting lines, functions accountabilities and responsibilities." 20 Mr Livermore contends that this paragraph is "grossly misleading" and should be amended/notated to state clearly that in April 2006 he notified Council of his intention to seek a renewal of his contract from 3 January 2007 ('Memo' dated 6 April 2006), and Council dishonoured the terms of his contract by failing to notify him of its intention in this regard. Mr Livermore contends that Council's response dated 10 April 2006, which refers to "consideration in relation to the organisational structure will include a review [sic] all positions in the organisation", "could in no way be taken to be an offer of ongoing employment as you state in the report". 21 In submissions dated 21 January 2008, Mr Livermore submitted that the response dated 10 April 2006 was merely an offer to discuss the matter at some later time, and there was no subsequent advice from the Council in accordance with the terms of the contract. Mr Livermore submitted that the paragraph should be amended by ruling through the entire paragraph and replacing it with the following notation: "Mr Livermore was advised by a memo dated 10 April 2006, that I would be happy to discuss the issue of contracts following completion of the organisational structure review in May/June." 22 The Council disputes that paragraph 2 of the Report is "grossly misleading". The Council states that Mr Pearson verbally advised Mr Livermore on two occasions in 2006 – in June and September – and in writing on 18 December 2006, that it was Council's intention to offer him an ongoing employment contract. The offer to renew his employment, which was within the Council's discretion, was to occur after the organisational structural review had been completed. However, strictly speaking, the Council's failure to offer a renewal of his contract within six months of its expiry resulted in the contract being terminated, with the effect that any negotiations in the last six months before the expiry were fresh negotiations. Council had a discretion to negotiate alternative employment arrangements. The Council submits the timing of the contract negotiations is irrelevant to the question of whether paragraph 2 is incomplete, incorrect, out of date or misleading, and since there were no factual errors, no amendment can be made. Issue (3) 23 Paragraph 3 under the subheading 'Report' states: "The intention of the General Manager to offer an ongoing contract of employment was verbally advised to Mr Livermore on two occasions and confirmed in writing in the last quarter of 2006. The employment contract as per standard employment contracts technically requires Council to provide the new contract and employment conditions and reporting lines etc within six months of the expiration of the employment contract, notwithstanding this, it has always been my intention and desire for Mr Livermore to continue working full-time in regards to an ongoing four year contract of employment." 24 Mr Livermore contends that paragraph 3 is incorrect and misleading and should be amended/notated to reflect that the offer of renewal was not in accordance with the terms of the contract. He states the offer was out of time and was an offer of part-time employment, and not an offer of renewal in respect of his full-time position. 25 Mr Livermore's contract of employment dated 18 February 2003, in respect of a four year period of employment from 3 January 2003 and terminating on 3 January 2007, stated that the employee would advise the Council at lease nine months before 3 January 2007 if the employee was seeking re-employment with the Council (clause 4.1), and the Council would determine whether it proposed to offer the employee a new contract of employment and on what terms, at least six months before 3 January 2007 (clause 4.2). 26 In submissions dated 21 January 2008, Mr Livermore stated that the offer made "in the last quarter of 2006", refers to an offer made on 18 December 2006 in relation to a new part-time position. He also contended that the second sentence of paragraph 3, which refers to his contract requiring "the new contract and employment conditions and reporting lines etc [being provided to him] within six months of the expiration of the employment contract" is incorrect and should state that such notification is to be provided at least six months before the expiry of the contract. 27 Mr Livermore therefore submitted that the entire paragraph should be ruled though and the following notation added: "The provisions of Mr Livermore's contract of employment were not met by Council with regard to compliance with Clause 4 of his contract, Renewal of Appointment, in that Council had not provided written notification to Mr Livermore at least six months before 3 January 2007 as required by Clause 4.2 of the contract." 28 The Council submits paragraph 3 of the report reflects Mr Pearson's genuinely held opinion, which is supported by the Council's documentation, and is not misleading. Issue (4) 29 Paragraph 4 under the subheading 'Report' states: "Council is advised that Mr Livermore's initial and second contracts with Council were both signed approximately 3 months and 6 months post their commencement dates with Council." 30 Mr Livermore contends that the paragraph should be amended/notated to clearly identify that in both cases he had a letter of offer well before the commencement of the contracts and that the tardiness in having the contracts prepared for signature was a failing of Council, and, in any event, there was no requirement "that the second contract necessarily be signed". 31 In submissions dated 21 January 2008, Mr Livermore said that paragraph 4 was, essentially, irrelevant to the issue he raised, which was the Council's failure to offer a new contract to him in accordance with the provisions of his contract. He submitted that the paragraph should therefore be removed, with a notation added to the effect that this amendment was made because the Tribunal found the passage to be incorrect or misleading. 32 The Council submits this issue is similar to issues 2 and 3 above. The issue involves a contractual matter, which does not fall within the scope of an application to amend records. Mr Livermore's 'opinion' of what should be in the Report is irrelevant to the Tribunal's determination. Mr Pearson's views were honestly held and substantiated by the Council's documents. Paragraph 4 is not incomplete, incorrect, out of date or misleading to a reasonable person reading the Report. Issue (5) 33 Paragraph 8 under the subheading 'Report' states: "Notwithstanding this, and in recognition of Mr Livermore's eight years service and contribution to the Council's operations, I made an 'ex-gratia' offer of sick-leave being available upon commencement of part-time employment with Council in an amount of 13 weeks sick leave on full-pay (at 17 weeks on a part-time basis)". 34 Mr Livermore contends that the paragraph should be amended/notated to show that he never requested the 'ex gratia' offer as a cash payment, but rather that his sick leave entitlements at the time of the expiry of his contract should be carried over as an on-going sick leave entitlement for his new contract. He states that this should be in recognition, first, of the fact that he had over 21 weeks sick leave entitlement at the time of the expiry of his contract that would never be utilised, and, second, in recognition of Council's failure to provide him with six months notice as required by the terms of his contract. 35 In submissions dated 21 January 2008, Mr Livermore submitted that the paragraph should be amended by inserting the words "Council's failure to honour the terms of the contract and" after the words 'in recognition of', and the word "entitlement" after the words 'offer of sick leave'. 36 The Council contends Mr Pearson made no statement that the ex gratia sick leave entitlement was being requested as a cash payment. Mr Livermore has incorrectly implied such an assertion. General Submissions 37 The Council submitted that the Report is not incomplete, incorrect, out of date or misleading in accordance with section 39(c) of the FOI Act. Rather the Report sets out Mr Pearson's opinion and views, honestly held and accurately recorded as to the events surrounding the cessation of Mr Livermore's employment at the time of the preparation of the Report. 38 Mr Livermore responded that because the Report contained factual mistakes, the information contained in the Report was flawed, and should not be considered accurate. The relevant documentation was available to Mr Pearson at the time of writing the Report. 39 The Council submitted that the ability to amend Council records is restricted by section 375 of the Local Government Act 1993 ('the LG Act'), which states: (1) The council must ensure that full and accurate minutes are kept of the proceedings of a meeting of the council. (2) The minutes must, when they have been confirmed at a subsequent meeting of the council, be signed by the person presiding at that subsequent meeting. 40 The Council resolution passed at the meeting on 25 January 2007 stated, "That Council note the information provided." The Report, which Mr Livermore seeks to amend, forms part of the formal records of that meeting and will be kept in perpetuity. The Council submitted, further, that the amendments sought by Mr Livermore would constitute a re-writing of history and a falsifying of the records, which, in any event, are not incomplete, incorrect, out of date or misleading. It was never intended that the Report should give a detailed historical account of the negotiations. Rather the intention was to inform Council of the cessation of Mr Livermore's employment. 41 Mr Livermore submitted that the provisions of the LG Act reinforce the notion that a council's records must be accurate and signed when adopted. Section 375 is not intended as a method of avoiding amendment to council records. With regard to the integrity of the Council's records, Mr Livermore submitted that the Council has in part itself falsified the records in terms of part of the content. Amendments made should include ruling through material parts and providing a notation to explain the amendment. Further, any amended records should be identified in a subsequent report to the Council explaining the reasons for the amendments. 42 As noted above, Mr Livermore also referred to the process undertaken by the Council in response to his application and asked me to consider whether any relevant matter should be referred to the Ombudsman. Discussion 43 In my earlier decision in this matter dated 28 April 2008, referred to above, I stated that I was satisfied that the Report does contain information concerning Mr Livermore's 'personal affairs' and, consequently, the Tribunal has jurisdiction to hear his application for review of the decision dated 29 August 2007 made pursuant to section 53(1) of the FOI Act. I stated my view that the fact of a person's employment in a relatively high level governmental position such as the Manager of Environmental Services with a Council and the term of the person's employment is information of an "official character". However, details of remuneration and leave entitlements, and of discussions concerning the renewal of the person's contract beyond the mere fact that such discussions had taken place, including references to the person's health and future plans, are matters of private concern. 44 I must now determine whether the five outstanding issues referred to above identify information in the Report, being a Council record, concerning Mr Livermore's personal affairs that is incomplete, incorrect, out of date or misleading in a material respect. If this is established, then the Tribunal may exercise the power of the agency pursuant to section 43(1) of the FOI Act, to amend the records in accordance with Mr Livermore's application. 45 I note Kirby P's comment in Botany Council v The Ombudsman (1995) 37 NSWLR 357 at 369, that "History cannot be rewritten", in the context of the Ombudsman's power to recommend an amendment of records. So too in the case of amendments permitted by section 39 of the FOI Act, as the NSW Court of Appeal recognised in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 ('Crewdson'), at paragraph 35. 46 However, reference should be made to the stated object of the FOI Act in section 5(1)(b) to extend, as far as possible, the rights of the public: (b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. 47 The means by which this object is to be achieved, stated in section 5(2)(a), is to confer a right of access to government documents and, in section 5(2)(c): (c) by enabling each member of the public to apply for the amendment of such of the Government's records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. 48 With regard to the meaning of 'incorrect' and 'misleading', in Bennett v University of New England (unreported, NSW District Court, 7 August 1991), Dunford J observed: "Without going into detail, I am satisfied that 'incorrect' includes anything that is not in accordance with fact or is erroneous or inaccurate, and that 'misleading' includes giving a wrong impression." Information in respect of which an amendment may be sought under section 39 includes factual errors: Waite v Department of Local Government [2004] NSWADT 11, at paragraph 34. 49 The applicant bears the initial burden of providing evidence in support of the amendment. Pursuant to section 61, the respondent then bears the burden of justifying its decision to refuse to amend the records: Crewdson, at 32. 50 Where a record is found to be incomplete, incorrect, out of date or misleading, the appropriate determination will generally be to amend the record by way of a notation against the offending information correcting it, and, where appropriate, in order to identify the offending information clearly, either striking it through while leaving it legible, or underlining it: Hayward-Brown v Chief Executive Officer, Wentworth Area Health Service [2000] NSWADT 46, at paragraph 76; Crewdson, at 35; Coburn v Commissioner of Police, NSW Police [2003] NSWADT 2, at paragraphs 41 to 43. 51 Turning to the first issue of the five outstanding issues, I am satisfied that, in the light of the events surrounding the cessation of his employment with the Council, whether or not Mr Livermore 'resigned' is information concerning his personal affairs. The use of the word 'resignation' in paragraph 1 under the sub-heading 'Report', on page 1 of the Report (quoted above), is not, in my view, factually incorrect because Mr Livermore did 'resign' in terms of the ordinary meaning of the word in this context, being that of relinquishing or giving up a position or office (Concise Oxford Dictionary 6th edition; Macquarie Concise Dictionary, 3rd edition). While I agree that he did not relinquish an ongoing contract of employment, and that his employment ended on the expiry of his term of employment, he did relinquish the opportunity to accept a new contract, albeit one on different terms. The use of the word 'resignation' in this context is, in my opinion, sufficiently close to its ordinary meaning as not to be incorrect or misleading in a material respect. 52 With regard to the second issue, I am satisfied that the first line of paragraph 2 is misleading because the Council's response to Mr Livermore's notification ('Memo' dated 6 April 2006, addressed to Mr Pearson) that it was his intention to seek a renewal of his contract of employment, did not accord with the terms of Mr Livermore's contract of employment, and that this is information concerning his personal affairs. In my view, the appropriate amendment is to strike through the words "In accordance with Mr Livermore's contract of employment and", and insert a notation as follows: "This amendment was made at the direction of the Administrative Decisions Tribunal in matter no 073327." I am not satisfied that the paragraph is otherwise incomplete, incorrect, out of date or misleading, noting the context is that of a report to the Council on a matter, and not a detailed historical account of the contractual negotiations leading to the cessation of Mr Livermore's employment. 53 With regard to the third issue, I am satisfied that the words in lines 6 and 7 of paragraph 3, "within six months of the expiration of the employment contract" are incorrect, because Mr Livermore's employment contract in fact required notification to be provided at least six months before the expiry of the contract. In my view, for the reasons stated in relation to the first issue, this is information concerning his personal affairs, and an amendment should be made. The words "within six months of" should be struck through and the words "not later than six months before" should be substituted, with the insertion of a notation as follows: "This amendment was made at the direction of the Administrative Decisions Tribunal in matter no 073327." 54 With regard to the fourth issue, I agree with Mr Livermore that paragraph 4 appears to be irrelevant to a report on the cessation of his contract of employment. However, the issue is whether the information is incomplete, incorrect, out of date or misleading, and, in my view, it is not. Thus, no amendment is required. 55 With regard to the fifth issue, paragraph 8 does not state that Mr Livermore requested the residue of sick leave entitlements from his prior employment with the Council to be paid as a cash benefit as Mr Livermore seems to imply. Mr Livermore's dissatisfaction with his treatment by the Council over the possible renewal of his contract of employment is not, in my opinion, a reason for amending paragraph 8, and I am not satisfied that the paragraph is incomplete, incorrect, out of date or misleading. Thus, no amendment is required. 56 The two amendments that I have determined should be made - in paragraphs 2 and 3 of the Report, do not, in my view, interfere with the Council's obligation under section 375 of the LG Act to keep full and accurate minutes of the proceedings of a meeting of the Council. The amendments merely make a relatively minor correction to a report to the Council, albeit important to Mr Livermore in terms of the accuracy of the personal information concerning him contained in the Report. Since this was purely a report by the General Manager to the Council on a staffing matter, the amendments would not appear to affect the fullness or accuracy of the Council minutes. 57 Mr Livermore also asked me to consider the process undertaken by the Council in response to his application, and whether any relevant matter should be referred to the Ombudsman. The Tribunal has a power to refer matters to the Ombudsman in accordance with the arrangements entered into pursuant to section 39 of the Administrative Decisions Tribunal Act 1997. I note that an Investigations Officer of the Ombudsman's Office has already considered the matter and made suggestions in relation to certain matters raised by Mr Livermore. (See paragraphs 6 and 7 above.) It appears the Council acted upon these suggestions with the consequence that the Officer subsequently closed the file. In my view, a further reference to the Ombudsman would serve no useful purpose. Orders The Tribunal directs the Council to make the two amendments to its records detailed in these reasons. Copies of the amended records should then be provided to Mr Livermore by way of confirmation that the amendments have been made. 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.