Amendment rights under FOI laws

Two recent decisions on amendment of record applications under freedom of information laws, examined the scope of this right and when it can be exercised.

The Acting Information Commissioner in Western Australia upheld a decision by Edith Cowan University to refuse to amend its records concerning a decision to exclude a PhD student from the program for a 12 month period. While acknowledging that aspects of the process had been unsatisfactory(the decision to exclude him had subsequently been reversed), the University decided and the Commissioner agreed that what had been recorded was not inaccurate or misleading:

"Whether or not the exclusion, or decision to exclude was a valid or effective exclusion or decision is not in my view a factor in deciding whether to amend personal information. Section 45 is not directed at the rewriting of history; it is about whether the recorded information is inaccurate, incomplete, out of date or misleading.(at 29).........
Section 45 is not intended to enable decisions of agencies to be changed or appeals against decisions to be made under the guise of amending records. It is not intended as a means of reviewing the effect of the decision of the agency with which the applicant is dissatisfied".(at 34)

The University had been prepared all along to add a notation to the records, in accordance with the Act, but as the applicant insisted on an amendment and refused the offer, he ended up with nothing from the process.

The NSW Administrative Decisions Tribunal in this case involving Tumburumba Shire Council had to decide whether it had jurisdiction to hear an application to review the Council's decision to refuse to amend a report on the cessation of the applicant's contract of employment.The right to seek amendment under the NSW FOI Act is limited to documents that contain information concerning the applicant's personal affairs.The Tribunal after discussion of precedents,decided the case could proceed:

"In my view, 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. The fact that Mr Livermore may have discussed such matters with the other staff in the Council and with others in the community, does not affect the status of the information as that concerning his personal affairs, as was recognised by the Full Federal Court in Colakovski."(at 24)

While the applicant is still in the game, he could have avoided arguing this issue with the Council and the Tribunal if he had instead applied to amend the documents exercising rights under the NSW Privacy and Personal information Protection Act. Those rights cover personal information-any information about an individual- a wider range of information than that covered by the term personal affairs.

Don't ask me, I just keep an eye on these things.