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Monday, September 12, 2011

FOI amendment rights extend to accuracy not necessarily truth

A rare South Australian District Court action (Jotanovic v Housing SA [2011] SADC 138) was brought by a tenant of Housing SA, aggrieved by a decision made by the Ombudsman refusing her application for amendment of  records concerning her personal affairs. She claimed that the information contained in the records was “incomplete, incorrect, out-of-date or misleading” (Freedom of Information Act s 30) because what she said were untrue allegations had been made in a petition that was circulated amongst fellow tenants. The Ombudsman had concluded that the opinions of signatories had not been discredited, despite Ms Jotanovic’s strong denial. He had not been persuaded that the opinions were formed on the basis of incorrect factual evidence or that there was no basis for them at all. Judge Davey upheld the Ombudsman's decision:
11. I respectfully agree with the determination of the Ombudsman that the records are not incomplete, incorrect, out of date or misleading because they are not records of Mrs Jotanovic’s behaviour, they are only records of what certain people have asserted has been Mrs Jotanovic’s behaviour.
12. The interpretation of the FOIA made by the Ombudsman is supported by the existence of s 37 of the FOIA which provides for “Notations” to be added to records when a person claims that matters contained in the records are incomplete, incorrect, out-of-date or misleading. The intention of s 37 of FOIA is to provide a means for the record to show that, for example, an allegation is disputed. I note that in this case Housing SA has offered to further confer with Mrs Jotanovic as to the nature and scope of notations on the records that she thinks will indicate that there is a dispute as to the matters recorded therein.
I think the outcome would be the same in a similar situation in other jurisdictions.

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