Much ado, to no avail, about the records on "true heir to the throne of Iran."

There is an angle but nothing of significant Freedom of Information interest in this Federal Court decision. However it is hard to go by Justice Gray's first sentence without a peek. The decision runs to 100 paragraphs.To cut to the chase, Ms Fard failed in her application and had costs awarded against her.

1. This is the strangest case I have encountered in almost 29 years as a judge. The applicant, Ms Fard, was born in Iran in 1947. In 1987, she fled to Turkey to avoid persecution of those of the Baha’i faith, of whom she is one. She was granted a visa to come to Australia. She arrived on 25 May 1988. She claims that the respondent, the Minister for Immigration and Citizenship (“the Minister”) holds documents that state falsely that Ms Fard is the mother of a man called Sohyle Lagheyefar or Sohail Laghaifar (or some variant of those spellings). She says that, in consequence of the existence of these false records, she has suffered various forms of harm and persecution in Australia. She wishes the Minister to cease to hold those records, or to correct them.
2. There is in Australia a man who has been known by the name Sohyle Lagheyefar or Sohail Laghaifar (or some variant thereof). He denies that Ms Fard is his mother and denies that that is his name. He claims to be his Imperial Majesty Soltan Qeumars Shah Qajar, the grandson of a Shah who was deposed in 1925, and the true heir to the throne of Iran. For convenience, I refer to him as Mr Qeumars in these reasons for judgment, as I did at the trial.
3. There are indeed many documents in the records held by the Department of Immigration and Citizenship (“the Department”) in which it is stated that Ms Fard is the mother of a son whose name is spelt in one or other of the ways referred to in [1] above, or some variant of either of those spellings. A number of those documents were tendered in evidence by pro bono counsel for Ms Fard, along with evidence intended to demonstrate the falsity of the documents to the extent that they represent that Ms Fard has a son who bears the name in question (and sometimes in other respects). The case put on behalf of Ms Fard appears to be that documents were falsified deliberately, in order that Mr Qeumars could be brought to Australia, given a false identity, and kept here.

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.

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.