Freedom of Information - Amendment and annotation of personal records - Whether the records are incorrect - Whether the records should be amended - (Cth) Freedom of Information Act 1982 ss 48, 50

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the deemed decision of the Department of Home Affairs (the Department) of 9 November 2020 and substitute my decision that:
   • The spelling of the applicant's name in the IRIS records is incorrect. Those records should be amended pursuant to s 50(2) by appropriately annotating the IRIS records
   • The IRIS records are not otherwise incomplete, incorrect, out of date or misleading and do not require amendment.
2. Within 28 days of this decision, Services Australia must:
   • annotate the IRIS records to reflect the correct spelling of the applicant's name in accordance with s 50(2), and
   • advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal

1. This decision discusses the application of s 50 of the FOI Act and Part 7 of the Guidelines to the applicant's request to amend certain records of the Department. It is primarily of interest to the parties in relation to the specific records.

1. During the IC review, the applicant requested[1] that I hold a hearing for the purposes of this IC review.
2. It is clear from s 55(1) the FOI Act that I may decide an IC review without holding a hearing and on the basis of the documents and other material provided by the parties, where there are no 'unusual circumstances' that warrant a hearing being held. If a party seeks a hearing, having given the parties a reasonable opportunity to make submissions on the application for a hearing, I have discretion whether to hold a hearing (see s 55B(3)(c)).
3. In considering the applicant's request, I applied the relevant provisions of the FOI Guidelines, which state that '[t]he IC will only decide to hold a hearing if satisfied that a special reason exists that warrants a hearing being held'. [2] The Guidelines note that '[h]earings are not intended to be a common part of Information Commissioner reviews' and that 'in general, IC reviews will be conducted on the papers'.[3]
4. The FOI Act requires that I conduct an IC review with 'as little formality and as little technicality as is possible' and in 'as timely a manner as is possible' (see s 55(4)). Holding a hearing will generally not serve these requirements, as hearings 'can increase contestability, introduce more formality and prolong the IC review'.[4]
5. I decided not to hold a hearing for the purposes of this IC review. I did not consider there were any 'unusual circumstances' or 'special reason' to warrant a hearing being held. The IC review concerns the amendment or annotation of records, and there was sufficient information before me from the records in issue and the parties' submissions on the matters in contention to enable me to make a proper decision. The particular concern held by the applicant which seemed to be the basis for their request for a hearing does not go to the substance of this IC review, that being whether the record in issue should be amended or annotated. I considered that holding a hearing would unnecessarily lengthen the IC review and introduce technicality and formality that was not warranted, having regard to the issues to be decided.

1. On 9 October 2020 the applicant applied to the Department under s 48 of the FOI Act for a number of amendments to be made to records in the Department's electronic visa processing system that was in use in 2001-2002 (IRIS) concerning a visa application made to the Department by the applicant in 2001. The applicant had become aware of these records when they were provided to the applicant in the form of a document created under s 17 of the FOI Act in response to an FOI request made by the applicant.
2. The applicant's request was consistent with the requirements of ss 48 and 49 of the FOI Act.
3. The records include notes about matters relating to the applicant's 2001 visa application, made contemporaneously by staff at the relevant overseas post in IRIS. The applicant contended the records were incomplete, incorrect or misleading.
4. The Department did not make a decision on the request within the time specified in s 51DA of the FOI Act. Accordingly, the request was deemed by s 51DA(2) to have been refused 30 days after the Department received the request.
5. On 15 January 2021, the Department purported to make a decision on the applicant's request. It agreed to the first amendment requested by the applicant, which was a correction of the spelling of the applicant's first name. It gave effect to this correction by creating an alias for the applicant within its systems with an appropriate note, as it stated that the particular system in which the information was held does not permit direct amendments to be made after a decision on an application has been made. Otherwise, the Department declined to make the requested amendments on the basis that the records were not incomplete, misleading or incorrect, as many of the amendments sought by the applicant were simply reflections of the applicant's personal opinion about various matters. However, the Department advised that it would add the applicant's contentions to the applicant's file in its records.
6. The applicant sought IC review of the Department's decision on 14 January 2021.
7. In an IC review in relation to a request under s 48 of the FOI Act, the agency bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[5]
8. The issue to be decided in this IC review is whether, in accordance with s 50(2) of the FOI Act, the IRIS records should be altered or annotated. In making my decision, I have had regard to the following:
   • the applicant's request for amendment of the records,
   • the Department's purported decision and reasons for decision of 15 January 2021, which I have treated as submissions,
   • the records in issue,
   • the FOI Act[6],
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[7] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[8] and
   • the parties' submissions.

1. Under s 50(1) of the FOI Act, on application under s 48, an agency has discretion to amend a record of information if the agency is satisfied that the record
   • is a document of the agency and contains personal information about the applicant,
   • contains information that is 'incomplete, incorrect, out of date or misleading', and
   • has been used, is being used or is available for use by the agency for an administrative purpose.
2. Under s 50(2), an agency may make the amendment by altering the document (s 50(2)(a)) or by adding a note to it specifying the respects in which the information contained in it is incomplete, incorrect, out of date or misleading (s 50(2)(b)).
3. To the extent that it is practicable to do so, the agency must, when making an amendment under s 50(2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment (s 50(3)).

Whether the records should be amended as requested by the applicant

1. The applicant contended that the records were incorrect, incomplete or misleading because:
   • their first name was spelled incorrectly
   • the records omitted certain events that the applicant considered occurred
   • the records did not accurately record matters such as the applicant's state of mind and the legality of the destruction of the file relating to the applicant's 2001 visa application.
2. For the purposes of s 48(1)(b), the IRIS records were lawfully provided to the applicant and contain information that has been used, or is available for use, by the Department for an administrative purpose. Further, some of them contain 'personal information' ie information or an opinion about an identifiable individual or an individual who is reasonably identifiable.[9]

1. The applicant's name is clearly personal information and accordingly its spelling in the IRIS records is amenable to correction under Part V. It is not in dispute that the spelling of the applicant's first name in the IRIS records is incorrect.
2. The Department took action in relation to this aspect of the IRIS record by creating an alias for the applicant within its Integrated Client Services Environment with the applicant's name spelled correctly, as it advised that the particular system in which the information was held does not permit direct amendments to be made after a decision on an application has been made. The Department provided evidence of this action. The Department also placed an annotation in that system which notes that the applicant considers that the IRIS records are incorrect.
3. The Department advised the OAIC on 5 February 2024 that it is prepared to annotate the applicant's current IRIS record. This would seem to suggest that, contrary to the advice provided by the Department to the applicant, it is possible to make amendments to an IRIS record concerning a particular visa application decision after the decision to which the record relates has been made. Moreover, it is apparent that the IRIS record was added to in 2016 (this addition was a statement that the file had been destroyed).
4. I consider that further action should be taken by the Department to correct the incorrect spelling of the applicant's name in the records. Given that the Department has indicated that it is able to apply an appropriate annotation to the IRIS record, the record should be amended in this away pursuant to s 50(2).

1. In my view, the records are not otherwise incorrect, incomplete, misleading or out of date.
2. The applicant contends that the IRIS records incorrectly describe the applicant's state of mind or demeanour at a meeting that occurred on a particular date. This aspect of the IRIS records contains personal information about the applicant.
3. The Department submitted that this aspect of the IRIS records reflects the opinion of the officer on the day and that the applicant's requested amendment was 'subjective and does not alter the context of the note'. The applicant did not make substantive submissions beyond those in their request under s 48.
4. This aspect of the IRIS records reflects the author's opinion of the applicant's state of mind at the particular time. As the FOI Guidelines make clear, 'the applicant's disagreement with [an] opinion is not a sufficient reason to amend the record'.[10] There is nothing to suggest that there was any bias or impropriety in the formation of that opinion. I find that the IRIS records are not, in this respect, misleading or incorrect and do not require amendment under Part V as requested by the applicant.
5. On the basis that that relevant records were incomplete, the applicant also requested:
   • additions or alterations to the description in the IRIS records of an event that occurred on 23 October 2001,
   • an amendment to the IRIS records to refer to a meeting between the applicant and departmental staff which the applicant states occurred on 5 February 2002, and
   • an amendment to the IRIS records to record a meeting between departmental staff which the applicant states must have occurred between 12 October 2001 and 23 October 2001.
6. These matters concern personal information about the applicant.
7. In relation to these aspects of the applicant's request, the Department submitted
   • It is not possible to insert backdated entries into IRIS as all new entries are electronically date stamped and therefore the Department is unable to insert into the IRIS record the various events which the applicant claimed to have occurred.
   • The applicant has not provided any supporting evidence to indicate that the IRIS records are incorrect and the applicant's disagreement with the version of events recorded is not a sufficient reason to amend the record.
   • In respect of the events of 23 October, the applicant has not provided any evidence to support their version of these events.
   • It is not practicable to conduct enquiries with staff given the passage of time and the fact that relevant staff are no longer employed in the Department and are unlikely to be able to be located now.
8. The applicant did not make substantive submissions beyond those in their request under s 48.
9. As the FOI Guidelines make clear, a decision to amend a record must be based on evidence that tends to indicate that the record is incorrect, incomplete, out of date or misleading. The applicant did not provide any evidentiary material to support these requested additions to the existing record. The Department advised that it had consulted the relevant overseas post in relation to the applicant's request. It appears the only relevant records of the event that occurred on 23 October 2001 are the quite detailed notes made on that date in the IRIS record, and that the only record relating to 5 February 2002 is the information that appears in the IRIS record dated 29 January 2002.
10. I am satisfied that the Department has taken all reasonable steps to obtain evidence in relation to these aspects of the applicant's request, in addition to that in the IRIS records. I agree that it is not practicable to seek further information about events that occurred 24 years ago, given the passage of time and staff turnover.
11. In my view, there is insufficient evidence in existence to justify the amendments to the IRIS record presently under consideration. I find that the IRIS records are not, insofar as they concern events on 23 October 2001, 5 February 2002 and between 12 October 2001 and 23 October 2001, misleading or incorrect and do not require amendment under Part V as requested by the applicant.
12. The applicant also contended that the reference in the IRIS record to a telephone call on 29 January 2002 was misleading, as this record refers to arranging the event which the applicant claims occurred on 5 February 2002 which is not recorded in the IRIS records. The Department submitted that there is no evidence to support the contention that the entry dated 29 January 2002 is misleading given that entries into IRIS are automatically electronically date stamped and no backdated note can be entered into that system.
13. There is nothing in the record itself and no evidence before me to support the contention that the IRIS record dated 29 January 2002 is misleading, or is not an accurate record of events on that day and recorded on that day. I find that this aspect of the IRIS records is not misleading or incorrect and does not require amendment under Part V as requested by the applicant.
14. The applicant requested that the IRIS records be amended to state that a particular file has been destroyed 'unlawfully', and to state that other documents had been returned. Part V of the FOI Act applies where a document of an agency contains personal information that is incomplete, incorrect, out of date or misleading. Accordingly, amendments may be made to the IRIS records to the extent necessary to address any such deficiencies in personal information in those records.
15. The amendments requested by the applicant concern administrative acts and do not involve information or an opinion about the applicant (ie 'personal information'). They are not necessary to make personal information concerning the applicant correct, not misleading, complete or up to date. In my view, Part V does not extend to these requested amendments and therefore they should not be made.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 48 of the FOI Act sets out the circumstances in which a person can apply for an agency to amend or annotate a document that contains personal information about that person. Section 49 of the FOI Act outlines the requirements of that application, namely that the application must:

(i) the document or official document containing the record of personal information that is claimed to require amendment; and

(ii) the information that is claimed to be incomplete, incorrect, out of date or misleading; and

(iii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and

(c) specify an address in Australia to which a notice under this Part may be sent to the applicant; and

(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15(2)(d).

(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:

(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and

(b) the information is incomplete, incorrect, out of date or misleading; and

(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

the agency or Minister may amend the record of information.

(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or

(b) by adding to that document or official document a note:

(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and

(ii) in a case where the agency or Minister is satisfied that the information is out of date--setting out such information as is required to bring the information up to date.

(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.

(1) Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must:

(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and

(b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.

(2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.

(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.

Section 51B of the FOI covers the annotation of records and states:

(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister (as the case may be), the agency or Minister must annotate the document or official document by adding to it the statement provided by the applicant under paragraph 51A(c).

(2) Subsection (1) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.

Part 7 of the FOI Guidelines provides further information about the amendment and annotation of information under the FOI Act.

In so far as when information will be considered 'incorrect' paragraphs [7.17] - [7.18] of the FOI Guidelines explain:

'Incorrect' has its normal everyday meaning. Personal information is incorrect if it contains an error or defect. An example is inaccurate factual information about a person's name, date of birth, residential address or current or former employment.

An opinion about an individual given by a third party is not incorrect by reason only that the individual disagrees with that opinion or advice. The opinion may be 'correct' if:

• it is presented as an opinion and not objective fact,
• it correctly records the view held by the third party, and
• is an informed assessment that takes into account competing facts and views.

As for when information will be considered 'incomplete', 'misleading', or 'out of date' the FOI Guidelines provide:

Personal information is incomplete if it presents a partial or misleading picture, rather than a true or full picture. For example, a statement that an individual has only two rather than three children will be incomplete if that information is held for the purpose of, and is relevant to, assessing a person's eligibility for a benefit or service.

Information is misleading if it could lead a reader into error or convey a second meaning which is untrue or inaccurate. For example, an applicant may claim that a record of opinion or advice is misleading because it does not contain information about the circumstances surrounding that opinion or recommendation. The applicant may seek to have incorporated in the document information that sets out the context for that opinion or recommendation.

Personal information is out of date if it contains facts, opinions or other pieces of information that are no longer current. An applicant may request that more recent information be inserted into the record as their circumstances change. For example, an applicant may request amendment of a statement that the applicant lacks a particular qualification or accreditation that they have subsequently obtained.

Personal information about a past event may have been accurate at the time it was recorded, but have been overtaken by a later development. Whether that information is out of date will depend on the purpose for which it is held. If point in time information from the past is required for the particular purpose, the information will not be out of date for that purpose. In these circumstances, an agency or minister must still ensure that the information is complete and not misleading.[11]

Regarding the amendment of recorded opinions, paragraph [7.24] of the FOI Guidelines explains:

An agency or minister should be careful where a request for amendment relates to a document containing advice, recommendations or opinions of a third party (including a group). Such records should be amended only if the information is incorrect or incomplete, or if the author was shown to be biased or unqualified to form the opinion or to have acted improperly, or if there is some other clear impropriety in the formation of the opinion. The applicant's disagreement with the opinion is not a sufficient reason to amend the record.

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

If you would like access to the information that we hold about you, please contact FOIDR@oaic.gov.au. More information is available on the Access our information page on our website.

[1] Such applications may be made under s 55B(1) of the FOI Act.

[6] In particular ss 48 and 50 (set out at Annexure A).

[7] See Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[8] Relevant provisions of the Guidelines are set out in Annexure A.

[9] See relevant definitions in s 4(1) of the FOI Act and s 6(1) of the Privacy Act 1988).

[10] FOI Guidelines [7.24]; Grass and Secretary Department of immigration and Border Protection [2014] AATA 751, [39]-[44].

[11] FOI Guidelines at [7.20] - [7.23] (footnotes omitted).