The bundle of documents (Exhibit A in this proceeding) are to be:

1. "Notice Under the provisions of section 39 of the Freedom of Information Act (Vic) 1987", being a three page document over the name "Sue Smeaton";
2. A letter dated 20 November 2003 from Allianz Australia Workers' Compensation (Victoria) Limited ("Allianz") addressed to Sue Smeaton. The letter advises Ms Smeaton that her claim that she be provided with a night carer is rejected; and
3. A "Sworn Statement by Dr Nigel Strauss. Psychiatrist, for use in VCAT proceedings Sue and Tony Smeaton and Victorian Workcover Authority ("VWA")" dated 4 December 2007; and

1. attaching to the top of all copies of a letter from Allianz to Mr Tony Smeaton dated 14 May 2004 (Exhibit Z in this proceeding) on decision file number 09 92 50790 a copy of the letter annotated by the Smeatons (Exhibit B in this proceeding) to correct what they say are inaccuracies in the letter the above letter.

2 Otherwise the application of the applicants is dismissed.

Re Mann and Medical Practitioners Board of Victoria (1997) 12 VAR 142

Re Buhagiar and Victorian Police (1989) 2 VAR 530

G v Health Commission of Victoria (Unreported, County Court, 13 September 1984)

Stephens v Victoria Police 1998 2 VAR 236

Re Griffiths v Victoria Police 2 VAR 595

1. In October 2008, the Smeatons asked the Victorian Workcover Authority ("Workcover") to amend two letters in its control. They were:
   1. a letter dated 20 November 2003 from Allianz Australia Workers' Compensation (Victoria) Limited ("Allianz") addressed to Sue Smeaton and signed by Sean Hayes, Team Leader. Allianz advises Ms Smeaton that her claim that she be provided with a night carer and that Tony Smeaton be employed as her carer is rejected ("the Decision Letter"); and
   2. a letter from Allianz to Mr Tony Smeaton dated 14 May 2004 ("the Review Letter"), apparently signed by Anya Misiewicz, Team Manager (see below as to the authorship). Allianz advises it has reviewed the decision set out in The Decision Letter and confirms the earlier decision.
2. The Smeatons objected to statements in both letters that:
   1. that Tony Smeaton had requested to be employed as Sue Smeaton's night carer; and
   2. that Dr Nigel Strauss had provided a verbal report to Allianz that in his opinion, "it is not sound to give carer status to Mr Smeaton"[1].
3. They say that Sue Smeaton made the request and Dr Strauss never gave the verbal report.
4. By 19 December 2008, Workcover had refused the Smeaton's request.
5. In January 2009, VCAT received an application from the Smeatons under the Freedom of Information Act 1987 (the Act) for a review of Workcover's decision not to amend the documents.
6. On 15 and 16 September 2009, I heard the review.
7. In this application, on review, VCAT has the same powers as Workcover. VCAT is to make a fresh decision on all the material before it, and to make the correct or preferable decision. The issue before me was whether I should order that the documents in question be amended.
8. At the hearing, the Smeatons sought orders that Workcover:
   1. attach to the inside of the front cover of the decision file number 09 92 50790, a bundle of documents on red or pink paper with a covering note which says "This bundle of documents has been placed on claim file number 09 92 50790 by order of VCAT dated (to be inserted) in proceeding number G71/2009 brought by Sue and Tony Smeaton and should be read prior to further review of this file".

1. "Notice Under the provisions of section 39 of the Freedom of Information Act (Vic) 1987", being a three page document over the name "Sue Smeaton";
2. The Decision Letter; and
3. A "Sworn Statement by Dr Nigel Strauss. Psychiatrist, for use in VCAT proceedings Sue and Tony Smeaton and Victorian Workcover Authority ("VWA")" dated 4 December 2007. Dr Strauss says that he never provided a verbal report an "I have never expressed the view that Tony Smeaton was not a suitable person to be appointed Susan Smeaton's paid carer."; and

1. either:
   1. replace all copies of the Review Letter with a copy of the Review Letter annotated by the Smeatons to correct what they say are inaccuracies in the letter (the Smeatons' preference) or;
   2. attach to the top of all copies of the Review Letter on decision file number 09 92 50790 a copy of the annotated letter.

9 Workcover sought that I affirm its decision because:

1. the documents in question did not relate to the personal affairs of the Smeatons, in the context of section 39 of the Act: or if I found they did
2. Workcover's decision was justified.

10 However, Workcover did not otherwise oppose the making of the orders set out in paragraph 8(a) and 8(b)(ii) above. Toward the end of the hearing counsel stated that Workcover would have consented to those orders set out in paragraph 8(a) and 8(b)(ii) being made by consent of the parties. The Smeatons did not consent to this.

1. Section 50(2)(e) enables an applicant to apply to VCAT for review of a decision by an agency not to amend a record following a request under section 39.
2. Section 39 sets out the circumstances in which a person may request an amendment. It says,

Where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information (or in the case of a deceased person, that person's next-of-kin) that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression.

1. Section 41gives power to make an amendment, either by altering the record or by adding an appropriate notation to the record. It says,

Where an agency to which or Minister to whom a request is made under section 39 decides to amend the record of information to which the request relates, the agency or Minister may, in its or his discretion, make the amendment either by altering the record or by adding an appropriate notation to the record.

1. Section 49 sets out the form of the correction or amendment. It says,

Where a request for correction or amendment under section 39 has been acceded to by an agency, the correction or amendment may take the form of a notation of the original document but no correction or amendment shall be made which has the effect of deleting or expunging the information which has been corrected or amended or of destroying the document except with the concurrence of the Keeper of Public Records.

1. Section 46 says (in part) that where a request to amend a record is refused and on review VCAT affirms the decision not to amend the record, the person who made the request may, by notice in writing, require the agency to add to the record a notation:
   1. specifying the respects in which the information is claimed by him to be incomplete, incorrect, out of date or misleading; and
   2. in a case where the information is claimed by him to be out of date - setting out such information as is claimed to be required to bring up to date or complete the information.

1. The following is drawn from Deputy President Coghlan's decision in Re Mann and Medical Practitioners Board of Victoria (1997) 12 VAR 142. Deputy President Coghlan agreed with the following passages.
2. Judge Jones in Re Buhagiar and Victorian Police (1989) 2 VAR 530, considered the application of Part V of the Act. He said, at pp.531 and 532,

The amendment of personal records is dealt with in Pt V of the Act. The rationale for these provisions is well caught by the following comments of Gesell J about the amendment provisions of the US Privacy Act: RR v Department of the Army 482 F Supp 770 (1980) at 773:

'Accuracy of government recorded personnel information is particularly important in our complex and bureaucratically interrelated society, where an individual's rights and benefits may well be influenced or determined by what some government agency has to say about him. The prejudice resulting from inaccuracy may affect determinations reached by third parties, public or private, as well as those made by the record-keeping agency. Of course no individual is entitled to shape or color such information according to his own whims or preferences. On occasion accuracy is achieved only be allowing a disputed question of fact or judgment previously recorded to remain in the record, qualified by subsequent data. On the other hand, it may be necessary to eliminate clear mistakes of fact or irresponsible judgment from an individual's file so as not to prejudice prospects for a fair determination of his rights or benefits.'

The purpose of s 39 is summed up by the following comments of Judge Rendit in G v Health Commission of Victoria (County Court, 13 September 1984), p 10:

'What s 39 is about is ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm the applicant or misrepresent personal facts about the applicant. It is concerned that the third persons reading the personal information do not get the wrong impression. It is to safeguard against this occurring, that rights are given to an applicant under s 39, to correct his personal record.'

With respect, I also concur with the following comments of Judge Rendit in G's case about the operation of s 39:

'A misleading statement or impression is one which is untrue or is likely to lead to an erroneous conclusion...whether there would be misleading impressions...is objective. What, on the reading of the material, is fairly and reasonably open as an interpretation, not what would some person failing to apply reason or who was biased or who failed to act fairly and reasonably in interpreting the material get, as an impression (at 10-11).

There is a difference between a misleading impression and an inaccuracy, although each will overlap the other to a large extent. One can readily envisage circumstances where the recorded facts are inaccurate, and also give a misleading impression. Equally, recorded facts which are accurate may yet give a misleading impression, either because of incompleteness or because the language used in recording the facts, whilst accurate, yet would convey a misleading impression (at 9).'

Section 41 of the Act provides that where an agency decides to amend the recorded information to which a request relates it may in its discretion make the amendment either by altering the record or by adding an appropriate notation to the record. Section 42 sets out what is to be included in a notation to the record. Section 49 of the Act states that no correction or amendment shall be made which has the effect of deleting or expunging the information which has been corrected or amended or of destroying the document except with the concurrence of the Keeper of Public Records.

Mr Howie in [Stephens v Victoria Police 1998 2 VAR 236] at 239 identified four useful categories to consider in deciding whether there should be amendment of information in the nature of opinion[2]. With respect, I agree with his categories. They are:

'1. The facts underlying such opinion have been thoroughly discredited or have been demonstrated to be totally inadequate;

2. The person forming such opinion was tainted by bias or ill will, incompetence or lack of balance, or necessary experience;

3. The factual substratum underlying the opinion is so trivial as to render the opinion formed dangerous to rely upon and likely to result in error;

4. The facts upon which the opinion was based were misapprehended.'

1. Tony Smeaton. He said it was Sue Smeaton who in 2003 requested Allianz that he be employed as her night carer. At the time, he had worked renovating houses and had previously worked as a floor layer and forklift driver. In order to be employed as Sue Smeaton's night carer, he had been registered with Dial An Angel, a company through which he could be so engaged. While Allianz never agreed to him being employed as night carer, in 2004 another insurer agreed to his employment; 2. Sean Hayes, who at the time he signed the Decision Letter was employed by Allianz. He said Dr Joe Giramondo had verbally advised him that Dr Nigel Strauss was of the opinion that Tony Smeaton should not be employed as night carer for Sue Smeaton, as he stated in the Decision Letter. He had not signed the Review Letter (this was put to him in cross-examination). He thought it was probably signed by Anya Misiewicz, a team manager formerly employed by Allianz;

1. Dr Joe Giramondo, Medical Practitioner, who at the times relevant to the Decision Letter and the Review Letter was employed by Allianz. He said at the relevant times in his opinion, Tony Smeaton should not be employed as night carer for Sue Smeaton. He could not recollect whether he had received verbal advice from Dr Strauss about the issue of Tony Smeaton's suitability as night carer for Sue Smeaton or whether he had advised Sean Hayes of such a verbal report. There were no written records (on Allianz's computer system) of such verbal advice; and

1. Dr Nigel Strauss, Psychiatrist (not employed by Allianz), who at Allianz's request gave a written opinion dated 15 October 2003 to Allianz which assessed Sue Smeaton's health and treatment. He said he had never held the opinion that Tony Smeaton was not a suitable person to be appointed as Susan Smeaton's night carer. He had no recollection of giving a verbal report to Allianz and it was his practice not to give verbal reports.
2. I admitted a variety of documents into evidence, including the Decision Letter, the Review Letter, medical reports and witness statements.

1. Counsel for the Smeatons first submitted that the 'initial burden' the applicants faced of providing evidence making out a prima facie case that information in the documents is inaccurate, incomplete, out of date or would give a misleading impression was met (see Victorian Administrative Law, Volume 2, Freedom of Information, Kyrou & Pizer, Lawbook Company [2416/1A ff]). After hearing opposing submissions from counsel for Workcover, I ruled the initial burden was met because prima facie cases had been made that the Decision Letter and the Review Letter; were;
   1. Inaccurate and would give a misleading impression with respect to who was seeking to have Tony Smeaton employed as Sue Smeaton's night carer; and
   2. Inaccurate and would give a misleading impression about Dr Strauss' opinion about the employment of Tony Smeaton as Sue Smeaton's night carer.
2. As Kyrou & Pizer describe, Workcover then bore the 'ultimate burden' of justifying its decision.
3. Counsel for Workcover submitted;
   1. the Decision Letter and the Review Letter do not contain information relating to the personal affairs of the Smeatons. They contain reasons for Workcover's decisions about claims under the Accident Compensation Act 1985 (Vic). The decisions are reviewable under that Act. They relate to Sue Smeaton's legal rights and relationships under that Act, which she could have appealed. The appeal right contraindicates the expression of personal affairs.

The term "information relating to the personal affairs of a person" in section 39 should be read as narrowing the class of documents about which an applicant may request amendment. The definition of the same term in section 33 of the Act (which is broad, such as including "information that identifies any person" - see 33(9)) should not be used. Section 33 is protective in that it prevents the disclosure to others of information about a person.

1. If I conclude the documents contain information relating to the personal affairs of the Smeatons, then under section 41 I have discretion as to whether or not to amend them. Among other authority, Counsel cited Mann v Medical Practitioner's Board (see above) and the quoted statements about Mr Howie's four categories and Judge Rendit's description of section 39's purpose. He submitted section 39 should not be used to challenge Workcover's decisions as set out in the two letters. Appeal rights should be used for that purpose.

Counsel opposed the order sought that I order Workcover replace all copies of the Review Letter on decision file number 09 92 50790 with a copy of the letter annotated by the Smeatons to correct what they say are inaccuracies in the letter (the Smeatons' preference).

1. If I refuse the application, then by operation of section 46 of the Act, the Smeatons will be able to place the documents they seek to have placed on the file on the file. Therefore, my refusing the application will not in a practical sense change the result, except the Review Letter will not be replaced, which is the Smeaton's preference.

1. Counsel for the Smeatons opposed the above submissions. He cited authority for interpreting broadly that the two documents contain "information relating to the personal affairs of a person" (such as Griffiths v Victoria police (1987) 2 VAR 595). He cited authorities in support of exercising my discretion under section 41 to achieve the result the Smeaton's desire. He said that the file in question was not a closed file. While it may be inactive, a further claim by Sue Smeaton could cause it to be used.

1. The witnesses struck me as honest and credible. Taking all the evidence into account, I find:

1. The documents have been released to Sue Smeaton and Tony Smeaton (as was accepted by Workcover); 2. Sue Smeaton and Tony Smeaton both took part in the process of requesting that he be employed as night carer. This is in part shown by the email from Sue Smeaton to "Ms Bristo" at Allianz dated 28 April 2003 where she wrote, "Further to your conversation with my husband Tony Smeaton this morning, I am formally requesting him to be my night time carer" (Exhibit D);

1. The Decision Letter wrongly states and the Review Letter wrongly gives the impression that Tony Smeaton (by implication as the main actor) requested that he be appointed as Sue Smeaton's night carer;

1. Dr Nigel Strauss never gave a verbal report to Dr Joe Giramondo that Tony Smeaton was not a suitable person to be appointed as Susan Smeaton's night carer. At the hearing, counsel for the Smeatons and for Workcover agreed this was the appropriate finding, given Dr Strauss' evidence; and 2. The Decision Letter wrongly states that,

On the 22nd of October 2003 Dr Strauss provided Allianz Australia with a verbal report confirming that although you require the assistance of night carer [sic] in his opinion it is not sound to give carer status to Mr Smeaton.

1. The statements in the Review Letter that Dr Strauss' opinion was as was stated in the Decision Letter are incorrect.

1. For the purposes of my decision, there was no need to make findings about the process that led to the Decision Letter wrongly (in my view) stating that in Dr Nigel Strauss's opinion, Tony Smeaton should not be employed as night carer for Sue Smeaton.

1. I decided the Decision Letter and the Review letter are documents containing information relating to the personal affairs of Sue Smeaton and Tony Smeaton. Those affairs are who made the application and statements about whether Tony Smeaton was suitable for the role of night carer for Sue Smeaton.
2. In reaching this conclusion, I had regard to Rowlands J in Re Griffiths v Victoria Police 2 VAR 595. He considered the meaning of the phrase "information relating to the personal affairs of a person" in section 39, referred to the Shorter Oxford English Dictionary and said at 596,

I think the legislature contemplated that s 39 would be used generally to correct erroneous information concerning an individual retained by an agency for its purposes.

1. Further, the fact that the documents are also records of a decision, does not rob them of their other attribute of containing information relating to the Smeaton's personal affairs. The fact that the documents record decisions is relevant when it comes to exercising the discretion under section 39 and the limits to the exercise of the discretion.
2. In my view it is appropriate that orders be made as set out at paragraph 8(a) and 8(b)(ii) above (not replacing the Review letter), because,

1. Paraphrasing Judge Rendit, as quoted above, section 39 should be used to ensure that personal information concerning the Smeatons, which may be read by third parties, does not unfairly misrepresent personal facts about them with the risk that third parties reading the personal information may get the wrong impressions that Tony Smeaton was the main actor in the application and that Dr Strauss thought him unsuitable to be Sue Smeaton's night carer; 2. In terms of Gessell J 's 'four categories', "The facts upon which the opinion was based were misapprehended";

1. The orders will not interfere with the integrity of the decision file. The added documents will sit in the same file as the original documents. A reader will understand there is disagreement about the documents and will be able to understand both points of view.[3] This action fits the scheme of the Act in sections 39 ("correction or amendment"), 41 ("adding an appropriate notation to the record") and 49 ("a notation of the original document", which does not have, "the effect of deleting or expunging the information which has been corrected or amended or of destroying the document").
2. It is not appropriate that the Review Letter be replaced as discussed at paragraph 3(b)(i) above. Replacement could result in a reader of the file finding it difficult to understand how the amended Review Letter came to be on the file. In my view, Parliament intended to avoid that result.

[2] Mr Howie was quoting Gessell J in PR v Department of Army 482 F Supp 770 (1980).

[3] While I have no view on the following matter, Workcover may decide to add a copy of this decision to the file, to further explain the situation.