Key published decisions applying Section 41 IP Act

AD6L9H and Department of Health (Unreported, Queensland Information Commissioner, 31 August 2010)

The applicant applied to the Department of Health (QH) to amend personal information that he claimed was inaccurate. The applicant sought deletion of information contained in the applicant's son's medical records that stated his son was admitted to hospital after deliberately ingesting tablets following a fight with the applicant.

QH was not satisfied that the information was inaccurate, incomplete, out-of-date or misleading but nonetheless added a notation detailing the applicant's concerns. QH refused to delete the information, noting that the IP Act did not permit amendment of information by way of deletion.

The Information Commissioner considered whether the IP Act provided for amendment by way of deletion and whether the information was inaccurate, incomplete, out of date or misleading.

Deletion under the IP Act

The Information Commissioner adopted the following approach in Doelle and Legal Aid Office (Qld),⁹ which considered section 55 of the FOI Act (repealed):

The ordinary meaning of 'altering' for the purposes of s. 55 does not, in my view, include the destruction or disposal of the document containing the information which is being altered, but rather involves changing the information so that it becomes different in some respect. This may involve deletion of the information which is found to be inaccurate, incomplete, out-of-date or misleading but it does not encompass the destruction or disposal of the entire document'

Therefore, the Information Commissioner found that information may be altered by way of deletion under section 74 of the IP Act.

'Inaccurate' information

Amendment provisions do not extend to determining disputed questions of opinion where the recorded opinion was 'actually held and accurately entered in the official records'. [15] In considering whether information is inaccurate, the focus is with 'the accuracy of official records, not with the merits or legality of the official action recorded in them'.¹⁰ [16]

The right of amendment does not extend to rewriting the document in the words of an applicant ¹¹ or to substituting an applicant's own opinion for that of the document author. ¹² [17]

Here, the relevant information described the reasons for the applicant's son's admission to hospital. The information recorded a medical practitioner's understanding of the reasons for the applicant's son's admission. The relevant information was considered to be an accurate record of the opinion 'actually held and accurately entered in the official records' at the time. [21]

Accordingly, the Information Commissioner found the relevant information was not inaccurate and there was no basis on which to amend the information by way of deletion.

⁹ Doelle and Legal Aid Office (Qld) (1993) 1 QAR 207.
¹⁰ See Crewsdon v Central Sydney Area Health Service [2002] NSWCA 345.
¹¹ See Re Traynor and Melbourne & Metropolitan Board of Works (1987) 2 VAR 186.
¹² See Lee and Ministry of Education (1989) 3 VAR 429.