3DT2GH and Department of Housing and Public Works

REASONS FOR DECISION

Summary

1. The applicant sought review of the Department of Housing and Public Works’^[1] (Department) decision to refuse to amend, under the Information Privacy Act 2009 (Qld) (IP Act), parts of a letter from the Department to the applicant dated 3 October 2001 (Letter).

2. The Letter canvassed issues concerning the applicant’s public housing tenancy.  The applicant took issue with the phrasing of the Letter, and submitted that it was inaccurate, incomplete and misleading in various respects.  The applicant contended that these alleged flaws meant the Letter contained misleading implications that were unfairly harmful to him.

3. The Department was entitled to refuse to amend the Letter because the information was not inaccurate, incomplete, out of date or misleading, the author’s opinions and views as expressed in the letter having been actually held and accurately recorded. 

Background

4. Significant procedural steps relating to the application and external review process are set out in the appendix to this decision.

Reviewable decision

5. The decision under review is the Department’s decision to refuse to amend the Letter as requested by the applicant.^[2]

Evidence considered

6. The evidence, submissions, legislation and other material I have considered in reaching my decision are as disclosed in these reasons (including footnotes and appendix).

Requested amendments

7. The applicant relevantly sought six amendments to the Letter.  I have discussed each request below.

Relevant law

8. Under the IP Act an individual has a right^[3] to apply for amendment of documents of the agency containing the individual’s personal information^[4] where the following requirements are satisfied:

a) the applicant has previously obtained access to the document said to contain the applicant’s personal information;
b) the information which the applicant seeks to amend is the applicant’s personal information; and
c) the personal information is inaccurate, incomplete, out of-date or misleading.^[5]

9. The Department carries the ultimate legal onus to justify its decision.^[6]  However, in an external review of a decision to refuse to amend information:

[a] practical or evidentiary onus shifts to [an applicant] to provide evidence to support …[their] entitlement to relief under [the IP Act] on the basis that the documents in issue contain information that is inaccurate, incomplete, out-of-date or misleading.^[7]

10. Importantly, satisfaction of the three requirements set out in paragraph 8 does not itself entitle an applicant to amendment.  An agency may still refuse to amend a relevant document.  This is due to the opening words of section 72(1) of the IP Act, which provide:

72         Grounds on which amendment may be refused

(1)     Without limiting the grounds on which the agency or Minister may refuse to amend the document, the agency or Minister may refuse to amend the document because—

(a)        the agency or Minister is not satisfied—

(i)         the personal information is inaccurate, incomplete, out of date or misleading; or

(ii)         the information sought to be amended is personal information of the applicant; or

(iii)        if the application is purportedly made by an agent—that the agent is  suitably authorised to make the amendment application.

(b) …

(My emphasis)

11. Section 72 of the IP Act thus confers on a decision-maker discretion whether to grant or refuse an amendment application.  While it sets out specific grounds on which amendment may be refused, the decision-maker is not limited solely to those grounds. 

12. Consequently, even where an applicant has satisfied each of the requirements noted above, an agency still retains the discretion to refuse to amend a relevant document.

Findings

13. There is no dispute that the applicant has previously obtained access to the Letter, or that it contains his personal information,^[8] (dealing as it does with his public housing tenancy).  I find that each of these requirements is satisfied.  The applicant was therefore entitled to apply to have the information amended under the IP Act.

14. The issues to be determined then are:

• whether the applicant has demonstrated that the information is inaccurate, incomplete, out of date or misleading; and, if so
• whether, under section 72(1), amendment of the information may still be refused.

General principles

15. Amendment provisions such as those found in the IP Act are aimed at:

… 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 …^[9]

16. The provisions are, however, limited in their scope and effect, and there are a number of considerations a decision-maker may appropriately take into account in determining whether or not to exercise the discretion to amend a particular document.

17. The Information Commissioner has previously recognised, for example, that ‘the following criteria may “usefully be borne in mind … when considering whether the discretion should be exercised …”:^[10]

(a) the character of the record, in particular whether it purports to be an objective recording of purely factual material or whether it merely purports to be the record of an opinion/report of one person;
(b) whether the record serves a continuing purpose; 
(c) whether retention of the record in unamended form may serve a historic purpose; 
(d) whether the record is dated; 
(e) whether amendment is being sought as a de facto means of reviewing another administrative decision; 
(f) the extent to which access to the record is restricted; 
(g) whether creation of the record or any of its contents was induced by malice.
(h) whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute.

18. Additionally, in considering whether to exercise the discretion to refuse to amend information, a decision-maker may take into account the fact that it is not the purpose of the amendment provisions to:

• re-write history,^[11] as this destroys the integrity of the record-keeping process;
• determine disputed questions of opinion (including expert opinion), when that opinion was actually held and accurately entered in the official record;^[12]
• re-write a document in words other than the author’s;^[13]
• review the merits or validity of official action;^[14]
• correct any perceived deficiencies in the work undertaken by agencies or re-investigating matters.^[15]

19. In this case, the observations of Deputy President Todd of the Administrative Appeals Tribunal in Cox^[16] as to the nature of the amendment exercise are also useful.  In that case, the Deputy President noted that what is amended under amendment provisions:

…is not information but a record of information. Thus incorrect information can be recorded correctly. The record ought not be amended simply because, qua record, the information that it correctly records is incorrect information. Mr Coppel offered the example of an officially prepared criminal record recording a conviction which should never have occurred. It remained an accurate record of convictions. If however a conviction ought never have occurred but had nevertheless done so and been recorded, it would not be for the agency or the Tribunal to remove that conviction from the record. By parity of reasoning, it was not for an agency or the Tribunal to cure what was considered to have been an incorrectly formed opinion.^[17]
(My underlining).

20. With these principles in mind, I will now consider the applicant’s specific amendment requests.

Requested amendment (a)

21. The Letter appears to have been written by the authoring officer following a telephone conversation between the officer and the applicant.  The Letter seeks to confirm the substance of that conversation as understood by the author, in concise and summary terms.

22. The opening paragraph of the Letter states the author’s intention ‘to confirm the agreement made by telephone earlier today’.

23. The applicant submits^[18] the reference to an ‘agreement’ is inaccurate.  He asserts that there was no agreement between himself and the Department and accordingly, the words ‘the agreement made by telephone’ should be replaced with ‘our telephone conversation’.^[19]  The applicant contends^[20] the use of the term ‘agreement’ implies he breached an agreement, which is unfairly harmful to him.

24. I do not accept the applicant’s submission. 

25. A review of the Letter clearly indicates the author was of the opinion an agreement or understanding had been reached during her conversation with the applicant.  The fact the applicant does not agree with the author’s opinion in this regard does not, of itself, establish inaccuracy.

26. To enliven the right to have the requested amendment considered, it must be demonstrated, on the balance of probabilities, that not only was there no agreement, but that the author had not believed there to be same: that is, that she had not ‘actually held and accurately entered into official records’ the recorded view as to their agreement.^[21]

27. There is no objective evidence before me to suggest that this was the case.

28. I note also that there is nothing either on the face of the letter or otherwise to support an interpretation implying the applicant breached any ‘agreement’: the author was clearly referring to an ‘agreement’ made during her conversation with the applicant, which could not logically have been breached at the time she wrote the letter, given both events transpired on the same day. There is no basis to infer the implication asserted by the applicant, and, consequently, no possibility of an independent observer obtaining a ‘wrong impression’ of the kind the applicant apprehends.

29. I am not satisfied that the relevant paragraph is inaccurate, incomplete, out of date or misleading.  Accordingly, the discretion to consider whether to refuse to amend is not enlivened, and I am not required to consider the requested amendment any further.^[22]

Requested amendment (d)

30. The applicant submits that the second paragraph of the Letter is incomplete, as it does not set out the reasons the applicant contends the Department did not proceed with its tribunal action against him, ie, that complainants refused to testify.  The second paragraph of the Letter reads:

On 24 September 2001 the application to the Small claims tribunal (sic) to terminate your tenancy was withdrawn. The application was actioned after complaints from neighbours had been received that you were running a music school from your public housing residence.

31. The applicant claims the absence of the reasons for the adjournment^[23] of the Department’s application ‘leaves the letter inaccurate, incomplete and misleading’, which given the ‘tone and wording of the letter implies…[his] guilt’,^[24] and ‘unfairly harms’^[25] him. The applicant requests the letter be amended by inserting, at the end of the second paragraph, the sentence:^[26]

However the complainants have now declined to testify so the Department is not proceeding with the court action.

32. I do not accept the applicant’s submissions. The purpose of the amendment provisions in the IP Act is not to satisfy an applicant’s subjective apprehensions, but, as noted in paragraph 15 above, to ensure third parties reading the record do not form a ‘wrong impression’.  The only impression reasonably open on reading the relevant paragraph is that the tribunal proceedings against the applicant were essentially discontinued.  This is a statement of fact that I do not understand the applicant to be contesting.

33. That the Letter does not go on to record the underlying reasoning behind this discontinuance does not of itself render that statement incomplete. The fact a particular document does not contain everything it possibly might concerning relevant issues as they involve the individual seeking amendment is not of itself a basis for finding relevant information is incomplete.

34. The key question is whether what information the document does contain is, objectively assessed, inaccurate, incomplete or misleading: again, whether the document is capable of leading a third party observer into a wrong impression.  The relevant paragraph is, in my view, a concise, complete and, objectively assessed, accurate^[27] statement of fact.

35. I am not persuaded the relevant paragraph is inaccurate, incomplete, out of date or misleading.  Accordingly, the discretion to consider whether to refuse to amend is not enlivened, and I am not required to consider the requested amendment (d) any further.

Requested amendments (e) and (f)

36. The third paragraph of the Letter states:

Today in our conversation you have assured me that at no time in the future will you conduct a business from your premises and endeavour to considerate to (sic) the peace and privacy needs of your neighbours.

37. The applicant submits that during his telephone conversation with the Departmental officer he denied the allegation he conducted a business, relevantly submitting that he had advised her he ‘had not held guitar lessons on…[his] premises, in compliance with the earlier breach letter dated 28 May 2001’^[28] and ‘firmly denied the allegation’.^[29]

38. The applicant contends that ‘selectively quoting my future assurance without quoting my denial of the allegations’ creates a ‘misleading impression’,^[30] and that accordingly, the Letter:

implies that I had held lessons on the premises, and that the department ceased action to evict me because of an assurance made.  Those implications are dishonest, inaccurate, misleading and unfair.^[31]

39. The applicant therefore essentially seeks to have the third paragraph deleted,^[32] and replaced with the following:

I note that you deny the allegation.

Today in our conversation you informed me that you had not conducted guitar lessons on the premises and that you had no intention to do so in the future.

40. As noted above at paragraphs 33-34, the fact a particular document does not record everything it possibly might concerning a particular individual does not of itself render the document inaccurate, incomplete or misleading. The question is whether what information the document does contain is, objectively assessed, inaccurate, incomplete or misleading; essentially, whether the document is capable of leading a third party observer into wrong impression. 

41. No wrong impression arises in this case.  The Letter records statements of fact, relevantly, that:

• complaints were made against the applicant,
• the Department initiated relevant proceedings, and
• those proceedings were subsequently discontinued. 

42. The Letter also records the author’s understanding that the applicant had assured her he would not conduct business operations from his premises in the future.

43. The applicant does not, as I understand, in any way dispute the veracity of those central facts. 

44. Nor, as I understand his submissions, does he contest that he gave the assurance,^[33] and I can identify no probative evidence suggesting the author did not believe all of this to be correct.  That the Letter does not also record denials the applicant asserts he made during the relevant conversation does not of itself render what is contained in the letter inaccurate or incomplete. 

45. To sustain a finding that the Letter, absent the asserted denials, is misleading would, in the circumstances, essentially require me to be satisfied the Letter clearly implied the applicant had been conducting the teaching activities of which he was accused (and which are not actually mentioned in the Letter).  Objectively assessed, I do not consider it does.  When read in context, the relevant statement appears to me to reflect the author’s impression she and the applicant had essentially reached a mutual understanding that the applicant’s present and future conduct was and would continue to be appropriate. 

46. In any event, even if the applicant could demonstrate the information was inaccurate, incomplete or misleading, this would, as noted, merely enliven my discretion to consider the applicant’s requested amendments.  There are, in this case, two considerations that would justify an exercise of the discretion contained in section 72 of the IP Act to nevertheless refuse to amend the Letter in the terms as sought by the applicant.

47. Firstly, in assessing whether to make or refuse amendment requests of this kind, it is legitimate for a decision-maker to consider the context in which the particular document appears, including, for example, ‘whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute’.^[34]

48. In this case, the Letter forms part of a much larger body of correspondence between the Department and the applicant concerning his tenancy, including letters from the applicant to the Department clarifying the details of the tenancy dispute and containing his specific denials.^[35] The Letter merely comprises a summary account of a specific telephone conversation, from one participant’s perspective – a ‘snapshot’ of particular aspects of the applicant’s tenancy issues at a given point in time. 

49. As I have noted above, I do not consider that that snapshot is, even when read in isolation, inaccurate, incomplete, out of date or misleading, but certainly not when read in conjunction with surrounding documents. 

50. Secondly, and perhaps more significantly, it is not the purpose of the amendment provisions to permit the ‘re-writing of history’, particularly where to do so would violate the integrity of the original record.  Yet this is precisely what would occur were the amendments requested by the applicant to be made. 

51. To replace words actually used by the authoring officer with the text sought by the applicant would result in a contrived document containing invented contents, essentially putting words into the mouth of the author in a manner that would distort the official historical record.  This alone would, in my view, justify an exercise of the discretion to refuse to amend the Letter in terms as requested by the applicant.

52. I am not satisfied that the relevant paragraph is inaccurate, incomplete, out of date or misleading. Accordingly, the discretion to consider whether to refuse to amend is not enlivened, and I am not required to consider requested amendments (e) and (f), which, in any event, I would consider may be refused.^[36]

Requested amendment (g)

53. The applicant contends^[37] that the following paragraph of the Letter implies he breached the tenancy agreement:

I have agreed that the department wishes you to sustain your tenancy providing you agree to abide by the residential tenancy agreement signed at the commencement of the tenancy.

54. The applicant seeks to have this paragraph replaced with the following:

I confirm that your tenancy will continue under the same terms and conditions as those in the residential tenancy agreement you signed at the commencement of the tenancy.

55. There is nothing in the material I have considered to support a finding that the relevant paragraph is inaccurate, incomplete, out of date or misleading. 

56. Indeed, given the paragraph is a unilateral statement of assurance reflecting the state of mind of a person other than the applicant, for inaccuracy etc. to be demonstrated would essentially require evidence establishing the author had never given the relevant assurance, nor understood herself to have done so – or, perhaps alternatively, that she had made an entirely contradictory statement to the applicant at or about the date the letter was written.

57. I can identify no evidence to this effect.

58. Further, I am not satisfied the relevant paragraph gives rise to an implication of the kind argued by the applicant.  Objectively construed, it simply affirms that the Department would maintain the applicant’s tenancy provided he abided by relevant lease conditions. The statement is in my view nothing more than a general reminder of tenancy obligations and does not of itself imply the applicant had breached the tenancy agreement. 

59. In any event, even if the applicant had demonstrated inaccuracy etc., I would be inclined to refuse to amend the relevant information for the same reasons as explained at paragraphs 46-52.  Amending a piece of official correspondence written, sent and received many years ago so as to reframe it in accordance with the applicant’s subjective perceptions and preferences, would, in my view, violate the integrity of the original record and result in the creation of an artificial document divorced from that actual record.

60. I am not satisfied that the relevant paragraph is inaccurate, incomplete, out of date or misleading. Accordingly, the discretion to consider whether to refuse to amend is not enlivened, and I am not required to consider requested amendment (g), which, in any event, I would consider may be refused.

Requested amendment (h)

61. The applicant submits the Letter is incomplete and misleading because the Department’s previous request for the applicant to arrange a meeting with the author was not recorded and the letter only states that a meeting is not necessary. 

62. I do not consider that the author’s understanding as expressed in the Letter, nor her statement that a meeting was not required, is inaccurate, incomplete or misleading.  The fact the applicant may prefer that the Letter had been written differently or with fuller reference to the history of dealings between the parties does not render the actual statement that the Department required no meeting, nor the letter generally, inaccurate or incomplete.

63. That a routine letter of this kind, forming a single instance in a continuum of communications between relevant parties, does not recite the full history of dealings between parties does not of itself render the document inaccurate, incomplete or misleading. 

64. Additionally, as noted in paragraph 48 above, the letter forms part of a larger body of correspondence, including the Departmental letter originally proposing a meeting (a copy of which the applicant has), reference to which readily provides the complete picture of dealings between the parties.  In these circumstances, even if I had been satisfied this section of the letter was inaccurate, incomplete or misleading, I do not consider amendment as requested – that is, by way of insertion of words purporting to represent the original author – would be appropriate.

65. I am not satisfied that the Letter is inaccurate, incomplete, out of date or misleading in the manner as asserted by the applicant. Accordingly, the discretion to consider whether to refuse to amend is not enlivened, and I am not required to consider requested amendment (h), which, in any event, I would consider may be refused.

Conclusion

66. I consider that the Letter accurately reflects relevant facts as understood, and opinions as genuinely held, by its author at the time of creation.  I am not satisfied that it can be said to ‘misrepresent personal facts’ about the applicant nor convey the wrong impression as the applicant alleges. 

67. I do not consider the Letter to be inaccurate, incomplete out-of-date or misleading, and, in any event, I consider the Department would nevertheless be justified in refusing the requested amendments in the particular circumstances of this case.  

DECISION

68. For the reasons set out above, I affirm the Department’s decision to refuse to amend the letter on the basis that the information is not inaccurate, incomplete, out of date or misleading under section 72(1)(a)(i) of the IP Act.

69. I have made this decision as a delegate of the Acting Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld).

________________________
Suzette Jefferies
Assistant Information Commissioner 

Date:     26 November 2012

APPENDIX

Significant procedural steps