Under section 41 of the Information Privacy Act 2009 (Qld) (IP Act) individuals can apply to an agency1 to have their personal information amended if it is inaccurate, incomplete, out of date, or misleading.
This guideline is intended to assist agency decision makers assess amendment applications, process them if they are valid, and decide whether to grant or refuse the amendment.
The basic requirements for a valid amendment application are the same as those for an access application and the same requirements for compliance apply—see Noncompliant applications for details.
An amendment application must:
Additionally, to apply to have their personal information amended, the applicant must have previously accessed it.2 This does not need to have been under the IP Act or the Right to Information Act 2009 (Qld). For example, the applicant may have:
As part of assessing the validity of the application, the decision maker must confirm the applicant has previously had access to the information. This could be done by, for example, asking the applicant:
If an individual has not had access to the information they cannot make a valid application for amendment under the IP Act.
If someone applies for amendment and the decision maker decides they have not had access to the information, they could suggest that they apply to access it under the IP Act.
As part of their application, the applicant is also required to describe the personal information and detail how they believe it is inaccurate, incomplete, out of date or misleading. The applicant is also required to state the changes or additions they believe are necessary to correct it.
The applicant should provide evidence that supports their claims, as the onus is on them to prove the information is inaccurate, incomplete, out of date, or misleading.
The procedure for processing an amendment application is very similar to that necessary to process an access application and many of the same requirements apply.
The agency has 25 business days from the date of a valid application to give a decision to the applicant and the agency can request an extension of time as long as they ask before the end of the processing period. If a decision is not made in time, the principal officer of the agency is deemed to have made a decision refusing to amend the document. See Timeframes for Access and Amendment for more information.
If the agency does not hold the documents the applicant has applied to amend, and they know that another agency does hold them, they can transfer the application to the other agency. See Transferring access applications for more information.
In some circumstances an agency may refuse to deal with an amendment application. These include where:
The decision maker has the discretion to grant the amendment by either:
It is the applicant’s responsibility to:
Where the information the applicant is applying to have amended is their interpretation of events or issues, they must establish “not only that the relevant information inaccurately, incorrectly or misleadingly represents the underlying events or issues, but that the authoring individual had not actually held and accurately entered into the official record their particular understanding of those events”.4
If the applicant provides no evidence to support their amendment application the decision maker will generally not be able to amend the documents, as they will have nothing to show that the information is inaccurate, incomplete, out of date or misleading.
The decision maker must decide how much verification is required, taking into account:
Where the applicant contends that a simple, readily verifiable fact is wrong, they can give the agency information that demonstrates this. For example, if the applicant’s date of birth is wrong in agency records, they can provide a copy of their birth certificate.
The decision maker doesn't have to conduct a full-scale investigation into the applicant's claims, but they should take reasonable steps to acquire copies of any documents that support or refute the applicant's submissions.
The words 'inaccurate, incomplete, misleading and out of date' are used in the IP Act in their ordinary meaning. Inaccurate means not completely correct or exact. Incomplete means missing some information or not finished. Out of date means no longer valid or relevant.
Information is not out of date just because it is old. It can only be out of date where newer information makes it obsolete. For example, medical records contain information that no longer reflects the current state of affairs, such as that two years ago an applicant's leg was broken, but it is not out of date. Even though the applicant's leg is no longer broken, that information is still relevant.
Information can be misleading if the following apply:
The Information Commissioner has observed5 that the amendment provisions 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…
There is a distinction between a misleading impression and an inaccuracy, although there will often be significant overlap. Inaccurate facts may well be misleading. However, accurate facts may also give a misleading impression, either because they are incomplete or because the language used in recording the facts could convey a misleading impression. For example, information could be misleading where technical terms, unlikely to be known to the general public, are used in information that is available to the general public.
In Foster and Victoria Police6, it was observed that the object of amendment provisions is to allow members of the public to correct or amend their information so that an injustice does not occur as a result of incorrect or misleading information.
Some applicants may attempt to use an amendment application to change the outcome of other agency processes. “The amendment provisions of the IP Act cannot be used to determine disputed questions of opinion when that opinion was held by the author and the record merely reflects this”7 and “it is not the purpose of the amendment provisions of the IP Act to permit a re-writing of history”8. Agency decisions cannot be changed or appealed by way of amendment.
In Resch and Department of Veterans Affairs9, the applicant wished to have the description of his disability altered by amending his records under the corresponding provisions in the Commonwealth FOI Act. The Administrative Appeals Tribunal refused the amendments, noting that: "the medical opinions of the departmental medical officers and consultants are not shown to be ‘incorrect’ merely by producing medical opinions to the contrary."
If the applicant is trying to amend purely factual personal information and the decision maker decides to grant the amendment, they should consider amending the information by alteration. 'Altering' may include deletion of the information but not the destruction or disposal of the entire document.10
For example, where a decision maker is satisfied that the applicant’s date of birth in an agency database is incorrect, they can delete the incorrect date of birth and replace it with the correct date of birth.
However, in some circumstances, it may be important to preserve the record, for example, because it may be needed as evidence in litigation or the Public Records Act 2002 (Qld) may require it to remain unaltered. In those circumstances, it may be more appropriate to amend the record by inserting a notation.
Sometimes applicants will seek to amend personal information which is an opinion, or advice or a recommendation based on an opinion, such as a medical or other professional report. These are generally specialist opinions based on facts and other information available to the author at the time of writing. For example, a doctor’s report will generally be based in part on the doctor’s own observations made during an examination of the patient.
Generally, an applicant will find it difficult to succeed on an application to amend an expert opinion, particularly a medical opinion. The mere fact that an agency preferred one report over another does not necessarily make a conflicting opinion incorrect.
Amendment of an expert opinion would only be in contemplation where11:
However, these are serious conclusions that are difficult to establish, and the onus lies on the applicant to provide the evidence that proves them. The fact that another expert might have taken a different view on the same facts is not enough.
If an applicant does provide information that leads a decision maker to believe one of these might be relevant to their application, the decision maker should consider the matter carefully and consult the author of the report or other experts as appropriate.
Even if a decision maker was satisfied that the expert opinion was incorrect or misleading, the form of amendment would generally not involve removing the original report (or any part of it) from the file. The amendment could be made by way of:
Amendment applications made on the basis that opinion-based personal information is out of date raises different issues. A medical or other expert's opinion often represents a ‘snapshot in time', describing particular circumstances, symptoms or treatments.
In the sense that the report or opinion might only apply for a set period of time, the report may almost immediately go 'out of date', however, as it is still an accurate statement of the expert's opinion at the time it was made, it is not likely to be out of date within the meaning of the IP Act.
An expert opinion that is not out of date or inaccurate could still be incomplete or misleading if the record failed to show there had been disagreement between competent experts, for example between doctors about a diagnosis. If the applicant is able to provide evidence of these, demonstrating that the document is incomplete or misleading, it could be amended by, for instance, including a notation of the other opinions, or including more recent reports from other equally qualified experts.
Additional material should be accepted if it provides more complete or more recent information.
When making a decision about amendment of an opinion, relevant issues include:
A decision maker has a discretion to refuse to amend personal information even where it is inaccurate, incomplete, out of date or misleading.12 In 3DT2GH, the Information Commissioner explained the operation of the discretion as follows:
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 [document] in terms as requested by the applicant.
This discretion should be exercised bearing in mind the purpose of the amendment provisions of the IP Act noted above and taking into account various relevant factors, including:
If the agency decides to grant the amendment application, it may do so by14:
When making an alteration it is usually sufficient to strike through the words to be amended, add a side note indicating the nature of the defect, and insert the correct details or a note of where the correct details are to be found. It is also possible to include a copy of more accurate or up to date information on the file.
Any notation must15:
The existence of the notation should be clearly indicated on the cover of each of the applicant’s files and the amendment itself should include a reference to the fact that the record was amended under the IP Act.
‘The attached document is [inaccurate, incomplete, out-of-date or misleading] within the meaning of section 44 of the Information Privacy Act 2009. Specifically, [insert details of information] is incorrect in the following respects [set out how and any information necessary to update or complete it].
The IP Act provides for amendment by alteration or notation; it does not provide for the disposal or destruction of public records. Public records containing inaccurate, incomplete, out of date or misleading information cannot be removed or destroyed unless their disposal is authorised under the Public Records Act 2002.
If the decision maker refuses to amend the applicant’s personal information the applicant can require the agency to add a notation to the document that:
The decision maker is not required to use the applicant’s exact wording in any notation.
The agency must give the applicant a prescribed written notice of the decision. It must include:
See Statement of Reasons – making decisions under the RTI Act and IP Act for more information.
Current as at: February 14, 2019