Under Section 41 of theInformation Privacy Act 2009 (Qld) (IP Act) individuals can apply to an agency1to have their personal information amended if it is inaccurate, incomplete, out of date, or misleading.
This guideline is intended to assist agency decision makers to process amendment applications. Decision makers should consult the guideline Deciding amendment applications – when is information inaccurate, incomplete misleading or out of date? for guidance on deciding to grant or refuse an amendment application.
What is personal information?
Personal information is2information or an opinion about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
See What is personal information? for more information.
Documents of an agency or Minister
An individual can only apply to have personal information amended if it is contained in a document of an agency or a document of a Minister. See Document of an agency and documents of a Minister for more information.
The applicant must have had access to the information
An individual can only apply to amend their personal information if they have had access to a document containing the information3. They do not need to have accessed it under Chapter 3 of the IP Act or the Right to Information Act 2009 (Qld). For example, the applicant may have:
- viewed the document on a computer screen
- read it but not been given a copy of it
- seen an extract from it
- had it read to them over the phone.
The decision maker needs to confirm that the applicant has previously had access to the document. This could be done by, for example, asking the applicant:
- to provide a copy of the document
- to describe it in enough detail to satisfy the decision maker that the applicant has had access to it
- provide details about when and how the access was obtained.
If an individual has not had access to the document they cannot make a valid application for amendment under the IP Act. In these circumstances the applicant could apply for access under the IP Act which, if granted, would allow them to make a valid amendment application.
Who can apply?
Only the individual who believes their personal information is out of date, inaccurate, incomplete or misleading can apply to have it amended.
In some circumstances, however, other people may apply on the individual’s behalf. This could include:
- a parent applying on behalf of a child4
- an eligible family member applying on behalf of a deceased person
- a person with an appropriate interest applying on behalf of a deceased person.
Applying to amend information about a deceased person
The IP Act makes special allowance for information about a deceased person. Someone with an appropriate interest in applying to have that deceased person’s information amended has the right to apply in the same way the deceased person could have when they were alive.
When is an amendment application valid?
In order for an application to be valid it must5:
- be in the approved form
- provide enough information about the document to enable it to be identified
- set out the personal information that the applicant claims is inaccurate, incomplete, out of date or misleading
- state the way in which the applicant claims the information is inaccurate, incomplete, out of date or misleading and the grounds for the applicant's claim
- if the applicant claims the information is inaccurate or misleading – set out the amendments that the applicant claims are necessary for the information to no longer be inaccurate or misleading
- if the applicant claims the information is incomplete or out of date – set out the information the applicant claims should be included in order to complete the information or to bring it up to date
- provide an address to which notices under the IP Act may be sent
- provide evidence of identity for the applicant; and
- if the application is being made by an agent on behalf of the applicant:
- provide the name of the applicant and the agent
- be accompanied by evidence of identity for the agent and enough evidence to show that the agent has the authority to make the application.
Timeframes for amendment applications
The agency has 25 business days from the date of a valid application to give a decision to the applicant. This time may be extended in some circumstances, for example if the applicant agrees. If the agency does not make a decision in time they are deemed to have made a decision refusing to amend the document.
See How to Calculate Timeframes for more information.
Transferring an amendment application
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. The other agency must consent to the transfer; the applicant does not have to consent, but it is good practice to contact the applicant before transferring to see if they have any objections.
See Transferring access applications for more information.
Refusing to deal with an amendment application
In some circumstances an agency may refuse to deal with an amendment application. These include where:
- processing the application would substantially and unreasonably divert the agency’s resources
- the applicant has previously applied to amend the same documents and gives no reasonable basis for again applying to have them amended.
Making a decision
Only the agency’s principal officer or their delegate can make the decision. The decision maker has the discretion to grant the amendment by either:
- altering the personal information, or
- adding a note to the personal information.
Without limiting the grounds on which an amendment application may be refused, section 72 of the IP Act provides that the agency may refuse to amend because the document does not form part of a functional record6or the agency is not satisfied:
- that the personal information is inaccurate, incomplete, out of date or misleading
- that the information the subject of the application is the applicant's personal information
- that, where the application is purportedly made by an agent, the agent is suitably authorised to make the amendment application.
Form of amendment
If the agency decides to grant the amendment application, it may do so by7:
- altering the personal information, including by way of deletion
- adding an appropriate notation to the personal information.
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 must8:
- state how the information is inaccurate, incomplete, out of date or misleading
- if the information is claimed to be incomplete or out of date, set out the information required to complete the information or bring it up to date.
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].
Disposal or destruction not permitted
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.
Notation if amendment refused
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:
- states the way the applicant claims the information to be inaccurate, incomplete, out of date or misleading
- if the applicant claims the information is inaccurate or misleading – sets out the amendments the applicant claims are necessary for the information to be accurate or not misleading
- if the applicant claims the information to be incomplete or out of date – set out the information the applicant claims is necessary to complete the information or to bring it up to date.
The decision maker is not required to use the applicant’s exact wording in any notation.
If an applicant is not satisfied with the agency’s decision they can either first apply for an internal review from the agency and then, an external review, or they can apply directly to the Office of the Information Commissioner for an external review.
Delivering the decision
The agency must give the applicant a prescribed written notice of the decision. It must include:
- the decision
- the reasons for the decision
- the day on which the decision is made
- the name and designation of the person making the decision
- any rights of review available, including timeframes for seeking review.
See Statement of Reasons – making decisions under the RTI Act and IP Act for more information.
- 1 In this guideline agency includes a Minister
- 2 Section 12 of the IP Act
- 3 Section 44 of the IP Act.
- 4 See Applications by and for children for more information.
- 5 Section 44(4) of the IP Act.
- 6 Functional record is defined in section 72(2) of the IP Act as a record available for use in the day to day or ordinary performance of the agency's or Minister's functions.
- 7 Section 74 of the IP Act.
- 8 Section 75 of the IP Act.
Current as at: August 25, 2015