Section 39 - Person may request amendment of record
Extract of legislation
Section 39 gives individuals (or their next of kin) the right to ask an agency or Minister to amend a document containing the individual’s (or a deceased person’s) personal information, held by the agency or Minister, where the individual believes the document contains wrong or misleading information about them.
An individual may request an amendment where the:
- individual (or their next of kin) has a copy of the document they would like amended;
- document contains information relating to the individual’s personal affairs; and
- individual (or their next of kin) believes the personal information is wrong or misleading
More information
For information on:
- what ‘next-of-kin’ means, see section 33 – Document affecting personal privacy;
- how to make an amendment request, see section 40 – Form of request.
A request under section 39 cannot be used to dispute or challenge the validity or legality of a decision. Its purpose is to ensure a document contains accurate information, and the information does not unfairly harm or misrepresent the claimant.1
Further, an amendment made under section 39 generally cannot have the effect of deleting or expunging information that has been corrected or amended.2The amendment should take the form of an alteration or notation to the record.
Before processing a request for an amendment of records under Part V, an agency or Minister should first consider whether it is appropriate to make the amendment outside of the Act and seek the claimant’s consent to do so. This is discussed further below.
Purpose of the right to request an amendment
Section 39 is concerned with the accuracy of words in government-held records so the information in them does not unfairly harm or misrepresent personal facts about an individual. It helps to ensure third parties reading personal information about the individual do not get the wrong impression.3
Conversely, the purpose of section 39 is not to:
- provide an opportunity to ‘shape or colour’ information that an agency or Minister holds, according to a claimant’s own preferences;4
- re-write a document to substitute a claimant’s own opinion for the author’s opinion;5
- dispute or challenge the validity or legality of a decision or official action recorded in a document.6
Example
In Setterfield v Chisholm Institute of Technology (No 2) (1986) 1 VAR 202, the agency recorded a resolution for the applicant’s dismissal in meeting minutes.
The applicant wanted to add a notation to the meeting minutes to the effect that the resolution for her dismissal was invalid because quorum for the meeting was not met and therefore the agency was not permitted to proceed with the meeting.
The application was refused on the grounds that section 39 is concerned with recalling accurately what occurred and if the resolution to dismiss the applicant was recorded accurately. The lawfulness of the resolution has nothing to do with section 39.
An agency or Minister should first consider whether it is appropriate to make the requested correction or amendment outside of the Act.
Taking a proactive approach is consistent with the object of section 39 to promote fairness to individuals by ensuring personal information contained in government documents do not unfairly harm the person to whom it relates,7 by providing a less formal means to correct or amend records.
It is also consistent with:
- Information Privacy Principle (IPP) 3.1, which requires organisations to which the Privacy and Data Protection Act 2014 (Vic) (PDP Act) applies to take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up to date; and
- Health Privacy Principle (HPP) 3.1, which requires organisations to which the Health Records Act 2001 (Vic) (HR Act) applies to take steps reasonable in the circumstances (having regard to the purpose for which the information is to be used) to make sure that the health information it collects, uses, holds, or discloses is accurate, complete, up to date, and relevant to its functions or activities.
However, an agency or Minister should consider their other obligations relating to public records and any other relevant matters when deciding whether amendment outside of the Act is appropriate. For example, an agency or Minister must still consider their retention and disposal obligations under relevant Public Record Office Victoria retention and disposal authorities.8
Regarding notations, under sections 46 and 47, a claimant may require an agency or Minister to add a notation with the claimant’s view of the information, after the agency or Minister has refused the request and the Victorian Civil and Administrative Tribunal (VCAT) affirms the decision. To take a proactive, fairer, and more resource efficient approach, an agency or Minister should consider whether adding such a notation would satisfy the claimant’s request in the first instance, but only where this is appropriate.
If an agency or Minister can amend a record outside of the Act, the agency or Minister should contact the claimant as soon as practicable after receiving the request and discuss what can be corrected or amended outside of the Act. The agency or Minister should get the claimant’s consent before proceeding and explain that by amending the record outside of the Act, they will lose their right to review but they may make another amendment request if they wish.
The right to request an amendment in section 39 applies to information:
- relating to the claimant’s personal affairs (or the personal affairs of a deceased person) which was released to the claimant (or in the case of a deceased person, their next-of-kin); and
- that is inaccurate, incomplete, out of date, or would give a misleading impression.
Information relating to the claimant’s personal affairs
To make an amendment request under section 39, the information that the claimant wishes to amend must relate to their ‘personal affairs’.
Section 39 is generally used to correct wrong information about individuals retained by an agency or Minister for its purposes.11
Example
Examples of information relating to an individual’s personal affairs
- records of a decision which relate to the personal affairs of the individual;12
- medical records including hospital records, medical reports, medical opinions;13
- documents relating to work performance and work capacity of a person;14
- police incident report involving the individual;15
- documents summarising conversations between the individual and an agency officer;16
- LEAP database records containing criminal charges relating to the individual.17
The fact that a document may also be a record of a decision does not mean the document will not relate to the individual’s personal affairs. For example, in Smeaton v Victorian WorkCover Authority [2009] VCAT 1977, VCAT stated at [30]:
… the fact that the documents are also records of a decision, does not rob them of their other attribute of containing information related 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 that discretion.
A document that was ‘released’ to the claimant
The document with the information that the claimant would like amended must have been released to the claimant. The claimant does not need to have received the document in response to an FOI request.18 Section 39 can apply where the claimant gets access to the document in other ways.
Example
Case example
In ‘BM7’ and Austin Health (Freedom of Information) [2020] VICmr 122 (23 April 2020), the Applicant received a copy of the document they wanted to amend from their general medical practitioner.
Referring to Al-Hakim,19 the Public Access Deputy Commissioner found section 39 can be invoked whether an applicant seeks to amend a document obtained under the Act or another way.
Information that may be amended
Inaccurate, incomplete, out of date, or where it would give a misleading impression
The Act does not define the terms ‘inaccurate’, ‘incomplete’, ‘out of date’, or ‘where it would give a misleading impression’.20 In the context of their usual or ordinary meaning, these terms can mean:
- inaccurate – information may be inaccurate if it is factually incorrect about the claimant, such as their date of birth, residence or educational qualification;
- incomplete – information may be incomplete if it is lacking in parts, or it has missing information;
- out of date – information may be out of date where new information has come into existence that has made existing information obsolete. However, it is important to note information being old, does not by itself make it out of date; or
- would give a misleading impression – information that would give a misleading impression does not necessarily have to be untrue, rather it is information that is likely to cause a reader to reach an incorrect conclusion.
Considering whether information is misleading or would give a misleading impression is an objective assessment. An agency or Minister should consider, based on the information and evidence available, what impression is fairly and reasonably open as an interpretation. This assessment must be free from bias.21
The terms outlined above often overlap. For example, a record may contain wrong information which also gives a misleading impression. Similarly, a record may contain factually correct information, but the information may be incomplete or the language used to convey the factually correct information would convey a misleading impression.22
Examples
Case example of ‘misleading impression’
VCAT found that an extract from a Victoria Police database with the heading ‘Criminal History Report’ which was stated to be the ‘criminal history’ for the Applicant, gave a misleading impression because the document’s heading created the impression that the discharged charges may have involved some element of criminality where it recorded charges that had been discharged by the Magistrates’ Court.
VCAT ordered that the following words be added to the entry, in a prominent location: “This is a record of court outcomes, including matters where a charge has been dismissed or discharged”.23
Case example of ‘inaccurate’ information
The Information Commissioner found that a document outlining a clinician’s observation that a deceased person had tattoos was incorrect because the facts underlying the observation had been demonstrated to be incorrect. The Claimant provided a letter from the Funeral Director/Qualified Embalmer who prepared the deceased person’s body, confirming the deceased person does not have visible tattoos.24
Opinions
Information that may be amended under section 39 is not limited to factual information; it can also include opinions.25
Generally, information in the nature of an opinion may be amended if it falls into one of the following four categories:
- the facts underlying the opinion have been thoroughly discredited or have been demonstrated to be totally inadequate;
- the person forming the opinion was tainted by bias or ill will, incompetence or lack of balance, or necessary experience;
- the factual basis underlying the opinion is so trivial as to render the opinion formed dangerous to rely on and likely to result in error; or
- the facts upon which the opinion was based were misapprehended.26
A claimant generally cannot use section 39 to substitute their own opinion or re-write a document in words other than the author’s, except where the information is inaccurate, incomplete, out of date, or misleading.27
Examples
Case example where an opinion was amended
In Re Foster v Victoria Police,28 the Applicant was a serving member of the Agency. He disputed aspects of a written comment made about him by a senior Agency officer which had been entered in his record of conduct and service.
The comment related to the Applicant’s work performance and noted:
- the Applicant’s objectivity and professionalism in a particular investigation which raised the question of his competence as a detective and whether he should be retained in a particular unit;
- the Applicant’s attitude to disciplinary action was not satisfactory;
- there was doubt as to whether the Applicant should again serve at a higher rank, and the doubt must be addressed if the Applicant applied to serve at a higher rank.
The Administrative Appeals Tribunal held that the original comment should be expunged, finding that:
- The disputed comment would give a misleading impression about the extent to which the Applicant’s career service to date had been satisfactory because the comment placed undue emphasis on one incident which was out of proportion to the Applicant’s overall career.
- To some extent, the facts underlying the comment were demonstrated to be totally inadequate and the comment’s author was tainted by unconscious bias by giving undue weight to the one particular incident.
- The record to be amended would have a direct effect on the Applicant’s career in the Force for as long as he remained a member. The original comment was made by a very senior officer and to remove any possibility of injustice, the original comment was to be expunged.
Case example where a medical opinion was not amended
In QXD v Monash Health,29 the Applicant sought to amend a hospital intake document which outlined a medical diagnosis from 1974. The Applicant disputed the diagnosis and wanted the record to reflect what he believed to be the correct one.
VCAT decided not to amend the opinions in the record, noting:
- The claimant’s evidence did not form a basis for a finding that the opinions in question are inaccurate, incomplete, out of date or would give a misleading impression.
- The complex evidence did not provide a basis for preferring the claimant’s evidence to contrary evidence.
- Section 39 may not be used as a vehicle to amend an earlier document where medical science has advanced, and a view expressed in the earlier document becomes inaccurate in that it is out of date.
The main pieces of legislation that deal with privacy in Victoria are the PDP Act and HR Act.
FOI and privacy law intersect in two main ways:
- Keeping information up to date: the PDP Act and the HR Act generally require organisations to which the relevant law applies to take reasonable steps to make sure that the personal or health information it collects is accurate, complete, and up to date and provides the right to make a complaint to OVIC or to the Health Complaints Commissioner if the individual believes the organisation has failed to do so;30 and
- Right to request an amendment: the FOI Act, PDP Act and HR Act each provide the right to request an amendment to certain information.31 However, the FOI Act is the main way to ask for an amendment to personal information held by Victorian government agencies. If the FOI Act does not apply, then depending on the kind of information involved, the PDP Act or the HR Act may apply to provide a way to correct information in a record.
More information
See examples below for more information on when to use section 39, the PDP Act, or the HR Act.
Access and correction under the Privacy and Data Protection Act 2014 (Vic)
IPP 6 under the PDP Act relates to personal information.32 It outlines that if an agency holds personal information about an individual, it must give the individual access to the information on request by the individual, subject to some exceptions.
IPP 6, however, only applies when the FOI Act does not (for example, where the FOI Act does not apply to certain organisations).33 The purpose of this is to preserve the established system of access under the Act, rather than introduce overlapping systems which may be confusing.
If the information to be amended is in a document held by a Victorian agency, or in an official document of a Minister, then the FOI Act will apply.34
However, there are some documents that cannot be accessed or amended under the Act or under IPP 6 because of section 14(3) of the PDP Act. That section states that IPP 6 does not apply to certain documents to which the Act does not grant access.
More information
See examples below for more information.
Access and correction under the Health Records Act 2001 (Vic)
HPP 6 under the HR Act relates to health information.35 It outlines that if an agency holds health information about an individual, it must give the individual access to the information on request by the individual, subject to some exceptions.
HPP 6, however, only applies when the Act does not (for example, where the Act does not apply to certain organisations).36 The purpose of this is to preserve the established system of access under the Act, rather than introduce concurrent systems which may be confusing.
If the information to be amended is in a document held by a Victorian agency, or in an official document of a Minister, then the Act will apply.37
However, there are some documents that cannot be accessed or amended under the Act or under HPP 6 because of section 1416(b) of the HR Act. That section states that HPP 6 does not apply to certain documents to which the Act does not grant access.
More information
See examples below for more information.
Examples of when to use the Act, IPP 6 or HPP 6
| Type of document | Section 39 | IPP 6 | HPP 6 |
| A document of an agency | Yes | No | No |
| An official document of a Minister
Note: Documents in the possession of a Minister that do not fall within the definition of ‘official document of a Minister’ may be subject to IPP 6 if they contain personal information or HPP 6 if they contain health information. |
Yes | No | No |
| A document of a prescribed authority | Yes | No | No |
| Non-judicial documents of courts or tribunals (for example, employee records)38 | Yes | No | No |
| Judicial or quasi-judicial documents of courts or tribunals (for example, a court judgement)39 | No | No | No |
| A document of a Parliamentary Secretary
Note: Part 3 of the PDP Act and Part 2 of the HR Act apply to Parliamentary Secretaries whereas the definition of ‘agency’ in the FOI Act does not include a Parliamentary Secretary.40 |
No | Yes (if the document contains personal information) | Yes (if the document contains health information) |
| Contracted service providers (CSP)
|
No (but if the outsourcing agency has possession or constructive possession of the document, then it may be a document of the agency)41 | Yes (if the document contains personal information and the CSP has been contractually bound to the IPPs)42 | Yes (if the document contains health information and the CSP falls under the definition of private sector organisation in the HR Act)43 |
| Private sector organisation (excluding CSPs)44 | No | No | Yes (if the document contains health information and the organisation falls under the definition of private sector organisation in the HR Act)45 |
| Other bodies established or appointed for a public purpose by or under an Act, that are not covered by the Act
Note: Some bodies may not fall under the definition of an agency under the Act, but still fall within the definition of organisation in the PDP Act and/or the HR Act.46 |
No | Yes (if the document contains personal information) | Yes (if the document contains health information) |
| Bodies excluded from the operation of the Act by section 5(3)
Note: Some bodies are excluded from the definition of ‘prescribed authority’ by section 5(3). This includes ‘prescribed offices’, listed under regulation 7 of the Freedom of Information Regulations 2019 (Vic). |
No | No47 | No48 |
| Documents of the Office of the Victorian Information Commissioner (OVIC) which relate to an FOI review, an FOI complaint, or an investigation. | No49 | No50 | No51 |
Agencies and Ministers have obligations under the Public Records Act 1973 (Vic). This includes maintaining records for a minimum amount of time (outlined in retention and disposal authorities issued by PROV).
When amending a document under the FOI Act, an agency or Minister cannot delete information in a document or expunge a document without the Keeper of Public Records’ authorisation.52 This authorisation is done on a case-by-case basis, and it is not automatic.
An agency or Minister may ask for the Keeper of Public Records’ authorisation to delete information or expunge a document by:
- emailing agencyqueries@prov.vic.gov.au;
- providing details of the request (including the information and/or records involved);
- whether the agency or Minister supports the request, and if so, why;
- the harms that the incorrect or misleading information is causing; and
- the retention requirements for the records (including the relevant Retention & Disposal Authority and Class and minimum mandatory retention period if known).
More information
For more information on record keeping, visit PROV’s website, including:
- ‘Privacy and Recordkeeping Obligations’ Topic Page: https://prov.vic.gov.au/recordkeeping-government/a-z-topics/privacy-and-recordkeeping-obligations; and
- Retention and Disposal Authorities (RDAs), available here: https://prov.vic.gov.au/recordkeeping-government/how-long-should-records-be-kept/retention-and-disposal-authorities-rdas.
More information
Information Privacy Principles Guidelines – IPP 6 – Access and Correction
Section 40 – Form of request for amendment of record
Information for individuals: How to make a request for an amendment
- Part V refers to a ‘claimant’ instead of an ‘applicant’. However, examples in this section may refer to ‘applicant’ to reflect the individual’s status an applicant for review of the amendment decision.
- Freedom of Information Act 1982 (Vic), section 49.
- G v Health Commission of Victoria (County Court, 13 September 1984) at [10].
- Re Buhagiar v Victoria Police (1989) 2 VAR 530 at pages 531 and 532, referring to Gesell J in the context of the amendment provisions of the US Privacy Act in RR v Department of the Army 482 F Supp 770 (1980) at [773].
- Re Lee v Ministry of Education (1989) 3 VAR 429 at page 434.
- Smeaton v Accident Compensation Conciliation Service [2010] VCAT 1236 citing Crewdson v Central Sydney Area Health Service [2002] NSWCA 345.
- G v Health Commission of Victoria (County Court, 13 September 1984) at [10].
- Public Record Office Victoria, Retention and Disposal Authorities (RDAs), available here.
- The Administrative Appeals Tribunal in Griffiths v Victoria Police (1987) 2 VAR 595 took the ordinary meaning approach to interpreting ‘personal affairs’, referring to the Shorter Oxford English Dictionary definition of “personal”.
- Griffiths v Victoria Police (1987) 2 VAR 595.
- Griffiths v Victoria Police (1987) 2 VAR 595 at [596], accepted by the Victorian Civil and Administrative Tribunal in Smeaton v Victorian WorkCover Authority [2009] VCAT 1977 at [29].
- Smeaton v Victorian WorkCover Authority [2009] VCAT 1977 at [30].
- Resch v Department of Veterans’ Affairs (1986) 9 ALD 380 at [36] however in this case, the Deputy President distinguished a medical opinion from a determination duly made by an administrative authority charged with administering a scheme; ‘AO2’ and St Vincent’s Health (Freedom of Information) [2019] VICmr 128 (30 September 2019); ‘AG4’ and Melbourne Health (Freedom of Information) [2019] VICmr 58 (28 June 2019).
- Griffiths v Victoria Police (1987) 2 VAR 595.
- ‘CG8’ and Victoria Police (Freedom of Information) [2020] VICmr 311 (9 November 2020).
- ‘BM6’ and Department of Health and Human Services (Freedom of Information) [2020] VICmr 121 (23 April 2020); ‘AQ4’ and Department of Health and Human Services (Freedom of Information) [2019] VICmr 148 (24 October 2019).
- ‘BL7’ and Victoria Police (Freedom of Information) [2020] VICmr 113 (15 April 2020).
- Re Al-Hakim v Monash University (unreported, VCAT, Macnamara DP, 12 July 2002) at [26].
- Re Al-Hakim v Monash University (unreported, VCAT, Macnamara DP, 12 July 2002) at [26].
- The claimant bears the onus of demonstrating the information is inaccurate, incomplete, out of date or would give a misleading impression. For information on evidence requirements, read section 40 – Form of request for amendment of record.
- G v Health Commission of Victoria (unreported, Vic County Ct, Rendit J, 13 September 1984) at [9]-[11].
- G v Health Commission of Victoria (unreported, Vic County Ct, Rendit J, 13 September 1984) at [9]-[11].
- JF v Victoria Police [2005] VCAT 1641.
- DY4 v Barwon Health (Freedom of Information) [2022] VICmr (21 March 2022).
- Re Stephens and Victoria Police (1988) 2 VAR 236 applying Corbett v Australian Federal Police (1986) 5 AAR 291.
- Re Stephens and Victoria Police (1988) 2 VAR 236.
- Re Traynor v Melbourne and Metropolitan Board of Works (1987) 2 VAR 186, page 190.
- Re Foster v Victoria Police (1989) 3 VAR 110 (VICAAT).
- QXD v Monash Health (Review and Regulation) [2018] VCAT 997 (29 June 2018).
- See IPP 3.1 under the PDP Act and HPP 3.1 under the HR Act regarding the obligation for organisations to maintain individuals’ information. An individual may make a privacy complaint under section 57 of the PDP Act to OVIC. An individual may make a complaint under section 45 of the HR Act to the Health Complaints Commissioner.
- See IPP 6 under the PDP Act for access and correction of ‘personal information’ and HPP 6 under the HR Act for access and correction of ‘health information’.
- Privacy and Data Protection Act 2014 (Vic), section 3 (definition of ‘personal information’).
- Privacy and Data Protection Act 2014 (Vic), section 14.
- Privacy and Data Protection Act 2014 (Vic), section 14(1) and section 14(2).
- Health Records Act 2001 (Vic), section 3 (definition of ‘health information’).
- Health Records Act 2001 (Vic), section 16.
- Health Records Act 2001 (Vic), section 16.
- ‘Judicial functions’ are considered in section 6 and section 29B.
- ‘Judicial functions’ are considered in section 6 and section 29B.
- Privacy and Data Protection Act 2014 (Vic), section 13(1)(b); Health Records Act 2001 (Vic), section 10(1)(b); Freedom of Information Act 1982 (Vic), section 5.
- For information on what ‘possession’ or ‘constructive possession’ means, see the definition of ‘document of an agency’ in section 5(1).
- Privacy and Data Protection Act 2014 (Vic), section 13(1)(j).
- Health Records Act 2001 (Vic), section 11.
- Health Records Act 2001 (Vic), section 11.
- Health Records Act 2001 (Vic), section 11.
- ‘Organisation’ is defined in section 3 of the PDP Act as meaning public sector organisations captured section 13 of that Act; similarly, section 3 of the HR Act defines ‘public sector organisation’ as a person or body that is referred to in Division 1 of Part 2.
- Section 14(3) of the PDP Act states that documents captured by section 5(3) are not covered by IPP 6.
- Section 16(b) of the HR Act states that documents captured by section 5(3) are not covered by HPP 6.
- Freedom of Information Act 1982 (Vic), section 6AA which outlines the Act does not apply to a document in OVIC’s possession (or in the possession of a contractor, agent or other person acting for or on behalf of OVIC) to the extent that the document is the subject of or discloses information that relates to a review under Part VI, a complaint under Part VIA, or an investigation.
- Section 14(3) of the PDP Act states that documents captured by section 6AA are not covered by IPP 6.
- Section 16(b) of the HR Act states that documents captured by section 6AA are not covered by HPP 6.
- Freedom of Information Act 1982 (Vic), section 49.
