Section 40 - Form of request for amendment of record
Extract of legislation
| 40 | Form of request for amendment of record | |
| A request under section 39— | ||
| (a) | shall be in writing; | |
| (b) | shall specify an address to which a notice under section 43 may be sent to the person making the request; and | |
| (c) | shall give particulars of the matters in respect of which the claimant believes the record of information kept by the agency or Minister is incomplete, incorrect, out of date or misleading and shall specify the amendments that the claimant wishes to be made. | |
Section 40 outlines how to make a valid request to amend records under section 39.
Under section 40, a request for amendment must:
- be made in writing;
- specify an address for a notice under section 43 to be sent; and
- provide information explaining:
- why the claimant believes the document is incomplete, incorrect, out of date or misleading; and
- what amendments the claimant would like the agency or Minister to make.
Before accepting and processing a request for an amendment, the agency or Minister should carefully consider the terms of the request to ensure the claimant has:
- specifically identified the information to be amended;
- provided an explanation, or evidence, to support the amendment; and
- specifically noted in their request the amendments to be made to the record.
There are no fees or charges associated with amendment requests made under section 39.
The onus for establishing a case for amendment is on the claimant
The onus for establishing a case for amendment is on the claimant. This means the claimant must provide evidence to demonstrate how the information is inaccurate, incomplete, out of date or would give a misleading impression.2
If the request does not contain an explanation or evidence to support the amendment, the agency or Minister should ask the claimant to provide an explanation and supporting evidence. However, evidence from the claimant may not be required where other records of the agency or Minister contain sufficient evidence to support the request.
The following prompts may be helpful when requesting more information:
- Incorrect: why is the information untrue or inaccurate?
- Incomplete: what specific information is missing?
- Out of date: how have the circumstances changed since that time?
- Misleading: how would the information give a misleading impression and who would be misled and how?
- What evidence can the claimant provide which supports their amendment request? For example:
- a document from a third party;
- a written account of the claimant’s version of events;
- a witness statement.
Depending on how many amendments the claimant is seeking, or how complex the amendment request is, it may be useful for an agency or Minister to provide a claimant with a table or similar tool to help the claimant outline what amendments they are seeking and why.
Example of a table
| No. | Date of document | Document name | Page | Information | Why is it incorrect? | What should the amendment state? | Evidence to support the amendment |
| Example | DD/MM/YYYY | Doctor’s report | 2 | Paragraph 3 states that my address is XYZ | · Incorrect
· Incomplete · Out of date · Misleading |
My correct address is ABC. | Driver’s licence |
Case example of evidence to support an amendment request
Example
DY4 v Barwon Health (Freedom of Information) [2022] VICmr 13
The applicant sought to amend an observation of deceased person in a document, which stated the deceased person has tattoos. The claimant submitted the deceased person does not have tattoos.
In support of their claim, the applicant provided a letter from the Funeral Director/Qualified Embalmer who prepared the deceased person’s body. The letter confirmed that the deceased person does not have visible tattoos.
Through the course of the Information Commissioner’s review, the letter from the Funeral Director was placed on the deceased person’s medical file.
Once the claimant has provided evidence to make a prima facie case that the information in the documents in question is inaccurate, incomplete, out of date or would give a misleading impression, the agency or Minister has the burden of justifying its decision.4
- See Roberts v Police (Vic) [2004] VCAT 1660 at [8]. See also Connell v Department of Justice [2005] VCAT 1903 at [19] and QXD v Monash Health [2018] VCAT 997 at [21].
- See Roberts v Police (Vic) [2004] VCAT 1660 at [8]. See also Connell v Department of Justice [2005] VCAT 1903 at [19] and QXD v Monash Health [2018] VCAT 997 at [21].
- Roberts v Police (Vic) [2004] VCAT 1660 at [8]; QXD v Monash Health [2018] VCAT 997 at [22].
- Roberts v Police (Vic) [2004] VCAT 1660 at [8]; QXD v Monash Health [2018] VCAT 997 at [22].
