Section 49 - How corrections or amendments are made

Extract of legislation

How corrections or amendments are made

Where a request for correction or amendment under section 39 has been acceded to by an agency, the correction or amendment may take the form of a notation of the original document but no correction or amendment shall be made which has the effect of deleting or expunging the information which has been corrected or amended or of destroying the document except with the concurrence of the Keeper of Public Records.

Guidelines

Forms of amendment

Deleting or expunging information or destroying a document

1.2

The purpose of Part V is to ensure personal information in government-held records does not unfairly harm the person to whom it relates. This can often be achieved by altering the information and/or adding a notation to the record.⁸

1.3

However, in limited instances, an agency or Minister may correct or amend a record by deleting or expunging information or destroying the document with the agreement of the Keeper of Public Records.⁹

1.4

The purpose of section 49 is to maintain the integrity of public records by retaining the original information and annotating the record to correct or update the information in it. It also helps to ensure that any person reading the record, or a file containing the information subject to the amendment, understands whether any information is disputed and why.

1.5

Therefore, it will generally not be appropriate to delete or expunge information or destroy a document where the facts are disputed. However, it may be appropriate to alter the record or add a notation which notes the nature of the dispute and includes the differing view.

Example

For example, in Smeaton v Victorian Workcover Authority [2009] VCAT 1977, VCAT noted at [32] that it would not be appropriate to completely replace the record subject to amendment in a file because replacement could result in a reader of the file finding it difficult to understand how the amended document came to be on the file. VCAT noted its view that Parliament intended to avoid that result.

1.6

Destroying a record has been held to be an ‘extreme’ form of correction or amendment.¹⁰

When it may be appropriate to delete or expunge information or destroy a document

1.7

Deleting or expunging information in a record or destroying a document may be appropriate where:

the information is demonstrably wrong (meaning the information can be capable of being shown or logically proved to be wrong) and provided the Keeper of Public Records agrees to the deletion, expungement, or destruction;¹³
failing to do so would unfairly harm the claimant, having regard to the object of Part V and the need to ensure fairness, and provided the Keeper of Public Records agrees to the deletion, expungement, or destruction.¹⁴

1.8

An agency or Minister must consider each request on its merits, based on the evidence available.

1.9

Before an agency or Minister may delete or expunge information or destroy a document, they must consult with the Keeper of Public Records and receive their agreement to do so.

Examples

Re Buhagiar v Victoria Police (1989) 2 VAR 530

In Re Buhagiar, the Applicant sought to amend reports relating to her that the agency prepared through her unsuccessful application to join Victoria Police.

The reports contained serious allegations about the Applicant, which gave the impression she has a poor reputation, associates with and supports criminals, and has been involved in misconduct including the taking of illicit drugs and brawling.

In summary, the AAT held:

The reports asserted as unqualified facts matters that were in dispute, as demonstrated by the evidence presented during the matter.
Given the object of the Act is to ensure that personal information contained in government files do not unfairly harm the person to whom it relates, the records should be amended by expunging a comment from one of the reports (subject to the concurrence of the Keeper of Public Records) and by introducing qualifications to certain misleading statements made in some of the records.
A notation should be attached to the records stating that the Tribunal determined that the relevant paragraphs contain information that was incomplete and misleading in not disclosing that what were stated as facts about the applicant had not been established as such.

Re Foster v Victoria Police (1989) 3 VAR 110 (VICAAT)

In Re Foster v Victoria Police, 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:

unfavourable observations about 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 the CIB;
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.

Amongst other things, the AAT held:

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 should be expunged.

Asking for PROV’s authority to delete or expunge

1.10

When amending a document under the Act, an agency or Minister cannot delete information in a document or expunge a document without the Keeper of Public Records’ authorisation.¹⁶ This authorisation is done on a case-by-case basis, and it is not automatic.

1.11

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

See the FOI Guidelines on:

Freedom of Information Act 1982 (Vic), section 41.
Freedom of Information Act 1982 (Vic), section 41 and section 42.
Freedom of Information Act 1982 (Vic), section 49.
Freedom of Information Act 1982 (Vic), section 49.
Re Foster v Victoria Police (1989) 3 VAR 110 at page 110.
Freedom of Information Act 1982 (Vic), section 49.
Re Lee and Ministry of Education (1989) 3 VAR 429.
Re Foster v Victoria Police (1989) 3 VAR 110 at page 110.
Freedom of Information Act 1982 (Vic), section 49.
Re Lee and Ministry of Education (1989) 3 VAR 429.
G v Health Commission of Victoria (Unreported decision, 13 September 1984); The Australian Concise Oxford Dictionary (Fourth ed, 2004) ‘demonstrable’.
Re Buhagiar v Victoria Police (1989) 2 VAR 530 at 541.
G v Health Commission of Victoria (Unreported decision, 13 September 1984); The Australian Concise Oxford Dictionary (Fourth ed, 2004) ‘demonstrable’.
Re Buhagiar v Victoria Police (1989) 2 VAR 530 at 541.
Freedom of Information Act 1982 (Vic), section 49.
Freedom of Information Act 1982 (Vic), section 49.