Processing a request for an amendment of personal records

This practice note provides an overview of the considerations involved in processing a request for an amendment of a personal record, including the type of information that can be amended and the process involved in making a decision.

All legislative references are to the Freedom of Information Act 1982 (Vic) (the Act) unless otherwise stated.

AN OVERVIEW

Where an individual is in possession^[1] of a document relating to their personal affairs, section 39 allows that individual (or their next of kin) to request that document be amended if they (the claimant) believe the document contains erroneous or misleading information.

A request under section 39 cannot be used to dispute or challenge the validity or legality of a decision (for example a judicial decision). Its statutory purpose is to ensure a document contains accurate information, and the information does not unfairly harm or misrepresent the claimant.

Further, an amendment made under section 39 cannot have the effect of deleting or expunging information that has been corrected or amended. The amendment should take the form of an alteration or notation to the record. For example, an alteration may involve marking-up the requested amendments in the document while ensuring the original document or information is retained with a strikethrough line.

INFORMATION THAT MAY BE AMENDED

Erroneous or misleading information

Section 39 allows individuals to request a document containing information relating to their personal affairs be corrected or amended if the information is:

inaccurate – information may be inaccurate if it is factually incorrect about the claimant, such as their date of birth, residence, educational qualifications, etc;
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out of date – information may be out of date where new information has come into existence that has made existing information obsolete. However, it is important to note information being old, does not by itself make it out of date; or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.

Documents containing opinions

Information that may be amended under section 39 is not limited to factual information. Generally, information in the nature of an opinion may also 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.^[2]

REQUIREMENTS OF A REQUEST

Personal records must relate to the claimant

A request for an amendment can only be made if the relevant document:

contains information relating to the personal affairs of the individual (or a deceased person); and
it is in the possession of the person who is the subject of the information (or in the possession of the deceased person’s next of kin).

Form of request

Under section 40, a request for an amendment must:

be in writing;
provide an address where a notice of a decision can be sent;
specify how the information is inaccurate, incomplete, out of date or misleading; and
specify the amendments the claimant wishes to be made.

This means, before accepting and processing a request for an amendment, the terms of the request should be carefully considered to ensure the claimant has specifically identified the information to be amended, provided an explanation, or evidence to support the amendment, and the request specifically notes the amendments to be made.

EVIDENCE ACCOMPANYING THE AMENDMENT REQUEST

The claimant bears the burden of providing evidence that the information in the document is inaccurate, incomplete, out of date, or would give a misleading impression. If the request does not contain an explanation or evidence to support the amendment, the claimant should be asked to provide an explanation or evidence. The following prompts may be helpful when requesting more information:

Inaccurate: why is the information untrue or incorrect?
Incomplete: what specific information is missing?
Out of date: how have the circumstances changed since that time?
Would give a misleading impression: who would be misled and how?

However, evidence from the claimant may not be required where other records of the agency or Minister contain sufficient evidence to support the request.

OTHER MATTERS

Fees

There are no fees or charges associated with requests made under section 39.

Timeframe

Under section 43, the agency or Minister must notify the claimant of a decision as soon as practicable, but no later than 30 days after receiving a valid request.

If the 30 day timeframe elapses and the claimant has not received a written notice of a decision, under section 53(1) the agency or Minister is taken to have refused the request for the purposes of the claimant applying to the Victorian Civil and Administrative Tribunal (VCAT) under section 50(1)(ea) for a review of the decision.

AMENDING A RECORD

How records may be amended

Under section 41, an amendment to a record may be done either by:

altering the record; or
adding an appropriate notation to the record.

However, under section 49, any changes to the record must be done in a way that preserves the original information, unless the Keeper of Public Records agrees to the deletion or expungement of the original information. The destruction or expungement of information may be appropriate in cases where the information is demonstrably wrong. However, it will be inappropriate where facts surrounding information are disputed.

REFUSING TO AMEND A RECORD

Reasons for decision

Under section 45, where an agency or Minister refuses a request to amend a personal record, the claimant must be notified of the decision under section 27 as though it were a request for access to documents. The notice given to the claimant must include:

the reasons for the decision, how the decision was reached, and the facts on which the decision was based (section 27(1)(a));
if the decision was made by an agency, the name and designation of the person who has made the decision (section 27(1)(b)); and
the claimant has the right to apply for a review of the decision, and the time in which an application for review must be made (section 27(1)(d)).

Review of a decision

Where a request to amend personal records has been refused, the claimant may apply to:

OVIC under section 49A(2) for a review of a decision made by an agency or Minister within 28 days, from the day after they receive the written notice of the decision; or
VCAT under section 50(3B) for a review of a decision made by a principal officer of an agency, Minister, or the Information Commissioner within 60 days of receiving written notice of the decision.

Notation of claimed information

Under sections 46 and 47, if a claimant makes a request to an agency or Minister to amend a personal record and:

the request is refused;
the claimant applies to VCAT for review of the decision; and
VCAT affirms the decision to refuse the request,

the claimant may then require, in writing, that the agency or Minister add a notation to the record that specifies the respects in which the claimant claims the information is incomplete, inaccurate, out of date, or misleading. In addition, in cases where information is claimed to be out of date, the notation must include the information that is claimed to be required to bring the information up to date or to make it complete.

^[1] It does not matter whether the document was released through a request under section 17, or by some other means.

^[2] These four categories are commonly used to assess if an opinion should be amended, for example, in Stephens v Victoria Police (1988) 2 VAR 236; Mann v Medical Practitioners Board of Vic (1997) VCAT 588; Atkins v Vic Police(1998) VCAT 325; Kyriazis v Victoria Police (2001) VCAT 619;Connell v Department of Justice (2005) VCAT 1903; Smeaton v Victorian Workcover Authority (2009) 31 VAR 436; QXD v Monash Health (2018) VCAT 997; ‘AG4’ and Melbourne Health (2019) VICmr 58.