Subject to the provisions of the FOI Act, I have made a decision not to amend the
document. In accordance with section 51 of the FOI Act, the document will be
annotated with the amendment request dated 19 December 2022 you have made
regarding this document with reference made to FOIREQ22/00357, being the relevant
FOI request file.
Alternatively, if you would like a different statement to be annotated to the document,
please provide this statement to the OAIC by
close of business Wednesday 25
January 2023.
Requirements of an amendment request
Under section 48 of the FOI Act, if a person considers that their personal information
is
“incomplete, incorrect, out of date or misleading” in a document held by an agency,
they can apply for an amendment or annotation to the document.
Under section 50 of the FOI Act, an agency may amend a document where they are
satisfied that:
• The personal information is contained in a document which the agency holds
and which has been provided to the applicant lawfully, whether as a result of
an access request under the FOI Act or otherwise;
• The information is incorrect, incomplete, out of date or misleading; and
• The information has been used, is being used, or is available for use for an
administrative purpose.
Where an amendment request is refused, section 51 of the FOI Act states that the
document must be annotated.
Reasons for Decision
In making this decision, I have considered:
• Your email dated 19 December 2022;
• The notification of withdrawal email on FOIREQ22/00357 sent to you on 7
December 2022;
• The FOI request and decision in FOIREQ22/00357;
• The FOI Act, in particular sections 48, 49, 50, 51 and 51A of the FOI Act; and
• The FOI Guidelines issued by the Office under s 93A of the FOI Act (the FOI
Guidelines).
I am satisfied that the document subject to your amendment request was sent to you
by the OAIC in response to the practical refusal notice for FOI request FOIREQ22/00357
2
on 7 December 2022. I am satisfied that the document contains your personal
information and that the information has been used, is being used, or is available for
use, by the OAIC for administrative purposes.
Consideration
The FOI Guidelin
es1 state that when assessing whether the information in a
document is incomplete, incorrect, out of date or misleading, a decision maker
should consider:
• the nature of the information the applicant seeks to amend
• the evidence on which the decision is to be based, including the
circumstances in which the original information was provided, and
• the consequences of amendment, where relevant.
Nature of the information you are seeking to amend
It appears the sentence you are seeking to amend is part of the notification of
withdrawal email (‘the document’) sent to you in relation to the practical refusal
process in FOIREQ22/00357. The relevant sentence is as fol ows:
As we did not receive a response from you by the deadline, your request has been
taken to be withdrawn.
You have stated that the document is incorrect and misleading. In particular, you
make the following statements in your amendment request:
You cannot say you did not receive a response to your practical refusal consultation
when the foi itself stated that any such practical refusal consultation is given a
response of no withdrawal.
You claim is misleading and untrue.
For the purposes of the FOI Act I seek amendment of your misleading and untrue
claim that no response was given as it factual y incorrect as the foi itself gave such a
response in the event of such a practical refusal consultation.
I have noted the material you have directed us to in your initial FOI request
FOIREQ22/00357 of 30 October 2022, which contained the fol owing statement:
1 https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-7-amendment-and-annotation-of-
personal-records/
3
For any practical refusal notice I give advance notice that I do not withdraw or vary
my foi.
Incorrect
The FOI Guidelines state at Part 7.17 that ‘Incorrect’ has its normal everyday
meaning. Personal information is incorrect if it contains an error or defect. An
example is inaccurate factual information about a person’s name, date of birth,
residential address or current or former employment.
In assessing whether the sentence is incorrect, you sought to rely on your initial FOI
request for FOIREQ22/00357 in which you state “For any practical refusal notice I give
advance notice that I do not withdraw or vary my foi.”
In making this decision I have considered the ordinary definition of a ‘response’. I
consider it a necessary feature of a response that it is in reply to or is answering a
question or statement. In your initial FOI request of 30 October 2022, you have
provided a statement outlining your position on any possible practical refusal notice.
Despite that statement, the OAIC is required under section 24(1)(a) of the FOI Act to
undertake a request consultation process before refusing a request for a practical
refusal reason. In my practical refusal notice of 22 November 2022, I acknowledged
your position however advised you as to the requirements of s 24(1)(a) of the FOI Act,
which says:
… where an agency is satisfied that a practical refusal reason exists, it
must
undertake a request consultation process before making a decision to refuse the
request.
I am of the view that your statement contained in your FOI request dated 30 October
2022 is not a ‘response’ to the practical refusal notice which was sent to you at a later
date, 22 November 2022, as it was not provided in reply to or in answering the
practical refusal notice. As you had not yet received the notice at the time of making
your statement, you were not able to consider the reasons for practical refusal
contained therein, and were therefore unable to respond to the issues raised in the
notice.
Having considered the above, I am satisfied that the relevant sentence, ‘As we did
not receive a response from you by the deadline, your request has been taken to be
withdrawn’ is factually accurate and correct.
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Misleading
The FOI Guidelines state at Part 7.21 that personal information is misleading if it
could lead a reader into error or convey a second meaning which is
untrue or inaccurate. The FOI Guidelines provide the following example of
misleading:
For example, an applicant may claim that a record of opinion or advice is misleading
because it does not contain information about the circumstances surrounding that
opinion or recommendation. The applicant may seek to have incorporated in the
document information that sets out the context for that opinion or
recommendation.
My email to you of 7 December 2022 refers to my letter of 22 November 2022 which
provided notice under section 24AB of the FOI Act. I therefore consider that the email
incorporates the relevant contextual information from the letter, in particular the
following passage in the letter:
I note that in your request you stated the fol owing:
“For any practical refusal notice I give advance notice that I do not withdraw or
vary my foi”
However, as per section 24(1)(a) of the FOI Act, where an agency is satisfied that a
practical refusal reason exists, it
must undertake a request consultation process before
making a decision to refuse the request.
The email, when read together with the referenced letter, does not provide an
incomplete or misleading record regarding the circumstances in question.
Having considered the above and having reviewed the material that was before the
OAIC officer in FOIREQ22/00357, and the document that is subject to this amendment
request, I am not satisfied that the opinion is misleading. In my view, the relevant
sentence conveys the clear and accurate conclusion that the OAIC did not receive a
response from you to the practical refusal notice by close of business Tuesday 6
December 2022.
In light of the above, I do not consider the statement to be misleading.
Conclusion
In addition to the above reasons, I note in
‘MY’ and Australian Building and
Construction Commission (Freedom of information) [2017] AICmr 108 (‘MY’), the
former Australian Information Commissioner Timothy Pilgrim considered whether
opinions of the author of the document about the IC review applicant should be
5
amended. In making a finding that the amendment request should be refused,
Commissioner Pilgrim said at paragraphs [28] – [31]:
I consider that the views expressed in the first form are the opinions of the author of
the document. It is apparent they are based on evidence before the ABCC. I consider
that the opinions expressed in the form are an informed assessment which takes into
account competing facts and views. The applicant refers to the same facts, but
concludes that they are not evidence that he had no interest in reaching an
agreement or engaging with the ABCC’s representative. The applicant is entitled to
his opinion; however this does not mean that the opinions expressed in the form are
incorrect because the applicant disagrees with them.
As the FOI Guidelines explain:
... The opinion may be ‘correct’ if it is presented as an opinion and not
objective fact, [if] it correctly records the view held by the third party, and is
an informed assessment that takes into account competing facts and views. .
In this case, I consider that accepting the applicant’s contentions as ‘correct’, and
therefore possibly al owing for the amendment, would effectively change the record
of the author’s opinion as expressed at the time. This, in my view, would be contrary
to the principle that government records are as accurate as possible.
For these reasons, I am satisfied that the opinions expressed in the first form are not
incomplete, incorrect or misleading as claimed by the applicant.
In my view, the reasoning in ‘MY’ is also relevant in this case.
The sentence subject to the amendment request is that of myself as the FOI delegate
in FOIREQ22/00357 during the process of FOI decision making in that matter. Allowing
the amendment would effectively change the record of my view as expressed at that
time.
For the above reasons, based on the information before me at this time, I am not
satisfied that the decision document contains information that is incorrect or
misleading.
Your documents have been annotated
Where the OAIC has decided not to amend a document, you are entitled to have the
record annotated provided your request is not irrelevant, defamatory or unnecessarily
voluminous.
2 This means that a statement is placed on the relevant record, cross
2 See s 51(1)(b) of the
Freedom of Information Act 1982 and
Francis and Department of Veterans' Affairs
(Freedom of information) [2020] AATA 1419.
6
indexed to the material at issue, outlining your views on why you consider the
information to be incomplete, incorrect, out of date or misleading, and your reasons
for this.
I have decided to annotate the relevant documents. This means that the OAIC wil
place a note on the file for FOIREQ22/00357 which states exactly what you have said
about the material at issue. The Office will not alter your submissions.
This will ensure that moving forward, anyone who views the relevant files will see that
they have been annotated with your submissions.
Appendix A contains information about your review rights.
Yours sincerely
Molly Cooke
Lawyer
18 January 2023
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Appendix A: Review rights
Internal review
You have the right to apply for an internal review of my decision under Part VI of the
FOI Act. An internal review will be conducted, to the extent possible, by an officer of
the OAIC who was not involved in or consulted in the making of my decision. If you
wish to apply for an internal review, you must do so in writing within 30 days. There
is no application fee for internal review.
If you wish to apply for an internal review, please mark your application for the
attention of the FOI Coordinator and state the grounds on which you consider that
my decision should be reviewed.
Applications for internal reviews can be submitted to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Alternatively, you can submit your application by email to xxx@xxxx.xxx.xx, or by fax
on 02 9284 9666.
Further Review
You have the right to seek review of this decision by the Information Commissioner
and the Administrative Appeals Tribunal (AAT).
You may apply to the Information Commissioner for a review of my decision
(IC review). If you wish to apply for IC review, you must do so in writing within
60 days. Your application must provide an address (which can be an email address or
fax number) that we can send notices to and include a copy of this letter. A request
for IC review can be made in relation to my decision, or an internal review decision.
It is the Information Commissioner’s view that it will usually not be in the interests of
the administration of the FOI Act to conduct an IC review of a decision, or an internal
review decision, made by the agency that the Information Commissioner heads: the
OAIC. For this reason, if you make an application for IC review of my decision, and the
Information Commissioner is satisfied that in the interests of administration of the
Act it is desirable that my decision be considered by the AAT, the Information
Commissioner may decide not to undertake an IC review.
8
Section 57A of the FOI Act provides that, before you can apply to the AAT for review
of an FOI decision, you must first have applied for IC review.
Applications for IC review can be submitted online at:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR
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Alternatively, you can submit your application to:
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Or by email to xxxxx@xxxx.xxx.xx, or by fax on 02 9284 9666.
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