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Application for amendment of personal records under Freedom of Information Act 1982 (Cth)

Application for amendment of personal records under Freedom of Information Act 1982 (Cth)

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This precedent has been authored by Dr Damien J Cremean, Adjunct Professor, University of Queensland.

Introductory note

This precedent is an application for amendment of personal records under Freedom of Information Act 1982 (Cth).

Legislation 

Legislation providing for freedom of information is in force in the Commonwealth and in all states and territories under various names.

The Commonwealth Act is the Freedom of Information Act 1982 (Cth) (Cth FOI Act). State and territory Acts are:

• Freedom of Information Act 1989 (ACT);

• Information Act 2002 (NT);

• Government Information (Public Access) Act 2009 (NSW);

• Right to Information Act 2009 (Qld); • Freedom of Information Act 1991 (SA); • Right to Information Act 2009 (Tas);

• Freedom of Information Act 1982 (Vic); and

• Freedom of Information Act 1992 (WA).

The Commonwealth Act has served as the base model for all of these laws. It has, however, been amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth). But variations occur now between that Act and those laws. Indeed, as between the various states and territories there are now significant areas of difference as well, due to amendments.

The particular state or territory law in question should be consulted if a state or territory matter is in issue, ie if information is sought at state or territory or local government levels, or from a state or territory agency, the relevant state or territory law must be consulted.

When government records about someone need amendment or annotation

Commonwealth

A person may apply to an agency or Minister for amendment or annotation of the record of information kept by that agency or Minister: section 48 of the Cth FOI Act. That is, if the information:

• is contained in a document to which access has been lawfully provided;

• is personal information about the person that is:

o incomplete; o incorrect;

o out of date; or

o misleading; and

• has been used or is being used or is available for use by the agency or Minister for an administrative purpose.

An “agency” means a “Department”, a “prescribed authority” or a “Norfolk Island authority”: section 4(1) of the Cth FOI Act. A prescribed authority means a body corporate or an unincorporated body established for a public purpose but it does not include an incorporated company or association, a Royal Commission or commission of inquiry: section 4(1).

The discretion to amend is unfettered other than that it must be exercised in a way that is in general harmony with the objects of the Cth FOI Act.

States and territories

Australian Capital Territory: A provision in almost identical terms to section 48 of the Cth FOI Act appears in section 48 of the Freedom of Information Act 1989 (ACT). The latter, however, requires the applicant to be an Australian citizen.

Northern Territory: By section 16(b) of the Information Act 2002 (NT), every person has a right enforceable under that Act to correct his or her personal information if it is inaccurate, incomplete or out of date. In the event of disagreement between the person and the public sector organisation holding the information see section 16(c).

New South Wales: The Privacy and Personal Information Protection Act 1998 (NSW) section 15(1) requires a public sector agency to ensure that personal information is accurate, up to date, complete and not misleading. It may do so whether by way of corrections, deletions or additions. The person to whom the information relates may request amendment.

Queensland: Under the Information Privacy Act 2009 (Qld) section 41(1), an individual has a right to amend, inaccurate, incomplete, out of date or misleading, documents of an agency, to the extent they contain that individual’s personal information or documents of a Minister to the same extent. South Australia: A person to whom access to an agency’s documents has been given may apply for the amendment of the agency’s records (if information in such documents is in the person’s opinion incomplete, incorrect, out of date or misleading) under section 30 of the Freedom of Information Act 1991 (SA).

Tasmania: By section 17A of the Personal Information Protection Act 2004 (Tas) a person can request amendment of information about that person if that information is incorrect, incomplete, out of date or misleading.

Victoria: In effect, section 39 of the Freedom of Information Act 1982 (Vic) contains the same provision as section 48 of the Cth FOI Act. However, it also allows a deceased person via next-of-kin to make an application.

Western Australia: The Freedom of Information Act 1992 (WA) section 45(1) provides to the same effect as section 48 of the Cth FOI Act. A deceased person’s closest relative is given a right to apply for amendment under section 45(2).

Applying for amendment

Commonwealth

An application for amendment must comply with the requirements of section 49 of the Freedom of Information Act 1982 (Cth) (Cth FOI Act), including that it must:

• be in writing: section 49(a);

• specify an Australian address to which notices may be sent: section 49(c);

• be sent or delivered as required under the Act: section 49(d); and

• as far as practicable, specify (section 49(b)):

o the required matters which include the information claimed to be incomplete, incorrect, out of date or misleading; and

o which of these it is claimed the information is.

Additionally, by the Cth FOI Act, the applicant’s reasons for claiming the information is incomplete etc must be set out.

States and territories

Australian Capital Territory: The form a request must take, under section 48 of the Freedom of Information Act 1989 (ACT) must take, is set out in section 49.

Northern Territory: The Information Act 2002 (NT) section 31 sets out the procedure to follow in enforcing the right given by section 16(1) of that Act.

New South Wales: No particular procedure to be followed is set out by the Privacy and Personal Information Protection Act 1998 (NSW).

Queensland: The procedure for making an amendment application under section 41(1) of the Information Privacy Act 2009 (Qld) is set out in section 44. An approved form must be used: see section 44(4)(a).

South Australia: The form to be followed in making an application under section 30 of the Freedom of Information Act 1991 (SA) is set out in section 31 of that Act.

Tasmania: The form to be followed in making a request under section 17A of the Personal Information Act 2004 (Tas) is set out in section 17B of that Act.

Victoria: The form to be followed in making a request under section 39 of the Freedom of Information Act 1982 (Vic) is set out in section 40 of that Act.

Western Australia: How an application under section 45(1) of the Freedom of Information Act 1992 (WA) is to be made is set out in detail in section 46 of that Act.