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Purrer v Office of the Information Commissioner[2021] QCATA 92

Purrer v Office of the Information Commissioner[2021] QCATA 92

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Purrer v Office of the Information Commissioner & Anor [2021] QCATA 92

PARTIES:

JOSEF PURRER

(applicant/appellant)

V

OFFICE OF THE INFORMATION COMMISSIONER

(first respondent)

DEPARTMENT OF EDUCATION AND TRAINING

(second respondent)

APPLICATION NO/S:

APL098-19

ORIGINATING

APPLICATION NO/S:

OCL018-19

MATTER TYPE:

Appeals

DELIVERED ON:

30 July 2021

HEARING DATE:

31 March 2020

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where applicant applied to second respondent for amendment of records containing personal information – where applicant argued the records were inaccurate, incomplete or misleading – where second respondent refused request – where applicant applied to first respondent for a review of that decision – where first respondent affirmed second respondent’s decision – where applicant filed in the Tribunal an application for leave to appeal or appeal against the first respondent’s decision – where appeal may only be on a question of law  – where grounds of appeal allege denial of natural justice and procedural fairness, a failure to consider evidence or give insufficient weight to evidence, insufficient reasons, a failure to apply correct test to the legal definition of “inaccurate”, and a failure to consider applicant’s grounds that information was “misleading” or ‘incomplete” – where first three grounds of appeal are not fully particularised – whether first respondent was in error by following certain legal authorities relating to the amendment of official records

Information Privacy Act 2009 (Qld), s 12, s 41, s 44, s 70, s 72, s 99, s 100, s 123, s 132

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(3)(a)

A4STL6K and Queensland Health (unreported, QIC, 6 September 2013)

Crewdson v Central Sydney AHS [2002] NSWCA 345

Director-General, Department of Community Services v S [2000] NSWADTAP 27

Doelle v Legal Aid Office (Qld) (1993) QAR 207

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

G78QTW and Department of Education [2019] QICmr 5

Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201

Pivovarova v Michelsen [2019] QCA 256

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

First Respondent:

K McGuire i/b Office of the Information Commissioner

Second Respondent:

A Psaltis i/b Clayton Utz

REASONS FOR DECISION

  1. [1]
    On 30 October 2017, the Applicant made an application under the Information Privacy Act 2009 (Qld) (“IPA”) to the Second Respondent seeking amendment of certain “OneSchool” records containing personal information of the Applicant arising out of issues concerning the Applicant’s child.  The Applicant asserted that the records were inaccurate, incomplete and misleading.  The records in question were:
    1. (a)
      Record 1 – a record created by the relevant school’s Deputy Principal in relation to a meeting between the Applicant, the child’s other parent, the Principal and the Deputy Principal.
    2. (b)
      Record 2 – a record created by the Principal in relation to a phone call between the Applicant and the Principal on the day before that meeting.
    3. (c)
      Record 3 – a record created by the Deputy Principal in relation to phone calls between the Applicant and the Deputy Principal on the day before the meeting.
  2. [2]
    The Second Respondent initially decided to refuse to amend the records, but on an internal review it was subsequently decided to amend some information in Record 1 on the basis that it was incomplete and therefore misleading, and an amendment was made to the record by notation.  The Second Respondent otherwise refused again to amend any of these records.
  3. [3]
    The Applicant then applied to the Information Commissioner (“IC”) for external review[1] of the Department’s decisions “in their entirety”,[2] i.e. the decision to amend part of Record 1 by notation, and the decision to refuse to amend the balance of the three records. 
  4. [4]
    On 20 February 2019, the IC published a decision and reasons affirming the Department’s decision to refuse the Applicant’s requested amendments.[3] 
  5. [5]
    The Applicant has now appealed against the IC’s decision.  In that regard, s 132 of the IPA relevantly provides:

132 Appeal to Queensland Civil and Administrative Tribunal on question of law

  1. (1)
    A participant in an external review may appeal to the appeal tribunal against a decision of the information commissioner on the external review.
  1. (2)
    The appeal may only be on a question of law.

…

  1. (3)
    The appeal may only be by way of a rehearing.

The IC decision

  1. [6]
    In relation to the Applicant’s request for review of the decision to amend part of Record 1 by adding a notation, the IC noted that s 99 of the IPA allowed a “person affected by a reviewable decision” to apply for an external review of that decision.  The IC also noted that the definition of “reviewable decision” in the IPA relevantly includes:[4]
  1. (f)
    a decision … refusing amendment of a document under section 72.
  1. [7]
    The IC considered that, as this definition did not include any reference to a decision permitting amendment of a document, then the Department’s decision to permit amendment of Record 1 by notation was not susceptible to external review.  However, the IC further observed:[5]

Even if I were able to review the Department’s decision to permit amendment, I note that the applicant’s concerns regarding the notation to part of Record 1 are the same as the applicant’s concerns regarding Record 1 in its entirety (that is, that Record 1 is an inaccurate, incomplete, out of date and misleading representation of the meeting in question), and further note that these concerns are addressed in the below reasons.

  1. [8]
    The IC then turned to a consideration of the Applicant’s broader challenges to the Department’s refusal to amend the relevant records.
  2. [9]
    The IC had regard to s 72 of the IPA, which sets out a number of non-exclusive grounds on which a requested amendment may be refused, and identified the relevant questions for the external review as being:
    1. (a)
      whether the Applicant had demonstrated that the information sought to be amended was inaccurate, incomplete, out of date, or misleading; and
    2. (b)
      if so, whether under s 72(1) of the IPA, amendment of the information may still be refused. 
  3. [10]
    In relation to Record 1, the IC set out the terms of the record and comprehensively canvassed the Applicant’s submissions, both at first instance and on the external review.  The IC appropriately summarised the Applicant’s position by noting[6] that in essence the Applicant submitted that Record 1 was out of date, given subsequent production of the audio recording of the meeting to the Department, and that the audio recording demonstrated that Record 1 was inaccurate and/or incomplete, and therefore misleading.  As to this, the IC concluded:[7]

Record 1 comprises the Deputy Principal’s one paragraph record, about 400 words in length, of the matters discussed during the meeting involving the Deputy Principal, Principal, applicant and other parent of the child.  The audio recording of the meeting indicates that it was about 45 minutes in length.  Record 1 is a brief summary of the matters discussed, as recalled by the Deputy Principal after the meeting.  As such, it is necessarily reliant on the Deputy Principal’s recollection of the discussion, understanding of matters discussed by the parents, opinions regarding which aspects of the discussion required or warranted recording, and manner of expression, in terms of summarising these aspects.  It cannot, in my opinion, be divorced from the perspective of its author.  It follows that I do not accept that Record 1 is factually erroneous by virtue of it setting out the Deputy Principal’s perspective regarding what was said, instead of recording what was actually said.

  1. [11]
    The IC considered carefully the Applicant’s arguments concerning the 45 minute audio recording made by the Applicant of the meeting which was the subject of Record 1, noting that the Applicant seemed to contend that the author of Record 1, the Deputy Principal, did not actually hold nor accurately record their understanding of the meeting.  Rather, it was argued that the audio recording demonstrated that Record 1 contained what the Applicant called “erroneous statements of facts or opinions shown to be based on erroneous facts”.
  2. [12]
    The IC accepted[8] that the audio recording constituted objective evidence of the discussion of the meeting, and found:[9]

Having done so, I am satisfied that the nine paragraphs of Record 1, as recorded by the Deputy Principal, are based on the Deputy Principal’s recollection and understanding of a relatively lengthy discussion, whereas the applicant’s specific concerns regarding the nine paragraphs of Record 1 (noted at paragraphs 24 to 28 above) are based on the applicant’s comparatively detailed recollection of the discussion (assisted by the audio recording) in combination with their interpretation of Record 1.

  1. [13]
    The IC referred to the Applicant’s concerns about alleged inaccuracies in Record 1, and said:[10]

Generally, these concerns stem largely from the applicant’s expectation that Record 1 should capture the same words, level of detail and order in which issues were discussed; however, given the length and nature of a record such as Record 1, only a summary is possible.  Consequently the applicant’s concerns about the nine paragraphs are based on a relatively literal, detailed examination of the audio recording. … I consider that the Deputy Principal’s understanding was based on the entirety of the 45 minute conversation, which was wide ranging and at times circled back to further discuss particular issues.”

  1. [14]
    The IC concluded in respect of Record 1:[11]

Whilst I acknowledge that Record 1 does not contain the wording, expression, level of detail, focus or emphasis desired by the applicant, and that the applicant has a different understanding about the matters discussed during the meeting, I do not consider that the Deputy Principal’s recollections and opinions comprise or are based on erroneous facts, simply by virtue of the fact that they diverge from the applicant’s understanding of the discussion and interpretation of Record 1.  This alone is not enough to render Record 1 inaccurate, incomplete, out of date or misleading, and is therefore not sufficient to enliven the right to amend a document under the IP Act.

Given the nature of the information the applicant seeks to amend, the applicant would need to establish that the Deputy Principal did not actually hold the views set out in Record 1.  The applicant has not established that this is the case.

  1. [15]
    In relation to Record 2, which concerned a telephone conversation between the Applicant and the Principal, the IC noted that the Applicant was unable to produce a copy of the audio recording of that phone call, despite claiming that such a recording existed.  The Applicant could only provide a document which purported to be a transcript of the phone call.  The IC considered that there was insufficient material from which it could be concluded that the document was an actual (i.e. complete and accurate) transcript of the entire phone call.  The IC, however, was prepared to proceed on the basis that the document represented the Applicant’s understanding of the phone call, but was also satisfied that Record 2 was based on the Principal’s recollections of and opinions regarding the telephone conversation.  The IC concluded:[12]

The applicant’s differing recollection alone is not enough to amount to Record 2 being inaccurate, incomplete, out of date or misleading, and is therefore not sufficient to satisfy the requirements to amend a document under the IP Act.

  1. [16]
    Record 3 was a two-part document authored by the Deputy Principal in relation to a telephone discussion between the Deputy Principal, the Applicant and the child’s other parent.  In essence, the Applicant asserted that the record omitted reference to matters which he said were discussed and included matters which he said were not discussed.
  2. [17]
    The IC noted that there was no objective evidence of the contents of the particular discussion, and relevantly concluded:[13]

Record 3 is a brief summary of the matters discussed, as recalled by the Deputy Principal after the telephone conversations.  Again, it is necessarily reliant on the Deputy Principal’s recollection and understanding of the conversations, opinions regarding which aspects of the discussion should be recorded, and manner of expression.  As such, I do not accept that Record 3 is factually erroneous by virtue of it recording the Deputy Principal’s recollections and opinions of what was said, instead of recording what was actually said.

  1. [18]
    The IC acknowledged that the Applicant had a different understanding of the conversations which were the subject of Record 3, but did not consider that this difference established that the Deputy Principal’s recollections of the conversations comprised or were based on erroneous facts. Rather, the IC was satisfied, on the material, that the Deputy Principal actually held and actually recorded their understanding of the conversations in Record 3. 
  2. [19]
    The IC then went on to express the view that, even if the IC had been satisfied that any of the subject records had been inaccurate, incomplete, out of date or misleading, the IC would not have exercised the discretion to amend the records.  In that regard, it is sufficient to set out the following passage from the IC’s decision:[14]

I am satisfied that amending the Records in accordance with the applicant’s request would not be appropriate.  Not only would it destroy the integrity of public records, which form part of the applicant’s child’s OneSchool profile, it would also artificially substitute the applicant’s views for the recollection and opinions of the authors, that is, the Principal and Deputy Principal.  It is clear from the applicant’s requests and submissions that the applicant remains aggrieved about matters that were discussed during the meeting and telephone conversations.  However, as previously noted, the focus of the amendment provisions of the IP Act is ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm the applicant or misrepresent personal facts about the applicant.  The very nature of Records 1, 2 and 3–that is, file notes of the Principal and Deputy Principal recording their recollections and opinions about telephone conversations and a meeting–are such that they are not types of records to which the IP Act’s scheme for amendment is intended to apply.  The amendment provisions of the IP Act cannot be used to alter the recollections and opinions of the Principal and Deputy Principal when those opinions and recollections were held by them and the Records merely reflect this.  Permitting amendment of the Records would, in my view, distort the overall record of what in fact transpired during the process, and as already noted, it is not the purpose of the amendment provisions of the IP Act to permit a re-writing of history.

Grounds of appeal

  1. [20]
    In his application for leave to appeal or appeal filed on 30 April 2019, the Applicant specified the following grounds of appeal:

I claim that there must have been an error of law in reaching the decision not to find that personal information recorded was inaccurate, misleading, incomplete and/or out of date.  I submit that:

  1. (i)
    I was denied natural justice and/or procedural fairness in the decision making process;
  1. (ii)
    The decision maker failed to consider evidence and/or placed insufficient weight or consideration to evidence supporting the application;
  1. (iii)
    The reasons for decision were insufficient in explanation to sustain the findings made;
  1. (iv)
    The decision maker failed to apply the correct test to the legal definition of the term ‘inaccurate’;
  1. (v)
    The decision maker failed to consider the applications [sic] grounds that the information sought to be amended was ‘misleading’ or ‘incomplete’.
  1. [21]
    The Applicant subsequently filed written submissions in which he advanced additional matters which were not related to, or did not arise out of, the grounds of appeal.  The Second Respondent, which is the active contradictor on this appeal, addressed those additional matters in submissions, and accordingly, they will also be dealt with below.

Right to amend personal information

  1. [22]
    The right to amend personal information is conferred by s 41 of the IPA:

41 Right to amend personal information in particular documents

  1. (1)
    Subject to this Act, an individual has a right under this Act to amend, if inaccurate, incomplete, out of date or misleading—
  1. (a)
    documents of an agency to the extent they contain the individual’s personal information; and
  1. (b)
    documents of a Minister to the extent they contain the individual’s personal information.

Notes—

1 See part 2 for how to exercise this right to amend.

2 Exclusions of the right are provided for under section 46 (which provides an amendment application may not be made to the information commissioner), part 4 (which provides particular circumstances where an entity may refuse to deal with an application) and section 72 (which provides grounds on which an entity may refuse amendment).

  1. (2)
    Subsection (1) applies to documents even if they came into existence before the commencement of this Act.
  1. [23]
    That right is not unfettered. As appears from the introductory words to the section, it is subject to the other provisions of the IPA.
  2. [24]
    “Personal information” is defined in s 12 of the IPA.  It was not in issue in the present case that the subject matter of the records was “personal information”.  Nor was it in issue that the Applicant was entitled to apply for amendment of that personal information under a process prescribed by s 44 of the IPA. 
  3. [25]
    Section 70 of the IPA requires the relevant agency or Minister to make a decision on an amendment application, and a failure to give notice of that decision within a prescribed period amounts to a deemed refusal.[15]
  4. [26]
    Section 72 of the IPA then provides:

72 Grounds on which amendment may be refused

  1. (1)
    Without limiting the grounds on which the agency or Minister may refuse to amend the document, the agency or Minister may refuse to amend the document because—
  1. (a)
    the agency or Minister is not satisfied—
  1. (i)
    the personal information is inaccurate, incomplete, out of date or misleading; or
  1. (ii)
    the information sought to be amended is personal information of the applicant; or
  1. (iii)
    if the application is purportedly made by an agent—that the agent is suitably authorised to make the amendment application; or
  1. (b)
    the document does not form part of a functional record.
  1. (2)
    In this section—

functional record, of an agency or Minister, means a record available for use in the day-to-day or ordinary performance of the agency’s or Minister’s functions.

  1. [27]
    There are two points to note here. 
  2. [28]
    The first is that the prefatory words of the section clearly operate to retain in the relevant agency or Minister a general discretion to refuse to amend.
  3. [29]
    The second is that none of the terms “inaccurate”, “incomplete”, “out of date”, or “misleading” are defined in the IPA.  Each of those is an ordinary expression, the meaning of which is plain.  The IC sought to elucidate the meaning of each of those terms by reference to their common meanings derived from the Macquarie Dictionary.  That exposition of the meaning of those common terms was not erroneous.
  4. [30]
    The Department’s initial decision to refuse to amend the records was a “reviewable decision”,[16] and the Applicant, as a person affected by the decision, was entitled to apply for internal review of the decision under chapter 3 part 8 of the IPA. 
  5. [31]
    The IPA then, in chapter 3 part 9, allows for a person affected by a reviewable decision to apply to have the decision reviewed by the IC.  In respect of such an external review, s 100 provides:

100 Onus

  1. (1)
    On an external review, the agency or Minister who made the decision under review has the onus of establishing that the decision was justified or that the information commissioner should give a decision adverse to the applicant.
  1. (2)
    However, if the decision under external review is a disclosure decision, the participant in the external review application who opposes the disclosure decision has the onus of establishing that a decision not to disclose the document or information is justified or that the commissioner should give a decision adverse to the person who wishes to be given access to the document.
  1. (3)
    In this section—

disclosure decision means—

  1. (a)
    a decision to disclose a document or information contrary to the views of a relevant third party obtained under section 56; or
  1. (b)
    a decision to disclose a document or information if the agency or Minister should have taken, but has not taken, steps to obtain the views of a relevant third party under section 56.
  1. [32]
    I should note, parenthetically, that it has long been accepted that while on an external review the ultimate legal onus is on the relevant agency or Minister, the practical or evidentiary onus shifts to the party challenging the decision to provide evidence in support of the contention that the party is entitled to amendment on the basis that the documents in question contain information which is inaccurate, incomplete, out of date or misleading.[17]
  2. [33]
    As noted above, by s 132 of the IPA, an appeal against the decision of the IC lies to this Appeal Tribunal, but such an appeal may only be on a question of law.
  3. [34]
    The prescription that an appeal such as the present may “only” be on a question of law is notable.  In a cognate context concerning appeals from this Appeal Tribunal to the Court of Appeal, the limitation in s 150(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that such an appeal may be made “only on a question of law” has been given full force, with the question of law defined precisely, and not extending to a mixed question of fact and law.[18]

The present appeal

  1. [35]
    The first ground of appeal alleges a denial of natural justice and/or procedural fairness.  These allegations are not particularised, and the Applicant’s submissions as to how he claims to have suffered a denial of natural justice or procedural fairness are opaque.  In his written submissions, the Applicant said:
  1. It is respectfully submitted that the finding was vitiated by error of law because, other than the instance where amendment was made, the decision did not adequately canvas whether or not the information in issue was factually erroneous.  Furthermore, the finding of the information commissioner extrapolates far more broadly on both authors perspectives than was provided in material up to that point.
  1. [36]
    He then complained further about factual findings made by the IC, contending, amongst other things, that matters on which the IC ultimately made findings were not sufficiently advertised when the IC had written to convey a preliminary view on the issue in the external review.  The Applicant also argued that he was not given the opportunity to make submissions on what he described as the “evidentiary value” of the transcript relating to Record 2. 
  2. [37]
    The Applicant’s first point is really a reflection of the Applicant’s fundamental complaint about each of the records, i.e. that the records are not factually accurate recitations or representations of the conversations which occurred.  That complaint does not, however, comprehend the task required to be undertaken by the IC on the external review, which was to determine whether the opinions and recollections set out in the records could actually have been held by the authors, and whether the information underlying the opinions or impressions was incorrect.
  3. [38]
    The Applicant was given notice of the approach being taken by the IC.  In the “preliminary reviews” letter from the IC to the Applicant dated 31 October 2018, the IC said:[19]

I have carefully considered your external review application, your submissions and the recording you made of a meeting on 11 July 2017.  You dispute the accuracy of the Records, stating that they are inaccurate, misleading, incomplete and contain false information, explain why you believe the records should be amended, including the importance of OneSchool, and provide suggested wording for the amendments you seek. 

I accept that the recording of a meeting taken by you relevant to Record 1 and your transcript of the telephone call on 10 July 2017 relevant to Record 2 may accurately reflect these interactions.  However, the Records are the recollections and opinions held by the authoring officers of the interactions at the time they created the Records.  There is nothing before me to suggest that the authoring officers did not hold those recollections and opinions at the time of creating the Records nor that those recollections and opinions were not accurately entered into the Records.

While I understand that the Records do not say what you want them to say, to amend the Records and substitute alternative words as suggested by you would destroy the integrity of the Department’s record keeping process and would be rewriting the Records in words other than the authoring officers. 

In the above circumstances, I consider that the most appropriate course of action would be for you to request the Department add a notation to the Records.

Therefore, for the reasons set out above, it is my preliminary view that your request for amendment of the Records may be refused.

  1. [39]
    The Applicant did not agree to informal resolution of the matter.  He provided submissions to the IC in response to the “preliminary view” letter.
  2. [40]
    The Applicant was therefore not denied either natural justice generally or procedural fairness in particular.
  3. [41]
    As to the issue concerning the accuracy of the purported transcript concerning Record 2, it is necessary to examine the background in a little detail.
  4. [42]
    The Applicant claimed to have an audio recording of the conversation which was the subject of Record 2 that he had provided to the Second Respondent.  The Second Respondent, however, said that he had not provided any such recording.  In those circumstances, the First Respondent asked the Applicant to provide a copy of the recording to the First Respondent for the purpose of the external review. 
  5. [43]
    The Applicant responded to that request saying:

To be clear, there is no second audio of the meeting on 11 July, there is only one. There is a separate recording of the telephone conversation between myself and the Principal on 10 July. It was this telephone conversation that was around 34 seconds in length.  It is a small file and may have been overlooked. Due to its limited length, I provided a transcript to the Department for convenience. Did you get a copy of the transcript at least?

  1. [44]
    In response, the First Respondent again sought the relevant recording from the Applicant.  The First Respondent said that if it did not receive the recording, it would proceed on the basis that an audio recording of the relevant conversation on 10 July 2017 “was either not taken or cannot be located and, in any event, cannot be considered in the present review”.
  2. [45]
    The Applicant then responded by making an allegation of harassment, claiming that the recording was “no longer readily accessible”, accepting that a decision would have to be made without the recording, and stating that he stood by the accuracy of the purported transcript.
  3. [46]
    From all of this, it is clear that the Applicant was on notice that the accuracy or otherwise of the purported documentary “transcript” relating to the Record 2 conversation was in issue.  This was confirmed in the “preliminary view” letter in which the IC said that there was nothing before the IC to suggest that the authoring officers did not hold the recorded recollection and opinions.
  4. [47]
    The Applicant had sufficient notice of the issue concerning the alleged audio recording, and there was no denial of natural justice or procedural fairness.
  5. [48]
    The second ground of appeal alleges that the IC failed to consider evidence or gave insufficient weight or consideration to evidence. 
  6. [49]
    Despite being cast in this form, the Applicant’s arguments addressed a somewhat different point.  The Applicant submitted:
  1. In the decision of the Department to find that one piece of information is incomplete and therefore misleading, the consideration given to this action was limited to determining that the decision was not a ‘reviewable decision’.  (See reasons in paragraph 12.)  However, the external review submitted that the Department had refused a request to amend the notation, which contained personal information that was inaccurate, misleading and incomplete, and was a request made under Section 44.  As such, the review sought to overturn a decision to refuse to amend the information contained in the amendment, not a review of the decision permitting amendment in the first place.  By failing to recognise the application was to review the refusal to amend the information, the decision is in legal error.
  1. [50]
    The premise of this argument is incorrect.  The IC’s reasons expressly recognise that the jurisdiction on an external review enables review of a refusal to amend information.[20]  As noted above, the point made by the IC was that the jurisdiction did not extend to a review of a decision to permit amendment of part of a record.
  2. [51]
    The balance of the Applicant’s arguments under this ground do not go to the IC’s consideration of the evidence, but contend that the IC misconstrued his written submissions.  The Applicant’s submissions on this appeal then undertake a lengthy analysis of selected extracts from the IC’s decision to seek to demonstrate that the IC had misunderstood, and therefore not dealt with, the Applicant’s arguments.  The gist of this argument can be gleaned from paragraph 43 of the Applicant’s written submissions on appeal, which concluded:

In other words, the submission was clearly that it did not matter that the wording, expression, level of detail, focus or emphasis was not that desired by the applicant, nor did it matter, and it was never submitted, that the applicant had a different understanding about the matters discussed.  The submission was that the information in dispute contained in the records were not based on fact, or were factually accurate, and this evidenced by the recording and transcript.

  1. [52]
    This harks back to the Applicant’s fundamental issue concerning the literal accuracy of the records.  It is clear from the IC’s reasons that the IC was well apprised of this issue and the arguments which the Applicant sought to advance on that issue.  The fact that the IC did not accede to those arguments does not demonstrate an error of law on the part of the IC.
  2. [53]
    Otherwise, the Applicant did not advance any argument to suggest that the IC had committed an error of law in consideration of the evidence.
  3. [54]
    The third ground of appeal alleged insufficiency of reasons.  The Applicant has not particularised these alleged insufficiencies, nor were they separately identified in his submissions.  At its highest, the Applicant, in his written submissions, referred to a number of findings and conclusions by the IC which the Applicant contended were not supported by reasons of sufficient clarity.  As with the previous grounds of appeal, however, these contentions were not so much about sufficiency of the reasons but rather that the Applicant disagreed with the IC’s reasoning which had led to the conclusions which were not favourable to the Applicant.
  4. [55]
    Having reviewed the IC’s reasons for decision, I accept the Second Respondent’s submission that in those reasons the IC:
    1. (a)
      set out the background to the matter and the evidence which was before the IC;
    2. (b)
      correctly stated the jurisdiction and the relevant law;
    3. (c)
      correctly identified and characterised the issues for determination; and
    4. (d)
      in respect of each record, set out the content of the record, sufficiently summarised and addressed the parties’ submissions, and provided sufficient reasons for reaching the IC’s conclusion with respect to each of the records.
  5. [56]
    No error of law has been demonstrated under this ground.
  6. [57]
    The next ground of appeal was that the IC failed to apply the correct test to the legal definition of the term “inaccurate”. 
  7. [58]
    Central to the IC’s decision was the following statement of principle which informed the approach adopted by the IC to determining the issues on each of the records:[21]

Where disputed information comprises an individual’s interpretation of events or issues, an applicant seeking amendment must establish not only that the relevant information inaccurately, incorrectly or misleadingly represents the underlying events or issues, but that the authoring individual had not actually held and accurately entered into the official record their particular understanding of those events.

  1. [59]
    The IC cited, as authority for those principles, a previous decision of the IC,[22] which in turn derived those principles from the judgment of Handley JA, with whom Ipp AJA and Davies AJA agreed, in the New South Wales Court of Appeal in Crewdson v Central Sydney AHS (“Crewdson”).[23]
  2. [60]
    The Applicant submitted that the IC was wrong in following these authorities, and joined issue in particular with “the core pre-requisites that disputed information comprises a specific individual’s interpretation of events or issues which is inaccurate etc., and the individual actually holding and accurately entering their interpretation of the events or issues in the record”.[24]
  3. [61]
    The Applicant’s submissions then descended into a critical analysis of selected findings made by the IC.  The Applicant, for example, referred to this extract from the reasons of the IC:[25]

… I am satisfied that the nine paragraphs of Record 1, as recorded by the Deputy Principal, are based on the Deputy Principal’s recollection and understanding of a relatively lengthy discussion, whereas the applicant’s specific concerns regarding the nine paragraphs of Record 1 (noted at paragraphs 24 to 28 above) are based on the applicant’s comparatively detailed recollection of the discussion (assisted by the audio recording) in combination with their interpretation of Record 1.

  1. [62]
    The Applicant then submitted:[26]

It is submitted that by attempting to find a disparity between the recollections and understandings of the author and applicant, an unfair and biased conclusion, based on no evidence, was reached.  It is of note that at no time in the amendment application was it claimed that the applicant’s concerns were based on a detailed recollection, as opposed to demonstrated proof.

  1. [63]
    In fact, paragraph [34] of the IC’s reasons, which contained the passage quoted and relied on by the Applicant, commenced as follows:

I accept that the audio recording constitutes objective evidence of the discussion at the meeting.  I have considered the discussion of approximately 45 minutes, as captured by the audio recording, in the order it occurred, in its entirety.  Having done so, I am satisfied that the nine paragraphs …

  1. [64]
    In short, contrary to the Applicant’s submissions, the IC’s reasons identified the evidence on which the IC’s conclusions were based.
  2. [65]
    Again, the underlying thrust of the Applicant’s submissions under this ground was his contention that the records were fatally infected by reason of their factual inaccuracy.  This is seen, for example, in his further submission that the reasoning adopted by the IC that the recollection and opinions of the author of Record 1 is not inconsistent with the audio recording:[27]

The finding does not perform a general test to determine whether the records as a whole purvey an unfair misleading interpretation despite consideration of accuracy – as accurate information could still be considered misleading and unfair.  Nor does it perform a specific test on the specific information in dispute contained in the records in order to justify any disparity with the audio recording and transcript.  By failing to do so, the finding is vitiated by error permitting clearly factually incorrect information to remain uncorrected.

  1. [66]
    The legal principles to be applied, and which in my opinion were applied by the IC in this case, are derived from the judgment of Handley JA in Crewdson:[28]
    1. (a)
      The IPA is not a vehicle for the determination of disputed questions of expert or other opinion when the recorded opinion was actually held and accurately entered in the official records.
    2. (b)
      The position might be different if an expert whose opinion had been accurately recorded recognised later that it was incorrect at the time and withdrew it.  However, the proper course would be to add a notation that the opinion had been withdrawn rather than to remove the original opinion.  An amendment in the latter form would falsify the records and attempt to rewrite history.  Without the original opinion the records would not tell the whole story and would be misleading.
  2. [67]
    That being said, there clearly are cases in which it can be said that there is no factual foundation for an opinion which has been expressed or in which an opinion has been reached following assessment of conflicting versions.  Director-General, Department of Community Services v S,[29] for example, was a case in which an appeal tribunal held that both an independent inquiry and the material placed in evidence before the Tribunal permitted the conclusion that there was no factual basis for the opinions and concerns expressed in the relevant documents.  I accept the Second Respondent’s submissions that the IC’s reasons for decision in the present case do not demonstrate a departure from the applicable legal tests:
    1. (a)
      In respect of Record 1, the First Respondent firstly noted that the record was a brief summary of a conversation that was about 45 minutes in length.  After considering an audio recording of the conversation, the First Respondent was satisfied that the record was based on the author’s recollection and understanding of the conversation (i.e. that such recollection and understanding was actually held by the author).  The First Respondent also found that the record was not “an unreasonable interpretation of the discussion” and was “not inconsistent with the audio recording of that discussion”.[30]  In other words, after considering the objective evidence of the discussion, i.e. the audio recording, the First Respondent found no issue with the factual foundation of the contents of Record 1.
    2. (b)
      In respect of Record 2, the First Respondent identified that the record was based on the author’s recollection and understanding of a brief telephone conversation with the Applicant.  The Applicant had provided what he claimed was a “transcript” of the relevant conversation, but the First Respondent found that this “transcript” merely recorded the Applicant’s recollection and understanding of the conversation.  That was a factual finding open to the First Respondent on the evidence.  Having made that factual finding, there was no objective evidence before the First Respondent from which it could find that the factual foundation of Record 2 was incorrect.  In those circumstances, the First Respondent’s satisfaction that the Principal actually held and recorded their understanding of the conversation and its finding that the Applicant’s differing recollection was insufficient to satisfy the statutory test for amendment was not infected by any error of law.
    3. (c)
      Similarly, in relation to Record 3, the First Respondent had no objective information before it of the relevant conversation.  The First Respondent considered two competing recollections of the conversation and held, as was open, that the author actually held the recollections in Record 3, and that such recollections were not based on erroneous facts.
  3. [68]
    The Second Respondent concedes that the IC’s statement of the relevant legal test “could have been expressed more clearly and completely”.[31]  Be that as it may, the reasons in fact proceed to apply the proper tests conventionally, and no error of law has been demonstrated by the Applicant.
  4. [69]
    The final formal ground of appeal was that the IC failed to consider whether the information sought to be amended was “misleading” or “incomplete”. 
  5. [70]
    This ground is, with respect, not maintainable.  In the reasons for decision, the IC expressly set out the relevant law regarding whether a record is misleading or incomplete, and gave express consideration to those matters for each of the records.  No error of law is demonstrated.
  6. [71]
    Apart from those formal grounds of appeal, there are two further matters raised in the Applicant’s submissions which need to be addressed.
  7. [72]
    The first is a submission to the effect that the IC’s decision went beyond the bounds of s 123 of the IPA by substituting a “stronger” decision than had originally been made.
  8. [73]
    Section 123 of the IPA provides:

123 Decision on external review

  1. (1)
    The information commissioner, after conducting an external review of a decision, must make a written decision—
  1. (a)
    affirming the decision; or
  1. (b)
    varying the decision; or
  1. (c)
    setting aside the decision and making a decision in substitution for the decision.
  1. (2)
    To remove any doubt, it is declared that subsection (1) does not apply if the external review is resolved informally.
  1. (3)
    The commissioner must include in the decision the reasons for the decision.
  1. (4)
    The commissioner must give a copy of the decision to each participant.
  1. (5)
    If—
  1. (a)
    a document is to be released because of the external review; and
  1. (b)
    the commissioner has notified a person under section 110(4) and the person did not become a participant in the review;

the commissioner must take reasonable steps to notify the person of the release.

  1. (6)
    The commissioner must arrange to have decisions and reasons for decisions published.
  1. (7)
    However, subsection (6) does not require the commissioner to arrange to have a decision and reasons for a decision published to the extent they contain, or publication would disclose, exempt information or contrary to public interest information.
  1. [74]
    It is trite to observe that the external review by the IC is conducted by way of a de novo consideration of the matter on the factual material before the IC.  It is also well established that a reviewing authority, such as the IC, may reach its own reasons for decision that may differ from those of the original decision maker in order to make a correct and preferrable decision.[32]
  2. [75]
    The so-called “strengthening” of the decision in this case is a reflection of the IC’s approach to, and conclusions in, the decision.  No error of law has been demonstrated on this issue. 
  3. [76]
    Separately, the Applicant also contended that the IC had applied the wrong onus of proof.  In fact, what the IC did was recognise the shifting of the evidentiary onus to which I referred above.  The IC did not commit any error of law in recognising and applying that shifting onus.
  4. [77]
    Finally, and for completeness, I note that the Applicant confirmed in the hearing that he was not persisting with his purported claims in this appeal for some sort of interim injunction and the appointment of some sort of independent party.

Conclusion

  1. [78]
    For the reasons given above, the Applicant has not persuaded me that the decision of the IC was infected by an error of law.
  2. [79]
    Accordingly, the application for leave to appeal against the decision of the IC made on 20 February 2019 will be dismissed.

Footnotes

[1]  IPA, s 99.

[2]  Application for External Review, Appeal Book Part B, page 2.

[3]G78QTW and Department of Education [2019] QICmr 5 (“G78QTW”).

[4]  IPA, sch 5.

[5]G78QTW, [13].

[6]  Ibid, [30].

[7]  Ibid, [32].

[8]  Ibid, [34].

[9]  Ibid. 

[10]  Ibid, [35].

[11]  Ibid, [37]-[38].

[12]  Ibid, [53].

[13]  Ibid, [63].

[14]  Ibid, [74].

[15]  IPA, s 71. 

[16]  IPA, sch 5.

[17]  See, for example, Doelle v Legal Aid Office (Qld) (1993) QAR 207, [18], dealing with the cognate provisions under the Freedom of Information Act 1992 (Qld); cited and applied in A4STL6K and Queensland Health (unreported, QIC, 6 September 2013), [12].

[18]Pivovarova v Michelsen [2019] QCA 256; Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201.

[19]  Appeal Book, Part B, page 42, and omitting footnotes.

[20]G78QTW, [13].

[21]  Ibid, [16].

[22]A4STL6K and Queensland Health (unreported, Queensland Information Commissioner, 6 September 2013).

[23]  [2002] NSWCA 345.

[24]  Applicant’s written submissions, [46].

[25]G78QTW, [34].

[26]  Applicant’s submissions, [50].

[27]  Applicant’s written submissions, [54].

[28]  [2002] NSWCA 345, [34]-[35].

[29]  [2000] NSWADTAP 27.

[30]G78QTW, [36].

[31]  Second Respondent’s written submissions, [65].

[32]Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Close

Editorial Notes

  • Published Case Name:

    Purrer v Office of the Information Commissioner & Anor

  • Shortened Case Name:

    Purrer v Office of the Information Commissioner

  • MNC:

    [2021] QCATA 92

  • Court:

    QCATA

  • Judge(s):

    Justice Daubney P

  • Date:

    30 Jul 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Crewdson v Central Sydney AHS [2002] NSWCA 345
3 citations
Jump To
Cite 1 - [2002] NSWCA 345
Cite 2 - [2002] NSWCA 345
Cite 3 - [2002] NSWCA 345
Department of Community Services v S [2000] NSWADTAP 27
2 citations
Jump To
Cite 1 - [2000] NSWADTAP 27
Cite 2 - [2000] NSWADTAP 27
Doelle v Legal Aid Office (Qld) (1993) QAR 207
2 citations
Jump To
Cite 1 - (1993) QAR 207
Cite 2 - (1993) QAR 207
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
2 citations
Jump To
Cite 1 - (1979) 46 FLR 409
Cite 2 - (1979) 46 FLR 409
G78QTW and Department of Education [2019] QICmr 5
15 citations
Jump To
Cite 1 - [2019] QICmr 5
Cite 2 - [2019] QICmr 5
Cite 3 - [2019] QICmr 5
Cite 4 - [2019] QICmr 5
Cite 5 - [2019] QICmr 5
Cite 6 - [2019] QICmr 5
Cite 7 - [2019] QICmr 5
Cite 8 - [2019] QICmr 5
Cite 9 - [2019] QICmr 5
Cite 10 - [2019] QICmr 5
Cite 11 - [2019] QICmr 5
Cite 12 - [2019] QICmr 5
Cite 13 - [2019] QICmr 5
Cite 14 - [2019] QICmr 5
Cite 15 - [2019] QICmr 5
Lee v Crime and Corruption Commission [2020] QCA 201
2 citations
Jump To
Cite 1 - [2020] QCA 201
Cite 2 - [2020] QCA 201
Pivovarova v Michelsen(2019) 2 QR 508; [2019] QCA 256
2 citations
Jump To
Cite 1 - [2019] QCA 256
Cite 2 - [2019] QCA 256

Cases Citing

Case NameFull CitationFrequency
Stella v Griffith University [2025] QCATA 202 citations
1

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