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Part 7 — Amendment and annotation of personal records v1.1

Archived Document — This document is no longer in use. Read the current FOI guidelines.

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Version 1.1, October 2011

Interim guidelines

7.1 There are currently two Acts that allow individuals to seek access to their personal information and to have the information corrected or annotated. Part V of the FOI Act gives individuals an enforceable right of access to their own personal information held in documents of an agency or in official documents of a minister. The Privacy Act imposes obligations on record keepers (both government and private sector) to recognise an individual's entitlement to access to their personal information and to have the information amended, annotated or deleted.

7.2 These mechanisms will change substantially if the Government implements its proposed reforms to the Privacy Act following its consideration of report 108 of the Australian Law Reform Commission (ALRC), For Your Information – Australian Privacy Law and Practice. The ALRC recommendations propose a unified access and correction principle for the public and private sectors and the transfer of the access and correction mechanism from Part V of the FOI Act to the Privacy Act. The Government has indicated that it will accept these recommendations. For further details of the Government’s response to the ALRC report see the document First Stage Response published on the website of the Department of the Prime Minister and Cabinet.[1]

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Reasons for amendment and annotation of personal records

7.3 A fundamental principle of information privacy is that individuals are entitled to have access to their own personal information, except where the law provides otherwise (Information Privacy Principle (IPP) 6, s 14 of the Privacy Act). Agencies must also ensure that their records of personal information are relevant, up to date, complete and not misleading (IPP 7, s 14 of the Privacy Act). Agencies are expected to take all reasonable steps to ensure compliance. If an agency fails to comply with either IPP 6 or IPP 7, an individual may complain to the Information Commissioner under the Privacy Act.

7.4 The FOI Act provides a complementary procedure that gives individuals an enforceable right to access to documents (under Part III) and to initiate a correction or update (Part V) to their personal information held in agency records or in the official documents of a minister. Part V enables records that are incomplete, incorrect, out of date or misleading to be amended on the application of the affected person. An applicant may also ask for the record to be annotated to include a statement outlining their objection (s 51).

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Records that may be amended or annotated

7.5 Section 48 of the FOI Act requires a request for amendment or annotation of a document to meet the following criteria:

  • the document must be a document of an agency or an official document of a minister containing personal information about the applicant
  • the document must be one to which the applicant already has lawful access, whether as a result of an access request under the FOI Act or otherwise
  • the personal information in the document must be incomplete, incorrect, out of date or misleading
  • the personal information has been used, is being used or is available for use by the agency or minister for an administrative purpose.

Applies only to personal information

7.6 The right to request amendment or annotation only extends to documents that contain the applicant’s personal information. For example, a person cannot apply for correction or annotation of a policy document that contains no personal information.

7.7 An application for correction or annotation differs from the usual scheme of the FOI Act in that it is concerned with records of information contained in documents, rather than documents as such. A request for amendment or annotation extends to any record of the information that the agency or minister holds, if the information is used or is available for use for an administrative purpose (s 48(b)). For example, an applicant may claim that an agency document wrongly records their date of birth. The right to have that information corrected extends to all active records the agency has kept for administrative purposes where there is a reference to the applicant’s date of birth.

The personal information must be:

  • information (such as date of birth or residential address), or
  • an opinion (such as a medical opinion)

about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion (s 4(1)). Whether the information or opinion is true is not relevant.

7.8 Part V applies broadly to information that has been used, is being used, or is available for use for an administrative purpose. This includes where the information was only used once. It is irrelevant where or why the information is kept.

Information incomplete, incorrect, out of date or misleading

7.9 The right to request amendment arises only where the applicant's personal information in the record is incomplete, incorrect, out of date or misleading. The request may relate to several different pieces of information in one or more documents, or it may relate to only a single piece of information. A different reason may be claimed for each amendment sought. For example, the applicant may claim that part of the information is incorrect, another part is out of date and therefore the whole record is misleading.

Incorrect

7.11 ‘Incorrect’ bears its normal everyday meaning. Factual information, such as a date of birth, may be incorrect (or incomplete).

Incomplete

7.12 A record may be true but misleading because it is incomplete. For example, a case file may record that an applicant has two children, when in fact a third child was born after the file was created. The record is incomplete because it fails to record that the person now has three children, which may have implications for their entitlements or benefits.

Misleading

7.13 Information can be said to be misleading if it could lead a reader into error or convey a second meaning which is untrue. 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 a statement that sets out the relevant circumstances qualifying that opinion or recommendation.

Out of date

7.14 Personal information, whether in the form of factual data or an opinion, may become out of date as an individual’s circumstances change. An applicant may request that more recent information be inserted into the record. For example, a professional adviser may have given an opinion some years ago that an applicant was unqualified to undertake certain types of work. The applicant may have since undertaken further training or otherwise dealt with the circumstances that led to the opinion. The opinion, as personal information about the individual, would therefore be out of date, although it was correct at the time. The record should be amended by incorporating new information or a new opinion about the applicant’s fitness for work.

Amendment of recorded opinions

7.15 An agency or minister should be careful where a request for amendment relates to a document containing advice, recommendations or opinions of a third party (including a group). Such records should be amended only if the information is incorrect or incomplete, or if the author was shown to be biased or unqualified to form the opinion, or acted improperly or if a similar reason applies. The applicant’s disagreement with the opinion is not a sufficient reason to amend the record. This approach is consistent with the limitations on the Information Commissioner’s power to direct amendments of records in s 55M of the FOI Act (see Part 10 of these Guidelines). Where possible, the agency or minister should consult the person who provided the advice, opinion or recommendation.

Amendment or annotation contingent on prior access

7.16 A person only has a right to seek amendment or annotation under the FOI Act if they have lawful access to the document(s) in question (s 48). Lawful access includes access:

  • granted under Part III of the FOI Act
  • under an agency’s information publication scheme (see Part 13 of these Guidelines)
  • provided under an agency’s general discretion to allow access to its documents
  • required or permitted under any other law of the Commonwealth.

By contrast, a person does not need to have access to the document to make a complaint under the Privacy Act (IPP 7).

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How to apply for amendment or annotation

7.17 Sections 49 and 51A provide that an application for amendment or annotation must:

  • be in writing
  • specify certain information (discussed in more detail below at paragraphs 7.21–7.23)
  • provide an Australian address to which a notice can be sent
  • be sent by post to the agency's or minister's office address, or be delivered to an officer in the agency or in the minister's office.

Sending an application and providing a return address

7.18 The application requirements for amendment or annotation differ in two respects from the requirements for FOI access requests under Part III. A person applying for amendment or annotation must specify an Australian address, and the FOI Act does not expressly provide for applications to be submitted by email (ss 49(c) and 51A(d)).[2]

7.19 Sections 8 and 9 of the Electronic Transactions Act 1999 make it clear that any requirement under a law of the Commonwealth for a written application may be validly satisfied by email or other forms of electronic communication.

In the interests of consistency, the Information Commissioner suggests that agencies and ministers might accept an email address instead of a physical postal address under ss 49(c) and 51A(d), on the ground that this conforms with the spirit and intent of the Electronic Transactions Act 1999. The Information Commissioner also encourages agencies and ministers’ offices to extend any electronic application procedures developed for access requests under Part III to requests under s 48 for correction or annotation of information.

Information which must be specified

7.21 Section 49 provides that a request for amendment should as far as practicable specify:

  • the document(s) containing the information requiring amendment
  • the relevant information to be amended and whether it is claimed to be incomplete, incorrect, out of date or misleading
  • the applicant's reasons for claiming the information is incomplete, incorrect, out of date or misleading
  • the amendments being requested.

7.22 Section 51A provides that a request for annotation should:

  • specify as far as practicable the document(s) which require(s) annotation
  • be accompanied by a statement which specifies:
    • the information that is claimed to be incomplete, incorrect, out of date or misleading and whether it is claimed to be incomplete, incorrect, out of date or misleading
    • the applicant's reasons for so claiming
    • any other information that would make the information complete, correct, up to date or not misleading.

7.23 The express obligation on agencies in s 15(3) to help applicants to make a request that complies with the FOI Act applies only to access requests. There is no corresponding provision applying to requests for amendment or annotation. Nevertheless, it is good administrative practice for agencies to treat those requests in the same way. Adopting an informal approach, for example by using the telephone or email to contact applicants, can help to resolve problems and minimise delay in making a decision.

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Making decisions on a request for amendment

7.24 When assessing whether the information in the 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
  • the consequences of amendment, where relevant.

7.25 Where a person has requested amendment of their own personal information, an agency should apply its own procedures to satisfy itself of the person's identity before deciding whether to amend the record.

The evidence on which a decision should be based

7.26 As noted at paragraphs 7.21–7.22, an applicant must give particulars of the amendments being requested and the reasons for their request (ss 49 and 51A).

7.27 A decision to amend a record must be supported by a finding that the record is incorrect, incomplete, out of date or misleading (s 50). This requires a decision maker to undertake a reasonable investigation and to assess the available evidence. If an applicant does not provide evidence in support of their claim, an agency would be justified in refusing to amend the record. However, before refusing a request, a decision maker should give the applicant an opportunity to provide further evidence to substantiate their claims. For example, if the applicant claims that the information is out of date, the decision maker should ask the applicant for evidence of the current position.

7.28 The material that an applicant needs to provide to support their claim will vary according to each case. If an applicant can produce a document that satisfies the request, they should do so. An agency should also search its own records or other sources to find any evidence supporting an applicant’s claims. The applicant’s opinion is not determinative; it is for the agency to be satisfied that the applicant’s claims are correct.

7.29 An agency or minister need not conduct a full, formal investigation into the matters that the applicant claims are incorrect or misleading. A reasonable investigation that allows the agency or minister to be satisfied on the balance of probabilities that the applicant's claims are correct or incorrect, justified or not justified will be sufficient.

7.30 Agencies should give applicants reasonable assistance if it seems that they have not pursued all likely avenues for obtaining evidence. This may require the agency to notify the applicant of the supporting material it requires and where this information may be obtained. Furthermore, applicants should be given a reasonable opportunity to comment on any adverse inferences drawn when the authenticity or relevance of the material they provide is assessed.

Assessing the evidence

7.31 In assessing what weight to give to evidentiary documents, the decision maker should consider the circumstances in which the information was first provided. This is particularly important where the applicant has no documents to support their application for amendment other than a statutory declaration stating their case. For example, incorrect information may have been placed in a record because the applicant or others (such as parents or relatives) misunderstood the questions they were asked, or made an error in supplying the information. Alternatively, the person collecting the information may have made a mistake, such as an error in translation, miscalculation of a date of birth or misspelling of a name.

7.32 It can be difficult to establish the authenticity of documents provided in support of an application for an amendment. It may be unrealistic to insist on presentation of originals, as they are often unobtainable. How far an agency goes to check a document’s authenticity depends on how relevant it is to establishing the applicant’s claims. Where a document is crucial and its authenticity is in doubt, the decision maker should seek the help of their agency fraud prevention services if available. If doubt remains about a document’s authenticity, it may be preferable to annotate rather than amend the record.

Consequences of amendment

7.33 Sometimes an amendment to a record could have flow-on legal effects. For example, if an applicant has previously provided incorrect information in a visa application and the information is amended, the visa could be cancelled under the Migration Act 1958. If the agency or minister is aware of such possibilities, they should draw them to the applicant’s attention. An agency or minister should also make the applicant aware that the amended information will be used in their future dealings. However, in giving such advice, the agency or minister should be careful to avoid appearing to dissuade an applicant from exercising their right to seek amendment. At the same time, an agency or minister is not obliged to represent the applicant’s interests. The object is to ensure as far as possible that an applicant can make an informed decision.

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Recording and notifying an amendment decision

7.34 An agency or minister who agrees with an applicant’s request may decide to change the record as requested (see paragraphs 7.39–7.50 below). It is good practice to note on the relevant file, database or other appropriate place why the decision was made to amend the information, so that the reasons are clear to those who later use the information.

Notifying the applicant

7.35 Where an agency or minister decides not to amend the record, they must give the applicant written notice of the decision. The notification should set out what evidence (for and against the request) the decision maker examined, the weighting given to the evidence and the reasons for refusal. The notification must also include information about the applicant's review rights and right to complain to the Information Commissioner about how the request was handled (s 26 as applied by s 51D(3)). For further guidance on writing notifications, see Part 8 of these Guidelines.

7.36 The agency or minister has the onus of justifying the decision if it is reviewed by the Information Commissioner (s 55D(1)). The agency or minister need not prove the information was correct, but must establish that the Information Commissioner should affirm the decision or give a decision that is adverse to the applicant.

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Implementing a decision to amend the record

Where an agency or minister decides to amend a record in response to a request, all relevant active records must be amended in whatever form those records are kept. It may be that only a central record, such as a database containing client details, need be amended rather than all related records. The records may be amended by correcting or updating them or by adding new information to make the record complete.

7.38 Care must be taken, however, to preserve the integrity of the record. Agencies and ministers should remember that the information being amended still has value as an historical record, and therefore should be retained as far as possible. Section 50(3) requires an agency or minister when making an amendment to ensure, as far as practicable, that the amendment does not obliterate the text of the record as it existed. Removing or destroying part of a record would prejudice the record’s integrity as an account of the information originally supplied, a record which may still be needed to explain an action taken on the basis of the original information. If this is not possible, a decision maker should keep a careful account of any changes made, cross-referencing to the file or database that contains the record of the amendment decision.

Amending paper records

7.39 The FOI Act does not specify how records are to be amended. Each agency can therefore adopt the procedure best suited to its record keeping practices.

7.40 The Information Commissioner suggests that information on a paper document be corrected by ruling through the incorrect information and writing the correct information next to it, above or below it. Include explanatory words such as: 'Amended on (insert date) under s 50 of the FOI Act', and cross-reference it to the amendment by adding the words 'see folio (x) of file (x)'. If there are a large number of amendments, it would be useful to pre-print stickers with the appropriate wording.

7.41 Additional or updated information can be recorded in a similar way with the words.: 'Additional information provided under s 48 of the FOI Act on [insert date]' or 'updated under the FOI Act on (insert date)'. The date of amendment must always be recorded. The notation could refer to s 51 (where a prior application for amendment was unsuccessful) or s 51B (where an application for annotation is made under s 48 without first seeking amendment).

7.42 A note that merely states the applicant’s views without making a finding on the accuracy of the information the agency or minister holds is insufficient to constitute an amendment for the purposes of the FOI Act (see paragraph 7.27 above).

7.43 Where information cannot be amended on the document or in the database, the folio(s) or record(s) which contains this information should clearly cross-reference to the relevant file containing the correct information.

Amending electronic and other records

7.44 Non-paper records (for example, computer data and microfilm) should be amended where possible. As with paper records, where information cannot be altered on the document or in the database, the folio(s) or record(s) which contain this information should be clearly cross-referenced to the relevant place where the correct information is held.

7.45 Although information should be amended in a way that does not obliterate the original text of the record (see paragraph 7.38), this may not always be possible with electronic records. Agencies should consult their systems administrators or record managers for guidance on amending or annotating electronic records.

7.46 A person can apply at any time for an annotation to a record. They do not have to apply for an amendment to the record first (s 48(d)).

7.47 Where an agency or minister has declined to amend a record either wholly or partly in accordance with a request, the applicant must be given an opportunity to submit a statement seeking annotation of the record that they claim is incorrect, incomplete, out of date or misleading (s 51(1)). Section 51A(c) (discussed at paragraph 7.22 above) sets out the matters that an applicant needs to include in their submission.

7.48 The general rule is that an agency or minister must annotate a record as requested, as annotation, unlike amendment, is not discretionary. However, agencies or ministers are not obliged to annotate a record if they consider the applicant’s statement is irrelevant, defamatory or unnecessarily voluminous (s 51(2)).

7.49 Annotation is effected by adding the applicant’s statement to the record, cross-indexed to the material claimed to be incorrect, incomplete, out of date or misleading. It does not entail changing the record itself.

7.50 The Information Commissioner encourages agencies to ensure that the existence of an annotation is clearly displayed on the cover of the applicant's active paper files and flagged on electronic files such as a central customer database. This will assist future users of the records by drawing their attention to the information the applicant has supplied.

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Other procedural matters

Transfer of amendment or annotation applications

7.51 An agency or minister may transfer an amendment or annotation application to another agency or minister who holds the documents requiring amendment or annotation or where the relevant documents contain subject matter which is more closely related to the other agency’s or minister’s functions (s 51C).

7.52 The receiving agency or minister must agree to accept the transfer. The Information Commissioner expects agencies and ministers will agree, unless there are exceptional circumstances. For further information on transfers see Part 3 of these Guidelines.

Mandatory transfer of documents from exempt agencies

7.53 Certain agencies or persons are wholly exempt from the FOI Act or partly exempt in respect of particular types of documents, as set out in Schedule 2. Documents which originate from one of those agencies or persons and which are more closely connected with their functions, must be transferred to:

  • the responsible portfolio department where the body or person is a wholly exempt agency listed in Part I of Schedule 2 (s 51C(2))
  • the agency where the agency is exempt in respect of particular types of documents, as specified in Part II of Schedule 2 (s 51C(3)).

7.54 Part I of Schedule 2 lists agencies and those parts of the Department of Defence that are exempt from the operation of the FOI Act in respect of all documents in their possession. These agencies are principally intelligence agencies and agencies which compete on the open market with their private sector counterparts. Part II of Schedule 2 lists agencies that are exempt from the operation of the FOI Act in respect of specified types of documents, but are subject to the FOI Act in respect of all other documents.

7.55 Because transfers to Schedule 2 agencies are mandatory, agencies and ministers should carefully examine the documents connected with an application for amendment or annotation early in the assessment process to ensure that they do not overlook any documents requiring transfer.

Notification of transfer

7.56 An agency or minister who transfers a request must advise the applicant (s 51C(5)(a)). The transferred request is treated as having been made to the receiving agency or minister (s 51C(6)). Transferring a request does not extend the processing period, which remains at 30 days from the date the application was received by the first agency or minister (s 51C(6)(b)).

7.57 An agency or minister who accepts a transfer of a request and decides to amend or annotate a record must notify the transferring agency or minister of the decision and the amendments or annotations made (s 51C(7)). The transferring agency or minister receiving such a notice must in turn amend or annotate any relevant documents they hold in the same way (s 51C(8)).

Time limits

7.58 A decision must be made and notified as soon as practicable but not later than 30 days from the day after the request for amendment or annotation was received (s 51D(1)). Failure to comply with the time limit will result in a deemed refusal (s 51DA(2)). A deemed refusal is reviewable by the Information Commissioner (s 54L).

7.59 The provisions in Part III of the FOI Act for extending the processing period for access requests do not apply to requests for amendment or annotation. However, an agency or minister may apply to the Information Commissioner in writing for an extension of the processing period after the initial period has expired (s 51DA(3)). An agency or minister can also seek the applicant's informal agreement to an extension of time. If the applicant agrees to an extension the agreement will not be binding (unlike an agreement with an applicant on an access request under s 15AA). The applicant is entitled to treat the agency’s failure to decide within the 30 days as a deemed refusal under s 51DA(1)–(2) and to apply for review by the Information Commissioner (see Part 10 of these Guidelines). However, the applicant's prior agreement is a factor that the Information Commissioner would take into account in deciding whether to give the agency an extension of time under s 51DA(3).

7.60 The Information Commissioner considers that an agency should not normally seek an applicant's agreement to an extension of time longer than 30 days. If the agency believes a longer extension will be needed, it would be more appropriate to apply for an extension under s 51DA(3). The Information Commissioner may grant a period of extension that the Commissioner considers appropriate (s 51DA(4)). The Information Commissioner may also impose any conditions the Commissioner considers appropriate (s 51DA(5)). If the agency or minister fails to make a decision within the extended period or to comply with a condition, the decision is treated as a deemed refusal at the end of the extended period (s 51DA(7)).

7.61 All references to 'days' in Part V of the FOI Act are to calendar days, not business (working) days. The processing time starts from the day after the agency or minister receives the request. The following table sets out the time of receipt.

Time of receipt
Mode of delivery Time of receipt

Post

The time at which the letter would be delivered in the ordinary course of post[3]

Over the counter at agency’s or minister’s office

Date of receipt stamped on request

Email

Date the email enters the agency’s or minister’s system designated to receive email.

7.62 Section 14 of the Electronic Transactions Act 1999 provides that an email or similar electronic communication is received at the time the email enters the agency’s information system designated for the receipt of electronic communications. This rule may be varied by agreement between the sender (the applicant) and the addressee (the agency or minister). The Information Commissioner considers that this requirement would only be satisfied by a conscious agreement following negotiation between the parties. A unilateral statement on the agency’s or minister’s website or an automated email response that the applicant cannot refuse would not constitute an agreement for the purposes of s 14. Consequently, it is possible that the 30 day processing period may start on a weekend or public holiday.

7.63 As noted above at paragraphs 7.59–7.60, an agency or minister can seek an extension of time from the Information Commissioner if the initial 30-day period has expired (s 51DA(3)). In deciding whether to allow an extension of processing time, the Information Commissioner will take into account any non-working days falling within the original period.

7.64 Processing a request for amendment can take a long time if the material is complex or the authenticity of claims or evidence needs to be verified. If it appears that more than 30 days may be necessary, the agency or minister should advise the applicant of the expected delay and their intention to apply to the Information Commissioner for an extension of time.

Authorised decision making

7.65 Like access decisions under Part III of the FOI Act, all decisions on the amendment of records held by agencies must be made by the responsible minister, the principal officer of the agency or persons authorised under s 23 of the Act to make those decisions (see Part 8 of these Guidelines).

7.66 Requests made to ministers are treated differently. Section 23 does not provide for a minister to authorise decision makers. In practice, however, it is open to a minister to authorise a staff member in the minister’s office or the responsible portfolio department to act on the minister’s behalf. The Information Commissioner suggests that it would be prudent for such arrangements to be in writing. A decision maker in these circumstances will be acting as an agent of the minister and the decision will be regarded as a decision of the minister.

Charges

7.67 There are no charges for processing applications for amendment or annotation of records because they concern the applicant’s own personal information (reg 5 Charges Regulations). For further guidance on charges see Part 4 of these guidelines.

Comments on annotations

7.68 An agency or minister must attach a requested annotation to an applicant’s document or file unless the annotation is irrelevant, defamatory or unnecessarily voluminous.

7.69 Section 51E provides that the agency or minister may also attach their own comments to an annotation under ss 51 or 51B. This would be appropriate if the annotation is complex or requires further explanation. Adding a relevant comment will help to ensure that the record presents a comprehensive picture to later readers who may not be aware of the circumstances leading to the annotation.

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Reviews and complaints

7.70 A decision maker must advise the applicant of their review rights in the statement of reasons if a request for amendment or annotation is refused (see paragraph 7.35 above). Review rights include internal review and IC review. A complaint can also be made to the Information Commissioner about the handling of a request.

7.71 Further guidance on the review and complaint processes, including AAT review of IC review decisions, is in Parts 9, 10 and 11 of these guidelines.

7.72 A person may also complain to the Information Commissioner under the Privacy Act.

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Footnotes

[1] Acts Interpretation Act, s 29.

[2] See www.dpmc.gov.au

[3] This reflects the policy decision not to review Part V of the FOI Act as part of the 2010 reforms (apart from by adding IC review provisions) because Part V will be reviewed separately in accordance with the recommendations of the ALRC Report (see paragraph 7.2 above).

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