A person can apply under the Freedom of Information Act 1982 (FOI Act) for amendment or annotation of their personal information held in agency records or in the official documents of a minister.
This material aims to help decision makers to process requests for amendment or annotation of personal records. You should refer to the FOI Guidelines for full details: Part 7 (Amendment and annotation of personal records).
Processing a request to amend or annotate personal records
Flow chart A sets out the key steps in processing a request for amendment or annotation.
Flow chart A
Preliminary inquiries: Application meets requirements and lawful access
Make sure that the application meets the formal requirements in s 49 (amendment) or s 51A (annotation). Consult the applicant if anything is unclear.
Check that the applicant has had lawful access to the documents to be amended or annotated (under the FOI Act or otherwise) (s 48).
Identify and gather relevant documents
Identify and gather relevant agency documents and other relevant material, including any material the applicant supplied in support of their claim.
Consider transfer
If relevant documents are not held by your agency but are held by (and more closely connected with) another agency or minister, consider whether you should transfer the request (s 51C). Some transfers are mandatory (including where the document originated from a defence intelligence agency).
Consult the other agency as soon as you consider transfer is a possibility – processing time does not stop.
Analyse documents and evidence
Analyse the agency documents that you have collected.
- Do the documents contain the applicant’s personal information? Records that do not contain personal information cannot be amended under the FOI Act.
Analyse the evidence that the applicant supplied.
- Was the evidence not available at the time of making the original record?
- Does the authenticity of the document need to be verified?
Assess evidence
Assess the evidence (including the original records) and form your view on whether, and how strongly, it supports the requested amendment or annotation. Consider the following:
- What supporting documentation was originally provided?
- What new documentation has been provided?
- Do differences that emerge from the documents support the applicant’s claims?
- How old is the document the applicant wants amended or annotated? Is it still used for an administrative purpose?
- If the document is still used for an administrative purpose, amendment could be justified.
- Archived documents that are no longer used for an administrative purpose should be annotated rather than amended.
- How did the agency first obtain the documents or information that the applicant is seeking to change? How reliable was the source?
- Can the authorities that issued the original documents be consulted to check the authenticity of the documents or the applicant's account of events?
- Will changing the person's details have consequences for that person’s further dealings with the agency or another agency? If so, consult the applicant.
Amending a fact: If considering whether to correct a particular fact, consider the following:
- Was the recorded fact correct at the time it was supplied?
- Has a change in circumstances or the passage of time affected the accuracy of the record?
- Has the document containing the record been previously amended or annotated to reflect relevant changes through time? If yes, it is arguable that the record is not incorrect, misleading or out of date.
Amending an opinion: If considering whether to correct an opinion, take particular care. The applicant's disagreement with an opinion does not necessarily make it incorrect, misleading or out of date. Consider the following:
- Was the recorded fact correct at the time it was supplied?
- What evidence has the applicant produced in support of the claim?
- Was the opinion correct at the time it was supplied?
- How was the opinion originally reached and did the decision maker take into account, as far as you can tell, all of the available facts?
- Can you contact the author of the opinion to discuss whether they considered all of the relevant facts?
- Does the opinion seem to relate reasonably to the facts available at the time it was formed? Are these facts still convincing in current circumstances or do they suggest a different opinion might be formed?
Decide
Make your decision within 30 days.
Decision to amend or annotate
Take all reasonable steps to notify the applicant of your decision within 30 days after the day the request was received.
Decision refusing to amend
If you refuse to amend either in whole or in part, or refuse to annotate, notify the applicant in writing of your decision in accordance with s 26. Include information about the applicant’s review rights. (For guidance on writing notices, see Part 3 of the FOI Guidelines and Statement of reasons checklist). Consider annotation – see below.
Consider annotation
If you refuse to amend either in whole or in part, you must give the applicant an opportunity to submit a statement seeking annotation of the record (s 51) (see Flow chart B below).
No decision/deemed refusal
If you do not notify the applicant of your decision within 30 days, your decision will be taken as a deemed refusal. No extension of time is available unless the Information Commissioner allows further time under s 51DA.
Internal review or IC review
If you decide not to amend or annotate a document as requested or fail to notify your decision within 30 days, the applicant may seek internal review and/or IC review of your actual decision or deemed refusal.
Processing a request to annotate personal records following a decision to refuse to amend
Flow chart B sets out the steps to process a request to annotate personal records if you have refused to amend the records.
Flow chart B
Applicant given the opportunity to provide a statement
If you are refusing to amend a document either in whole or part, you must allow the applicant an opportunity to provide a statement that contains the following:
- the information that they claim to be incomplete, incorrect, out of date or misleading
- which of those categories applies to the information
- their reasons for making the claim
- any other information which would make the information in question complete, correct, up to date or not misleading.
Applicant provides a statement
If the applicant provides a statement, the statement must meet the requirements of an application for annotation under s 51A.
Decide
Take all reasonable steps to notify the applicant of your decision within 30 days after the day the request was received. You must annotate the document containing the personal information in question, unless the statement is irrelevant, defamatory or unnecessarily voluminous (s 51B).
Consider whether you should add comments to the annotation (such as where the matter is complex) (s 51E).
No decision or decision not to annotate a document: internal review or IC review
If you decide not to annotate a document as requested or fail to make a decision, the applicant may seek internal review and/or IC review of your decision.
