Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: ABA v Department of Human Services, Community Services [2012] NSWADT 117
• Hearing dates: 16 November 2011
• Decision date: 15 June 2012
• Jurisdiction: General Division
• Before: S Montgomery, Judicial Member

Decision

1.The Respondent is to file and serve any further submissions in relation to the proposed amendments to the record within 14 days of the date of these reasons.

2.The matter is listed for a further planning meeting in relation to any issues arising in relation to the proposed amendments at 11.30 a.m. on Tuesday 3 July 2012.

• Catchwords: Privacy - information protection principle - personal information - accuracy - use
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Privacy and Personal Information Protection Act 1998
• Cases Cited: ABA v Commissioner of Police, NSW Police Force [2012] NSWADT 90; Crewdson v Central Sydney AHS [2002] NSWCA 345; Department of Education and Training v GA (No.3) [2004] NSWADTAP 50; Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44; GA v University of Sydney [2010] NSWADTAP 31; JD v Department of Health (GD) [2005] NSWADTAP; KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18; OS v Mudgee Shire Council [2009] NSWADT 315; S v Director General, Department of Community Services [2000] NSWADTAP 27; WL v Randwick City Council [2007] NSWADTAP 58
• Category: Principal judgment
• Parties: ABA (Applicant); Department of Human Services, Community Services (Respondent)
• Representation: ABA (Applicant in person); B Bartley, (Respondent)
• File Number(s): 113096

REasons for decision

1 GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): In these reasons the names of several private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as ABA. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.

2 ABA has applied to the Tribunal for review of a decision of the Respondent concerning alleged breaches of the Privacy and Personal Information Protection Act 1998 ("PPIP Act").

3 ABA made two applications to the Respondent under section 53 of the PPIP Act for an internal review of the Respondent's conduct. The first of those applications ("the first application") is dated 13 January 2011. The second ("the second application") is dated 14 January 2011.

The Respondent's Internal Review

4 At the time that ABA lodged the application with the Tribunal, the Respondent had not determined the internal review requests. The 60-day period provided for by section 53(6) of the PPIP Act had passed.

5 An internal review was ultimately conducted in relation to each of the requests. Ms Jann Rowe, the Respondent's Privacy Contact Officer, completed the internal review in relation to the first application on 10 May 2011. Ms Rowe completed the internal review in relation to the second application on 20 May 2011.

Background

6 In Ms Rowe's 10 May 2011 determination she provided a reasonable summary of the background to ABA's internal review requests. As will become apparent, ABA disputes the accuracy of some of the Respondent's records but I do not understand that there is significant dispute in regard to the chronology of events. In her 10 May 2011 determination Ms Rowe wrote:

3. Background

· [ABA] is the father of 2 children, [A] and [B]. Both boys have Fragile-X syndrome, developmental delays and autism.

· In June 2008 the parents sought assistance from DoCS. The request was allocated and information sought from ADHC, Community Health and Community Programs Inc. It was closed on 13 October 2008 with the following comment: "Currently the services that are being provided by DADHC [the Department of Aging, Disability and Home Care] and Community Programs are reasonable, regular and consistent. [ABA's family] have access to speech therapy, a DADHC psychologist, respite care and are engaged with the school. There is also an allocated case manager with DADHC to oversee continuity of service."

· On 21 October 2008 a joint Police and Community Services investigation commenced following an assault on [A] on 20 October 2008. [A]'s grandfather was subsequently convicted of the assault. As a result of the assault an AVO prevented the children from having contact with the grandparents unless the contact was supervised by someone other than [ABA].

· As part of the child protection side of the investigation, Community Services collected information from DADHC about the family's situation. [ABA]'s request for services from Community Services to help manage the boys' disabilities in that context was not met with a positive response. Community Services formed the view that DADHC and DET were the primary service providers and would continue to be so, even if [ABA's family] moved to the Central Coast.

· [ABA] made a FOI application and his privacy complaint is based on his recollections and interpretations of facts which differ from Community Services and Police records.

· [ABA] disputes the basis on which the decision not to provide services was made, arguing that Community Services has erroneously, dishonestly and corruptly recorded what it was told by DADHC.

· [ABA] holds the view that requests for assistance or reports for child protection assistance should always be met because of the International Convention on the Rights of the Disabled.

· In the KIDS [Key Information and Directory System] records and other file documents reference is made to services being provided or funded by DADHC which [ABA] says were never provided.

· The file notes record caseworker understandings and opinions about the situation following contact with relevant DADHC staff. [ABA] says the caseworkers were not mistaken but dishonest and corrupt in that they deliberately falsified the records.

· DADHC had primary case responsibility for providing services to the family to manage the boys' disabilities, not Community Services, apart from the JIRT [Joint Investigation and Response Team] investigation.

...

· On 26 March 2010 [ABA] made 5 applications for amendments to his personal information under the Freedom of Information Act 1989 (FOI Act). The applications were refused on 27 May 2010.

· On 12 April 2010 [ABA] made an application for an additional amendment which was refused on 28 May 2010.

· [ABA] requested an Internal Review of the decisions and the FOI Internal Reviewer made determinations. No records were altered, but in some instances [ABA] was asked to provide evidence of his contentions and further consideration would be given to making amendments.

... Some of the requested amendments under PPIP Act currently under determination were made under the FOI Act in 2010.

...

. At a subsequent meeting between [ABA], [and two departmental officers] agreement was reached whereby the file would be appended with [ABA]'s views and documents.

. These changes are reflected on the file and in KIDS.

7 The Children and Young Person's (Care and Protection) Act 1998 sets out the grounds for reporting suspected risk of harm regarding a child or young person. Joint Investigation by Community Services child protection caseworkers and Police Officers occurs when there is a possibility that the abuse constitutes a criminal offence. A JIRT program is delivered by three equal partners who provide services to children:

• · NSW Health,
• · NSW Police and
• · Community Services.

8 In Ms Rowe's 20 May 2011 determination she provided additional background details in relation to ABA's internal review requests. Ms Rowe wrote:

· On 12 June 2008 [ABA and his wife] made a request for assistance from Community Services. They reported they were frustrated by their lack of access to support services and received none/little support from Ageing Disability and Home Care (ADHC). They stated they could not access speech therapy or occupational therapy and could not afford to travel to Coffs Harbour any more for the private speech therapy they have been accessing...and they are concerned also they are no longer able to carry on themselves with the Applied Behavioural Analysis (ABA) Therapy recommended by Westmead Children's Hospital.

· On 18 October 2008 when enquiries were completed the case was closed as ADHC reported that supports and services were in place. Those services were considered by Community Services to be adequate. The existence of the services was used in mitigation in weighing up whether the matter would be allocated for a child protection response.

· The case closure summary reads: "Currently the services that are being provided by ADHC and Community Programs are reasonable, regular and consistent. [ABA's family] have access to speech therapy, an ADHC psychologist, respite care and are engaged with the school. There is also an allocated case manager with ADHC to oversee continuity of service."

· On 20 October 2008 [A] was assaulted by his grandfather and the grandfather was convicted following a JIRT investigation.

· On 3 October 2009 [ABA] complained to ICAC about the JIRT, Police and Community Services interventions. ICAC referred the complaint to the Ombudsman, who in turn referred it on to the Police to deal with the complaints about the Police officers' conduct.

· After the Police matter was resolved [ABA] agreed to the complaint being referred to Community Services in May 2010 [ABA] complained that the child protection response by JIRT was not in the children's interests and his requests for assistance from Community Services should have met with a positive response.

· The Chief Executive's letter dated 7 September 2010 was the Community Services response to the complaint.

· The Community Services response dealt with the matter as it stood in October 2008, reiterated the reasoning undertaken and the explanation given then about why the matter was not allocated for a child protection response. The decision was that adequate supports and services were in place and it was appropriate that ADHC provide the services to manage the children's behaviour, as it was not a Community Services responsibility to fund disability services gaps.

· After the s. 15 PPIP Act determination made in the internal review dated 10 May 2011, the amended case summary dated 18 October 2008 reads: "Currently the services that are being provided by ADHC and Community Programs are reasonable, regular and consistent. [ABA's family] will have access to speech therapy, have had access to an ADHC psychologist, have access to respite care and are engaged with the school. There is also an allocated case manager with ADHC to oversee continuity of service."

The Internal Review Applications

9 In the first application ABA requested:

"I would like to request DoCS abide by Section 15(1) of the Privacy and Personal Information Protection Act 1998

15 Alteration of personal information

(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:

(a) is accurate, and

(b) having regard to the purpose for which the information was collected (or is to he used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

I am therefore making a Section 20 request that you do so. The information referred to is that:

Appendix 1

1. There was a 24 hr psychologist available for our family to access

2. Speech Therapy was supplied and funded by DADHC

3. The issue with non-provision of appropriate services was recorded as being the family rather than the services (as required by the Disability Act).

4. Claims that behaviour therapies were not available to the children when they had been having them for over a year.

Appendix 2

5. The services claimed above were available but access was refused by the family

6. Therapeutic services were provided by the Salvation Army

7. That [ABA] did not engage with police or DoCS staff

8. Claims that "[ABA] believes that he will wake up one morning and find his children to be normal".

On several occasions DoCS have been informed that the information held is incorrect and misleading and without basis. For example the claim that a 24 psychologist was available has been refuted at least twice by me AND twice by DADHC.

As yet DoCS refuses to abide by Section 15(1) of the Act.

I ask that the information be amended (by way of corrections, deletion or additions) to ensure that it is (a) accurate and (b) relevant, up to date, complete and not misleading."

10 In the second application ABA requested:

"I would like to request DoCS abide by Section 16 of the Privacy and Personal Information Protection Act 1998

...

I refer to Appendix 1 where Annette Gallard [the Respondent's then CEO] claims

"I understand that you and your wife met with local Community Services Centre on 12 June 2008 and discussed your family's needs. I am advised that Community Services Staff subsequently had contact with the Department of Aging, Disability and Home Care (ADHC) and NSW Health. It was determined that you were in receipt of various supports and services though ADHC ..."

I note that since the complaint contradicted this Annette Gallard had the responsibility to check accuracy of personal information before use to ensure that the information was ... relevant, accurate, up to date, complete and not misleading under the law.

DoCS has been informed by ADHC and myself on several occasions in writing that the services that were claimed to be in place were in fact not there. This was both prior to and during the complaints process. Indeed Annette Gallard hints of some of this correspondence in her letter by referring to the Freedom of Information action. Despite this she appears to have made no attempt to check the accuracy of the information she had been told about the services that were claimed to be there as required by Section 16 of the Privacy and Personal Information Protection Act.

Given that the data was disputed by several external sources, including the agency that was claimed to originally provide the data, and in the complaint itself, Annette Gallard had the responsibility to check the validity of the data she was using in replying to the complaint. Even if she was still unsure of the accuracy of the data she should have contacted ADHC under Section 17(b) to ensure the data are correct.

I ask for an internal review under Section 53 of the Privacy and Personal Information Protection Act into the use of information by Annette Gallard without adequately checking that "the information is relevant, accurate, up to date, complete and not misleading".

11 Notwithstanding the references to sections 15 and 16 of the PPIP Act in ABA's request for an internal review of the Respondent's conduct, ABA's applications to the Tribunal alleged contraventions of sections 15, 16, 17 and 20 of the PPIP Act and of the PPIP Act's Information Protection Principles ("IPPs") 3, 4, 8 and 9 set out in Division 1 of Part 2 of the PPIP Act.

Applicable legislation

12 IPP 3, contained in section 10 of the PPIP Act provides:

10 Requirements when collecting personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:

(a) the fact that the information is being collected,

(b) the purposes for which the information is being collected,

(c) the intended recipients of the information,

(d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e) the existence of any right of access to, and correction of, the information,

(f) the name and address of the agency that is collecting the information and the agency that is to hold the information.

13 IPP 4, contained in section 11 of the PPIP Act provides:

11 Other requirements relating to collection of personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:

(a) the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and

(b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

14 IPP 8, contained in section 15 of the PPIP Act provides:

15 Alteration of personal information

(1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:

(a) is accurate, and

(b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading.

(2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought.

(3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency.

(4) This section, and any provision of a privacy code of practice that relates to the requirements set out in this section, apply to public sector agencies despite section 25 of this Act and section 21 of the State Records Act 1998 .

(5) The Privacy Commissioner's guidelines under section 36 may make provision for or with respect to requests under this section, including the way in which such a request should be made and the time within which such a request should be dealt with.

(6) In this section (and in any other provision of this Act in connection with the operation of this section), "public sector agency" includes a Minister and a Minister's personal staff.

15 IPP 9, contained in section 16 of the PPIP Act provides:

16 Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

16 IPP 10, contained in section 17 of the PPIP Act provides:

17 Limits on use of personal information

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

(a) the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

17 Section 20 of the PPIP Act provides:

20 General application of information protection principles to public sector agencies

(1) The information protection principles apply to public sector agencies.

(2) The application of the principles to public sector agencies:

(a) may be modified by privacy codes of practice, and

(b) is otherwise subject to this Act.

(3) Sections 8-11 do not apply in respect of personal information collected by a public sector agency before the commencement of this Part.

(5) Without limiting the generality of section 5, the provisions of the Government Information (Public Access) Act 2009 that impose conditions or limitations (however expressed) with respect to any matter referred to in section 13, 14 or 15 are not affected by this Act, and those provisions continue to apply in relation to any such matter as if those provisions were part of this Act.

18 Section 53 of the PPIP Act provides:

53 Internal review by public sector agencies

(1) A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information).

Note: Any such conduct can still be reviewed by the Tribunal. See section 55 (1A).

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee or officer of the agency, and

(c) who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:

(a) the applicant, and

(b) the Privacy Commissioner.

(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.

(7) Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following:

(a) take no further action on the matter,

(b) make a formal apology to the applicant,

(c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant),

(d) provide undertakings that the conduct will not occur again,

(e) implement administrative measures to ensure that the conduct will not occur again.

(7A) A public sector agency may not pay monetary compensation under subsection (7) if:

(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and

(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and

(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.

(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:

(a) the findings of the review (and the reasons for those findings), and

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal.

19 Section 55 of the PPIP Act provides:

55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(1A) A person ("the applicant") who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Tribunal for a review of the conduct.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

...

The nature of the Tribunal's review of conduct

20 The Tribunal's task on reviewing conduct is not one in which the Tribunal reviews the decision made on internal review, either on a merits review or error of law basis. Rather, the Tribunal again reviews the conduct that was the subject of the internal review request. In JD v Department of Health (GD) [2005] NSWADTAP 44 the Appeal Panel explained -

"We note that at para [63] of its reasons, the Tribunal saw its role as to 'review the decision' of the agency as reflected in its internal review report, and then to make the 'correct and preferable' decision in relation to the matter. This is not correct. The Tribunal is clearly not engaged in the review of a reviewable decision. What occurs in this area is that the agency makes an original decision on the action it will take or not take in relation to the complaint. Then the Tribunal makes an original decision going to the same matter, taking account of the agency's report. What occurs is a second external review of the administrative actions or 'conduct' of the agency. The process is one that is connected conceptually to the administrative law theory that underpins a Tribunal of this kind when dealing with cases involving citizens and government, in that it involves the 'review' of a species of administrative action being 'conduct' rather than a 'decision'."

21 A review of conduct under the PPIP Act is not at large. It is confined in its scope by the initial request for internal review, reasonably construed: Department of Education and Training v GA (No.3) [2004] NSWADTAP 50, KO & KP v Commissioner of Police, New South Wales Police [2005] NSWADT 18 and Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44. This is so as section 55 of the PPIP Act allows an applicant to seek review of 'the conduct that was the subject of the application [for internal review] under section 53,' not other conduct.

22 There are many matters, which ABA wished to traverse in the course of the hearing that I consider are irrelevant to the Tribunal's task on a review of conduct. These matters were either in relation to conduct that was not the subject of either of his internal review applications or were an attempt by ABA to go beyond a review of his personal information. In this regard I agree with the Respondent's submission that ABA is attempting to use the Tribunal to air his wide dissatisfaction with the Respondent and the merits of some decisions made by the Respondent. Actions aimed at achieving such remedies should be pursued in other forums: GA v University of Sydney [2010] NSWADTAP 31 at paragraph [19].

Internal review findings in relation to the first application

23 In her 10 May 2011 determination Ms Rowe wrote:

The application of the IPP to [ABA]'s request for amendments is addressed under the findings. I have used [ABA]'s correspondence in relation to his FOI applications and the file review undertaken by Ms Braye as similar issues were raised there and in the current application. The onus of proof and relevant cases are also addressed under the relevant findings.

5. Findings

As a general comment I note that cases in both the Commonwealth and NSW jurisdictions have made it clear that requests to amend records cannot be used to authorise or allow decisions of agencies to be changed, or for appeals against agencies' decisions to be made, under the guise of amending records.

I make this point to make it clear to [ABA] that the Community Services decision in 2008 not to allocate resources or services to the family to help them manage the boys' disabilities and behaviours is not under review nor will it be under review even if my findings are referred by [ABA] to the ADT for review. In Crewdson v Central Sydney AHS [2002] NSWCA 345, the appeal Judge said "the use of the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected. ...The Act is concerned with the accuracy of official records, not the merits or legality of the official action recorded in them."

As this application is being considered under s. 15 PPIP Act I sought guidance from Privacy NSW (PNSW) as to any guidelines issued under s. 36 PPIP Act. PNSW informed me that there are no formal guidelines under s. 36 PPIP Act, but some guidelines do exist under HRIP Act.

I note that those guidelines suggest the internal reviewer can refuse to amend the information if satisfied that the information is not incorrect or the request contains information that is incorrect or misleading. The guidelines do not mention whether the onus of proof is placed on the agency or the applicant. However, without the evidence from the applicant I cannot see how I can make a determination that the information is incorrect unless additional documentary evidence is found or I interview ADHC and Community Services staff involved in the process. I have decided when necessary to interview ADHC staff as well as Community Services staff, as they are all employees of the same department.

Amendments sought to Appendix 1

Amendment 1 "There was a 24 hr psychologist available for our family to access."

The statement enters the records on page 18. It records a conversation on 14 October 2008 between [ER] and [RM]. The record states that [RM] said there was a "DADHC psychologist on a 24 hour basis [italics added] and she has made numerous home visits and reports for the family."

On 21 October 2008 DoCS received written information about [ABA's family] following a request for information from DoCS under s. 248 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). The report was signed by [RM] and [MT] and outlined the psychology services provided by [HM]. No mention is made of 24 hour access.

In a letter dated 27 May 2010 [VP] asked [ABA] to provide information from ADHC to indicate that such a service was not available. I cannot find any record on the FOI file that [ABA] supplied any evidence.

In a letter dated 23 June 2010 from [JM] to [ABA], reference is made to a conversation [JM] had with [ER] about her recollection of what [RM] said to her about the 24 hour access. [ER] stated that she recalled [RM] mentioning [ABA] having access to [HM]'s mobile phone number.

[JM] offered to have [ER] write an additional file note to that effect, if [ABA] agreed. I cannot see from the FOI file that [ABA] replied to the suggestion.

I note that under the FOI Act, the onus of proof is on applicants who must "provide particulars of the matters which he or she contends are incomplete, incorrect, out of date or misleading. If the applicant does not produce supporting evidence when asked to do so, agencies would be justified in refusing to amend the record. The agency need only prove that the decision to refuse was justified on the basis of the evidence available to the decision-maker."

On 5 April 2011 I interviewed [HM], the ADHC psychologist who provided services to [ABA's family]. [HM] stated she did not have a work mobile phone while she was providing services to [ABA's family] and would not have provided her personal mobile number to [ABA or his wife]. I asked her on what occasions she would provide her mobile phone number to a client. She said that she would only supply her mobile number if it was a work phone and she knew she would be away from the office and was expecting to be called during that period. [HM] said she attended [ABA's family] home during her work hours (8.30 am to 4.30 pm) for their appointments and did not provide a service to either [ABA or his wife] outside those times.

On 14 May 2010 [RM] sent an e-mail to Deborah Missingham, and said that she believed the caseworker misunderstood what she said as she did not say that a 24 hour psychology service was provided by DADHC. I received a copy of that e-mail on 7 April 2011 from Valerie Appleby. I cannot find a copy of the e-mail on the FOI file but on the children's child protection file dated 18 June 2010 is a letter from [CW] indicating that the information in the file note about 24 hour psychology services is incorrect.

Finding in relation to amendment 1:

I find that [ABA's family] did not have out-of-hours access to psychology services as [HM] said she did not have a work mobile phone and did not give her private mobile number to [ABA or his wife].

In accordance with s. 15 (1)(a) I find the record on page 18 is incorrect and the words "on a 24 hour basis" should be ruled out and a notation added in the margin adjacent "deletion made following a determination of a s. 15 PPP Act amendment request J Rowe Privacy Contact Officer 9/5/11.

Amendment 2: "speech therapy was supplied and funded by DADHC."

This statement enters the record on page 18 during the same phone conversation referred to above: "[RM] stated that the family has recently commenced speech therapy with the Spastic Centre paid for by DADHC."

On 21 October 2008 DoCS received written information about [ABA's family] following a request for information from DoCS under s. 248 of the Care Act. The letter was signed by [RM] and [MT]. It says that: "Speech Pathology services commenced in July 2003. In November 2003, the parents again referred [A] for speech therapy ... through the local Child Development Service." There is no further mention of speech therapy services in the letter or its attachments.

The absence of information on the file is not sufficient evidence to require any amendment of the record. What is required is evidence that there was no factual basis to the information recorded there. In a relevant case in the Administrative Decisions Tribunal S v Director General, Department of Community Services [2000] NSWADTAP 27], the Tribunal said that the critical findings concerning an amendment ... "were as follows:

1. there was no factual basis on which the opinions expressed in the ...documents could have been validly formed

2. the opinions which were based on incorrect or non-existent facts are misleading..."

The most direct evidence about this matter could have been provided to [ABA] from either the ADHC [local] Office or the Spastic Centre. I am unable to seek information about [ABA's family] from the Spastic Centre without [ABA or his wife]'s consent. Although there was correspondence from ADHC about [ABA's family] and service provision received on 21 October 2008, I could find no reference to speech therapy services from the Spastic Centre. On 5 April 2011 I contacted the A/Regional Director Northern, ADHC for information. On 7 April 2011 Valerie Appleby advised that on "1 September 2008 [A] received a Spastic Centre placement under the 'Stronger Together' program for Speech Therapy." She also reported that as at 14 October 2008 the service had not commenced. I sought confirmation from her as to whether the placement was to be paid for by ADHC or the Spastic Centre. On 10 May 2011 I received the following information:

"They had been allocated therapy in Northern Region through the Cerebral Palsy Association (formerly Spastic Centre) which is funded by ADHC and this would not have cost them. However they did not commence therapy with the Spastic Centre due to the timing of the allocation and their re-location."

Finding in relation to amendment 2:

I find that [ABA's family] did receive a speech therapy service referral from the [local] office to the Spastic Centre in 2008, but those services had not commenced by 14 October 2008, the date of the file note.

In accordance with s. 15 (1) (a) I find the record on p18 is inaccurate. Consequently, the word commenced on line 6 from the bottom of the page should be ruled out and replaced with been referred for and a notation added in the margin adjacent "amendment made following a determination of a s. 15 PRP Act amendment request J Rowe PCO 9/5/11".

Amendment 3: "The issue with non provision of appropriate services was recorded as being the family rather than the services (as required by the Disability Act)."

I cannot find a statement which fits this description in Appendix 1. However, in relation to his FOI application to amend the records, [ABA] identifies a statement in the record on page 18 during the same phone conversation referred to above: "[RM] stated there has been an issue with [ABA] who is fixated on receiving a type of Behavioural Therapy for the children which is unavailable in the area."

In his FOI application [ABA] states that this statement is incorrect and misleading. "It is the right of the child to access appropriate services. Under the International Rights for the Disabled it is Incumbent on parties to provide appropriate interventions even in rural areas."

In correspondence to the FOI internal reviewer, [ABA] stated:

"My records should record the truth as the legislation requires that being:

"1. DoCS ignores medical reports and other professional advice when making decisions about the welfare of children.

2. DoCS records there is an issue with parents when the parents do not ignore professional medical advice just because DoCS workers want to ignore it.

3. DoCS records there being an issue with parents because DoCS do not want to support programs that benefit children.

4. DoCS ignores the human rights of children with disabilities

DoCS has an issue with fathers that want services with a proven track record of benefiting their children

DoCS has an issue with government continuing assistance with therapies after those therapies have been proven to encourage a good interaction between children and their fathers.

5. NSW government agencies conspire to retaliate, by withdrawing the little support provided to disabled children, if parents approach DoCS to request allied health services and programs recommended by experts."

The FOl internal reviewer decided that the sentence referred to as incorrect and misleading referred to "a type of 'Behavioural Therapy' rather than a range of services." The statement is included in the notes made by [ER]. The decision-maker confirmed with [ER] that the subject statement was her interpretation of what [RM] told her. She went on to say:

"Further the file records that Applied Behavioural Analysis (ABA) therapy was unavailable in [ABA]'s geographical area. The decision-maker noted that the file also included several e-mails from DADHC referring to [ABA] requesting ABA therapy for his sons.

The FOI internal reviewer found that the subject statement was not incorrect or misleading.

Finding in relation to amendment 3:

I concur with the decision set out above. The child protection file also contains an e-mail from [HM] to [RM] dated 15 July 2008 which states that ABA behaviour therapy, was requested but not funded by DADHC for provision to [ABA's family], but was provided by [ABA] himself after receiving advice from [HM] and the Fragile-X Clinic.

Amendment 4: "Claims that behaviour therapies were not available to the children when they had been having them for over a year."

As referred to above, the reference in the file note is not to any "behaviour therapies" but to the specific ABA therapy recommended by the Fragile-X Clinic about which provision [ABA] had lobbied to be funded and provided by DADHC.

On 18 June 2010 [CW] wrote to [MP] which recorded that: "an [ADHC] file review Indicates that [ABA] made contact with the DADHC office to express his concerns and that he and [his wife] also accessed supports and services independent of DADHC. These services included the ABA program which is appropriate for the children but not available directly by the DADHC psychologist who provided consultation on this program only."

Finding in relation to amendment 4:

I find that the reference on page 18 of the record refers to the ABA behaviour therapy not being paid for and provided by DADHC. I find the reference is not incorrect or misleading.

Amendments sought to Appendix 2- the case transfer form

Amendment 5: "The services claimed above were available but access was refused by the family"

The case transfer form enters the record on pages 179 & 180 of the record and is dated 18 November 2008. It was written by [BS] and countersigned by her manager [SF].

The form states: "[ABA] tries to access a wide range of services and feels that services need to do something and then he does not access the services. Services are available to the family however they do access. DADHC have provided all supports and therapeutic services available to them. [ABA] is resistant to services when they are available. ...

Services involved are: DADHC - community worker R Stapleton

Community Programs - in home respite - not accessed"

[ABA] stated in relation to his FOI internal review that: "The record is incorrect and misleading. It says that various services were available but not being accessed by [ABA]. No therapeutic service was refused since they were not there. DoCS wanted to cover their butts so made up false evidence to give police."

I interviewed [BS] on 12 April 2011 and she indicated that she had previously worked with [ABA's family] as a DADHC worker in 2003 and subsequently in her role as a Community Services caseworker in 2008. She stated her views about accessing services were mainly formed from her work with them in 2003. She said that in her view [ABA] thought the children should be able to access mainstream services which could be made accessible to them, rather than accessing services specifically for disabled children. She said in country areas particularly, such service expectations were unrealistic, in her view.

The file note written on 13 October 2008 records a conversation on 13 October 2008 between [ER] and [MT]. [MT] stated "he assisted the family to access respite care approximately 1 week ago." In the same file note, it records: "[RM] confirmed the family are engaged with DADHC. ... [RM] stated the family are also engaged with Community Programs. [RM] stated the family have access to the DADHC psychologist. ..."

On 18 June 2010 [CW] wrote a letter to [MP] which recorded that: "following a [ADHC] file review there is no indication that the family refused or did not access recommended services for either [B] or [A] at any stage. The review does not indicate that [ABA] was resistant to services offered to the family but that he did not believe that the services offered were adequate for the children. The review indicates that [ABA] made contact with the DADHC office to express his concerns and that [ABA and his wife] also accessed supports and services independent of DADHC. These services included the ABA program which is appropriate for the children but not available directly by the DADHC psychologist who provided consultation on this program only."

Finding in relation to amendment 5:

I find that aspects of [BS] case transfer form refers in part to her views formed in 2003 and does not take into account the material obtained in the phone calls dated 13 and 14 October 2008 nor the content of the material received on 21 October 2008 from DADHC.

Consequently in accordance with s. 15 (1) (b) the file transfer note is out of date and should be altered on line 12 to remove "and then he does not access the service." On the same line the word "however" should be replaced with "which". On line 14 and 15 the words "[ABA] is resistant to services when they are available" should be removed. On line 27 the word "not" should be removed before "accessed:

These changes are made to reflect content found in the file note dated 18 October 2008 which indicated respite was being accessed and that DADHC was fully involved in service delivery. As there is no evidence on the file that any services had been refused or not accessed after it was organised, I find those references to be incorrect. Although there is subsequent confirmation of this in the [CW] letter dated 18 June 2010, I find that it is not necessary to rely on it to make this determination. I also note that the [CW] letter was received after the date of the FOI internal review.

Amendment 6: "Therapeutic services were provided by the Salvation Army.

On page 179 [BS] records: "Services involved are: Salvation Army providing assistance with the family with therapeutic services." [ABA] states that this is incorrect - The Salvation Army never assisted with therapeutic services during the entire year - 2008."

He further comments that "DoCS wanted to make up bull about the adequacy of services and since they are allowed to lie they write anything they like."

The FOI decision-maker declined to amend the document as information about any service provision from the Salvation Army could not be found on the file, nor was any evidence provided by [ABA].

[ABA] in requesting the FOI Internal review pointed out where on p. 179 the comment was recorded.

The FOI internal review decision-maker was unable to find information on file about any service received by [ABA] from the Salvation Army other than the provision of a support person for meetings and the possibility of counselling In Gosford (p. 294). However she told [ABA] that the absence of information on the file is not sufficient evidence to require any amendment of the record.

She concluded: "Please provide a letter from the Salvation Army certifying any or all services you or your family received prior to 20 November 2008 and the dates when you received them. If the Salvation Army advises that you did not receive any therapeutics services prior to 20 November 2008 I will amend the last line on p.179 accordingly." l can find no information about this from [ABA] on the FOI file or the child protection file.

I interviewed [BS] on 12 April 2011. She states that the Salvation Army was providing assistance to [ABA's wife] to give swimming lessons to the children at the time of the assault. She also noted that a support person was provided for interviews.

Finding in relation to amendment 6:

I find that the Salvation Army was involved with service provision to [ABA's family] at the relevant time. Whether those services were therapeutic is the issue raised by [ABA]. [ABA] could have put the issue beyond doubt by providing the letter from the Salvation Army suggested by FOI reviewer. I am unable to obtain any information from the Salvation Army about this matter without consent from [ABA].

The Oxford English Dictionary defines therapy: "as treatment intended to relieve or heal a disorder."

An extended discussion is provided in Wikipedia which lists types of therapies by therapy composition. After matter (drugs etc) and energy (heat etc) it lists:

"by human interaction

· by education

· by exercise, massage therapy, or physical therapy

· by lifestyle modifications, such as eating less unhealthful food or maintaining a predictable sleeping schedule."

I find that giving swimming lessons to disabled children is a therapy by human interaction and as a consequence the record is not inaccurate.

Amendment 7: "That [ABA] did not engage with Police or DoCS staff.

[BS] recorded: "During the process [ABA] birth father did not engage with Police." [ABA] states that the statement is misleading and incorrect. [ABA] stated that he specifically called Police on or about 23/10/2008 to ensure protective measures were put in place. Police refused to assist overcoming the misfeasance of DoCS. [ABA] then e-mailed his local MP since the child protection system was more interested in itself than his children."

The FOI decision-maker's decision states that "In assessing this information I located an Assessment Record: Judgement and Decisions p.162: "It was observed by JIRT workers that [ABA] was not willing to partake in the interview process." I have determined that the comment recorded in the transfer form was informed by the information contained on p. 162."

In requesting a FOI internal review [ABA] stated: "Here you claim that the involvement of a witness in a criminal interview has the same meaning as engaging the DoCS. I provided evidence that I tried to engage DoCS but the Dept. refused to discuss things with me as the Police did outside a criminal interview."

The FOI internal reviewer found that the disputed statement was preceded by the following sentence: "This case was referred to JIRT was investigated and charges were laid."

She went on:

"The disputed statement refers specifically to your participation in the JIRT investigation which occurred after your father injured your son [A] with a leather belt.

"The Police sought to interview you in connection with the assault. Ms Sale's opinion is supported by that of Detective Anne Marie Buckland who wrote the following in her application for the making of an Apprehended Domestic Violence Order against your father. "[ABA] after agreeing to be interviewed later terminated the interview stating that he was insulted as investigators challenged his integrity as a parent. He presented as being overly concerned with issues unrelated to the current investigation. He appeared to refuse to acknowledge in any way that his son had been assaulted."

The FOI internal reviewer declined to amend the sentence on page 179 about [ABA]'s participation in the JIRT investigation process. He was asked to advise if his letters were not to be added to the children's child protection files. I cannot find a response recorded on FOI or child protection files.

In addition to the above material [ABA] agreed to NSW Police making available its findings in relation to a complaint he made to them about Detective Anne Marie Buckland's conduct.

The Police complaint investigator states: "I find that [ABA] has misunderstood the role of Community Services and Police JIRT staff during an investigation of criminal behaviour."

The issues about DoCS previous role in dealing with a request for assistance was not relevant to the assault investigation. [ABA] pursued that issue in separate correspondence to his MP, ICAC and other bodies which ultimately was dealt with in Ms. Gallard's letter dated 7 September 2009.

Finding in relation to amendment 7:

I find that the statement is not inaccurate as it is corroborated by more than one source and I decline to amend it.

Amendment 8: "Claims that [ABA] will wake up one morning and find his children to be normal."

[BS] records: "Birthfather believes he will wake up one morning and find his children to be normal he has accessed all training and workshops which he believes will decrease the disability of both."

[ABA] states that this claim is fictitious - "I never said or implied this. DoCS wanted to provide a false impression of [ABA]'s views since [ABA] had given evidence of their malfeasance. DoCS is still unable to read people's minds even if they want to blame [ABA] for their neglect."

In assessing if this record is a record that should be amended, the FOI decision-maker concluded that the record contained information that can only be defined as opinion. She relied on the FOI Manual which states that third party advice should be provided by applicants in such instances.

[ABA] argued when requesting a FOI internal review: "A normal reader would read this sentence and actually think that what is written is actually what I believe rather than being some made up fantasy of the author. The sentence does not make a claim that it is an opinion. If you wish to continue to assert this statement of claim is a statement of opinion the wording should be changed. ... to do this an explicit statement making it opinion would be useful."

The FOI internal reviewer determined that the purpose of the file is to record Community Services' involvement with the family. As such Community Services records on the file were not written for the "normal reader." She said: "On reading the transfer form, it is clear to me that the disputed statement records the opinion of the writer. I find that the contested sentence is an accurate record of [BS]' opinion and I decline to amend it."

I interviewed [BS] on 12 April 2011 and she recalls [ABA] saying words to that effect, although she agreed she did not record it in quotation marks. [ABA] emphatically denies saying or implying this.

Finding in relation to amendment 8:

In accordance with s. 15(1) (b) I have determined that the statement is irrelevant for the purpose for which it was collected and should be removed from the record. Consequently lines 8 to 10 on page 179 should be deleted from the record.

24 Ms Rowe recommended that a letter be sent to [ABA] setting out the findings and that an apology be provided.

Internal review findings in relation to the second application

25 In her 20 May 2011 determination Ms Rowe wrote:

"3. Community Services conduct in relation to the accuracy of [ABA]'s personal information about 'supports and services available to the family from ADHC and others.'

Psychological support & behaviour management generally

The reference in the file note dated 18 October 2008 to a 24 hour psychologist is incorrect and has been amended for the reasons set out in the internal review dated 10 May 2011.

In making his application on 1 April 2010 to delete the reference to "24 hours" under FOI, [ABA] provided no evidence from ADHC that the 24 hour reference was wrong. Consequently the FOl decision-maker had no basis on which to conclude that the reference was incorrect. The burden of proof under FOI lies with the applicant. On 27 May 2010 the FOl decision-maker told [ABA] to provide evidence from ADHC.

On 23 June 2010 when the FOI internal reviewer dealt with the matter she stood in the shoes of the original decision-maker; that is she dealt with it as if it was an original decision to amend records under the section. [ABA] did not provide evidence from ADHC to the internal reviewer.

It would appear that the FOI unit relied on its copy of the children's file as at 1 April 2010, the date of his initial application, and were not aware of the ADHC letter dated 18 June 2010 which confirmed that the family did not have access to a 24 hour psychologist, but were receiving psychological services determined by the psychologist's professional judgement.

The Hunter Central Coast file review dated 24 August 2010 records the inaccurate reference to a 24 hour psychologist probably resulted from a misunderstanding by the caseworker of what she was told. The casework specialist conducting the file review concluded that there was no indication that there was any deliberate attempt to inaccurately record information.

Speech therapy

The reference in the file note dated 18 October 2008 to speech therapy services being provided and funded by ADHC at that point in time is incorrect and has been amended for the reasons set out in the internal review dated 10 May 2011.

The file indicated that speech therapy had been provided by ADHC commencing in July 2003. No end date is given by ADHC in the information provided. [ABA] said he paid for speech pathology in Coffs Harbour himself but as at June 2008 he could no longer afford to do so. No beginning date is on the Community Services file.

In June 2008 Community Services spoke to Community Health about speech therapy services. When this was reported to ADHC by Community Services, ADHC told Community Services they would follow up with Community Health.

As determined in the internal review dated 10 May 2011 ADHC organised a referral to a program funded by ADHC and run by the Spastic Centre for speech therapy sometime between June and October 2008 but as at 18 October 2008 it had not commenced, nor did it commence before [ABA's family] relocated to the Central Coast later in 2008.

Behaviour therapy recommended by Fragile-X Clinic

As determined in the internal review dated 10 May 2011 the statement in the file note dated 18 October 2008 that there had been a problem in ADHC service delivery expectations as [ABA] was 'fixated' about receiving a particular form of behaviour therapy was not incorrect.

The file records that it is common ground between ADHC and [ABA] that the therapy was not provided by ADHC in [local]. However the ADHC psychologist assisted [ABA and his wife] in delivering the program themselves and with other behaviour supports.

The case specialist review in December 2010 concluded: "[ABA] has made multiple attempts to obtain assistance in dealing with a particular therapeutic need for his children that ADHC was not able to provide. It appears that [ABA] has been very frustrated by this perceived service gap and has made multiple attempts in communicating this to Community Services and ADHC. It is noted that [ABA] has been proactive in exploring and engaging other non-government options in obtaining adequate services for his children's disability needs."

Respite care

The Community Services file note records an ADHC caseworker saying on 13 October 2008 that he had organised respite care for the family 1 week before. The ADHC letter dated 21 October 2008 records that regular respite care was available long term to [ABA's family] from Community Programs Inc. It suggested further inquiries be undertaken directly with them. On 14 October 2008 a worker with that organisation told Community Services that [ABA's family] received FROC funding for respite for Saturday morning respite, with the next occasion being 1 November 2008. She also stated that she was aware of an overnight respite coming up to allow them to attend a conference.

...

5. Findings

Psychological support & behaviour management generally

From the files, it is clear that [ABA]'s family had access to an ADHC psychologist in [a local town] from 2004 to September 2008. ADHC described it "as intermittent support to the family including home visits, visits to preschool, school, formal assessments and behaviour management advice. She wrote numerous reports, undertook formal psychological assessments and consulted with the family about behaviour management strategies.

The psychologist was not involved in direct service delivery to the children, that is, she did not manage the behaviour of the children. She provided the parents with information and strategies so they could implement the strategies and better manage the behaviour. The file indicates this was an issue that [ABA] particularly complained about as he asked for additional assistance in the form of instructions about behaviour management methods to be used in specific circumstances.

In a report written in 2004 it was noted that the parents struggled to maintain regular routines for the children. She noted that Fragile-X sufferers are particularly prone to anxiety, mood swings, and autistic features, and thus require extremely high levels of consistency and predictability.

In July 2008 the psychologist reported to her superior: "that she informed them that they should have their meeting with you first before planning any more clinical input. ... [ABA]'s complaints were in the areas of therapy services and behaviour support, including difficulties with and access to and the frequency and intensity of services. "As expected he wants ADHC to provide 1:1 speech therapy for the boys, regular OT input, and a 'program manager' as well as funding for implementation for [B]'s ABA program. He further wants a structured parenting intervention which tells him exactly what to do in certain situations."

Some degree of conflict was also reported about the ADHC service constraints, what was described as a sense of entitlement about service provision, a lack of follow through on recommendations ADHC staff have made leading to a sense of dissatisfaction on both sides.

It would appear that the psychologist told her superior that her further professional involvement with the family was not warranted at that point and that the family would be better served by getting funding to employ private or NGO service providers to help them implement programs of their choice. The Community Services file does not indicate what ADHC did following this suggestion.

The letter from ADHC dated 18 June 2010 clarified from the file that the family were receiving services from the ADHC psychologist as determined by the psychologist and that this access [presumably the amount of time spent] varied throughout the years of service.

I find that as at October 2008 the family had received significant support from the ADHC psychologist in managing the children's behaviour problems. It is documented in July 2008 that the clinical support available was discontinued at that point while [ABA] lobbied for a different form of support. However, I find this support could well have continued if [ABA] accepted the ADHC service constraints.

Speech therapy

ADHC organised a referral to a program funded by ADHC and run by the Spastic Centre for speech therapy but as at 18 October 2008 it had not commenced, nor did it commence before [ABA's family] relocated to the Central Coast later in 2008.

I find that the not withstanding this, [ABA's family] were eligible for speech therapy assistance and but for their move they would have received a service ... from ADHC.

Behaviour therapy

The file makes it clear that ADHC did not provide or fund the services recommended by Fragile-X Clinic in [a local town]. However the psychologist refers to the initiative taken by [ABA's family] to undertake their own training in this technique and that she assisted in a consultative capacity. The DHC letter refers to the fact that she consulted with the family over a long period of time about other strategies and techniques to manage the behaviour of the children.

I find [ABA's family] were receiving regular behaviour management services from the psychologist who provided detailed advice, practical visual learning routines to follow and strategies to use to encourage good behaviour and to play down non-cooperative behaviour.

Respite care

The file refers to regular respite being provided to [ABA's family] to give them time out on a Saturday morning and to provide overnight respite for a conference during 2008. The psychologist also recommended vacation care to assist [ABA's family] to manage the boys and their workloads during school holidays. The file does not indicate if this was pursued by [ABA's family].

I find [ABA's family] were receiving respite care in October 2008.

Conclusions

Was the Chief Executive's letter accurate?

The letter summarised the decision as at 18 October 2008: "It was determined that you were in receipt of various supports and services through ADHC, and Community Services reinforced your need for assistance with them. These actions are consistent with good practice on the part of Community Services staff. ADHC is the appropriate agency to provide the support you are seeking."

The statement is consistent with the amended assessment conclusion: "Currently the services that are being provided by ADHC and Community Programs are reasonable, regular and consistent. [ABA's family] will have access to speech therapy, have had access to an ADHC psychologist, have access to respite care and are engaged with the school. There is also an allocated case manager with ADHC to oversee continuity of service."

I find that the statement made in the letter dated 7 September 2010 is still in accord with the file, even after the amendments were made to it by the internal review dated 10 May 2011.

The statement that [ABA] alleges is inaccurate is not inaccurate as established in my findings above.

Was it reasonable in the circumstances?

S. 16 PPIP Act requires the agency to take steps that are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate.

It was reasonable in the circumstance for Community Services to rely on the file as it was in September 2010 in drafting the statement about service provision in 2008. The purpose of the use of the information was to reply to a complaint that was made about the decision to close the case without allocating child protection resources as at 18 October 2008.

Despite assertions to the contrary, the 7 September 2010 letter is consistent with the information provided in 2008 and it is consistent with the amended file note as at 10 May 2011.

I find that the agency was not in breach of s. 16 PPIP Act in writing the letter dated 7 September 2010.

26 Ms Rowe recommended that a letter be sent to [ABA] setting out the findings.

27 Prior to the hearing of this matter Ms Rowe reconsidered some of her internal review findings, with a view to settling some of the issues that are in contention and narrowing the issues that remain to be determined by the Tribunal. By letter dated 14 October 2011 Ms Rowe wrote to ABA with proposed amendments to the record. A copy of that letter is before the Tribunal.

28 Ms Rowe wrote:

INTERNAL REVIEW 2 - relating to the email sent by you to me on 13 January 2011

Amendment 1 - 'There was a 24 hr psychologist available for our family to access'.

The '24 hour' reference was deleted. ...

Your position as at 12 July 2011: Amendment 1 is settled.

Amendment 2 - 'Speech therapy was supplied and funded by DADHC'.

Your family had a referral for DADHC funded speech therapy, but had not received the service before you left [the area]. ...

Your position as at 12 July 2011: Amendment 2 is settled.

Amendment 3: - 'The issue with non provision of appropriate services was recorded as being the family rather than the services (as required by the Disability Act)'.

Your position as at 12 July 2011: Amendment 3 is not settled.

You have proposed the following be inserted at page 18 of the record: '[ABA] has asked for appropriate therapies but we do not want to assist.'

I do not agree with your proposal as it does not involve amending what is in the record, but adding new content. That is, your proposal involves re-writing history. The relevant sentence presently reads:

"[RM] stated there has been an issue with [ABA] who is fixated on receiving a type of Behavioural Therapy for the children which is unavailable in the area."

Community Services' proposal to amend this record is as follows: Delete the sentence in its entirety and add:

"[RM] stated that [ABA] has an issue with DADHC for not funding ABA therapy for the children, a type of behavioural therapy not funded or provided by DADHC in the area."

Amendment 4: - 'Claims that behaviour therapies were not available to the children when they had been having them for over a year'.

If you accept my proposal at Amendment 3, the file will record the unavailable service as the ABA therapy and refer to DADHC not funding or providing it, as set out in Amendment 3.

Your position as at 12 July 2011: Amendment 4 is not settled. Community Services Proposal: see Amendment 3 above.

Amendment 5: The services claimed above were available but access was refused by the family.

I note the findings in my second internal review made some alteration to the record, located at page 179, lines 11, 12, 13, 14, 15 and 27 with respect to the following sentences:

`[ABA] tries to access a wide range of services and feels that services need to do something and then he does not access the services. Services are available to the family however they do access. DADHC have provided all the supports and therapeutic services available to them. [ABA] is resistant to services when they are available:

This sentence was amended to now read:

`[ABA] tries to access a wide range of services and feels that services need to do something. Services are available to the family which they do access. (The word 'however' was replaced with the word 'which').

DADHC have provided all the supports and therapeutic services available to them.'

...

Your position: At the planning meeting on 12 July 2011, I am advised by Ms Bartley that you were asked by the Judicial Member if you could live with the amendment I made. You indicated you could not and you sought further changes to the lines noted above.

Firstly, you have asked that everything currently recorded on lines 11, 12 and 13 are deleted, except for the phrase, '[ABA] tries to access a range of services'.

I am prepared to make this amendment.

In addition to this phrase, you seek to insert the following:

'As of 20 November 2008, no therapeutic services were available to the family including, as previously claimed, 24 hour psychologist, speech therapy or Salvation Army therapies'.

I do not propose to insert this sentence, as it is not an amendment to the record as such, rather it is a case of you seeking to rewrite history.

The record currently reads on page 17 at paragraph 10: 'Currently the services that are being provided by DADHC and Community Programs are reasonable, regular and consistent. [ABA's family] will have access to speech therapy, have had access to a DADHC psychologist, have access to respite care and are engaged with the school. There is an allocated case manager with DADHC to oversee continuity of service."

...

Should you wish to provide a statement as provided for in s. 15 (2) Privacy and Personal Information Protection Act Community Services will attach it so it can be read with the page of the paper file and with the electronic document in the KIDS system.

Amendment 6: - 'Therapeutic services were provided by the Salvation Army'.

At the planning meeting on 12 July 2011, I note although time had run out to discuss the proposed amendment, you advised you were not happy with the proposal.

I note the record was written in this form as you had been asked on a previous occasion by the FOI Internal Reviewer to provide evidence of your contentions and further consideration would be given to making amendments. You did not provide any evidence at the time in relation to the Salvation Army, and hence, the Internal Reviewer declined to amend the record.

I note in your evidence served upon Community Services on 23 June 2011, you provided a letter from a [Salvation Army Captain], dated 30 June 2010, which states you received respite care from the Salvation Army.

[The Salvation Army Captain] confirms that therapeutic services were not provided. When you asked me to conduct the internal review in January 2011, you did not provide me with a copy of the letter.

In the light of the letter from [The Salvation Army Captain] dated 30 June 2010, I propose to delete "therapeutic programs" and add "informal respite."

Therefore, it is proposed that the record be changed at page 179, line 28 from:

`Salvation Army' - providing assistance to the family with therapeutic programs'

to: 'Salvation Army providing assistance to the family with informal respite.

Amendment 7 - 'That [ABA] did not engage with Police or DoCS staff'.

I am advised by Ms Bartley that Amendment 7 was not discussed due to a lack of time at the planning meeting on 12 July 2011, however, you disagreed with my decision to decline to amend the record.

I continue to find the record accurate and decline to amend it.

Amendment 8 - 'Claims that [ABA] will wake up one morning and find his children to be normal'.

Firstly, I note the record at page 179, lines 8, 9 and 10 has been deleted in its entirety. I am advised by Ms Bartley that clarification is required around how the record will actually look now. Ms Bartley stated you sought clarification:

a) as to whether the lines which were crossed out would remain but stay crossed out , and

b) whether my handwritten comments about the deletion would remain on the record. If my handwritten comments were to remain on the record I am advised you are of the view I have used the wrong section of the Act, and that the record should show s. 15 (1) (a) of the Privacy & Personal Information Protection Act 1998, not s. 15 (1) (b), as it currently stands.

To clarify, I can confirm the sentences which have been crossed out on page 179 at lines 8, 9 and 10 now do not appear on the record at all, nor do my handwritten comments. ...

INTERNAL REVIEW 3 - relating to the email sent to me by you on 14 January 2011.

I maintain my finding that the Agency was not in breach of s. 16 Privacy & Personal Information Protection Act 1998."

The Respondent's Evidence

29 A number of witnesses provided evidence in support of the Respondent's case. As I have indicated above, I do not propose to discuss the evidence in detail in order to avoid the possibility that the identities of individuals might be revealed.

30 Ms Rowe attended the hearing, gave evidence and was cross-examined. Two Casework Managers also gave evidence and were cross-examined. Those Casework Managers also provided affidavits.

31 Evidence was provided in regard to the Respondent's procedures in regard to the use of records generally and specifically in regard to the record relevant to this matter. Evidence was also provided in regard to the relationship between the Respondent and DADHC and the processes in regard to a JIRT referral of a matter.

32 Ms Rowe gave evidence in regard to the purpose for which the record has been created and use to which it was put. She also gave evidence in regard to the steps that she took to ascertain the accuracy of the information contained in the record.

33 Under cross-examination Ms Rowe conceded that inappropriate comments about ABA are not relevant to the record maintained in regard to ABA's children. She agreed to an amendment to that effect.

34 The Casework Managers conceded that in deciding about the management of a child's case, the welfare of the child should be paramount

ABA's Case

35 ABA provided evidence in support of his case and also provided detailed submissions. I am unable to give weight to much of ABA's material as it is not relevant to the issues to be determined in this matter, other than to provide a context in which the internal review requests were made.

36 In relation to the first application ABA said that he had sought support from NSW Health and DAHDHC, to address the challenging behaviours of his children, [A] and [B]. He was not satisfied with the response that he received from NSW Health and DAHDHC and he approached the Respondent with a request for assistance. He contends that that Request for Assistance was closed using false information. He asserts that the false information was that:

a. there was speech therapy being supplied by DADHC; and

b. there was a 24 hour psychologist available for the family

37 ABA contends that both of these items were false at the time of writing and that decisions were made about not providing preventative behaviour management, using this information.

38 ABA also said that it appears that at some stage DoCS and/or DADHC gave the police false evidence that the services he was seeking were already available and that ABA was refusing to access them because he didn't believe the children had a disability. The police then made judgments without correct facts about the children's needs. He asserts that DoCS and/or DADHC were able to use their position of influence to cover up their malfeasance.

39 ABA said that a police officer informed him of the DoCS claim that his family had a 24 hour psychologist available and that all they had to do was ring her mobile number. The police officer had declined ABA's request to check the accuracy of that information by calling the psychologist. He also asserted that the police officer fabricated information to avoid acting on his evidence and in order to coerce him. He said that when the police later found out that DoCS had provided false information about ABA refusing to access available services the police decided to do nothing but instead they asserted that the false information from DoCS was irrelevant.

40 ABA said that he contacted the local Member of Parliament to get preventative assistance and that the JIRT team retaliated by presenting false and misleading information about him in court in regard to an AVO application. He said that he asked [SH], a DoCS officer, to inform the police about the lack of psychological services and that she indicated she would check on it. In a meeting with DoCS officers on 30 March 2009 he was informed that DoCS were unwilling to correct the information provided to the courts.

41 ABA submits that each of the incorrect pieces of information do not stand on their own but form a picture of conduct and the Respondent wishes to rewrite history in sections to pretend that the conduct did not happen.

42 ABA contends that despite repeated requests DoCS has never addressed or tried to correct any of the harm caused by the false information. Instead they first tried to ignore it, then attempted to justify it. He said that the continual refusal to acknowledge the incorrect information and to repair the damage that it caused has exacerbated the harm and that it ultimately led to the family break down.

43 ABA seeks an order requiring the Respondent to correct the record, by way of amendment. He seeks an amendment to indicate that the Salvation Army was supplying no therapeutic services, including psychology or speech services to the family. The amendment should also indicate that, as the services were not actually in existence, the claims that they were available but that ABA was refusing to access them was fabricated.

44 ABA also seeks an order that he be paid an amount of $40,000 in compensation.

45 He said that the financial cost to his family that resulted from the fabricated information used by the JIRT team is over $200,000. His wife has taken the children and left because of continuing disputes about the fabricated information. ABA said that the separation resulted directly from the misuse of information during the JIRT investigation and that his wife accrued a credit card/loan debt of about $41,000 during the separation process.

46 In relation to the second application, ABA submits that in responding to his complaint the CEO had the duty to examine the specific issues and services that were the subject of the complaint.

47 The specific issues that ABA had raised included false claims regarding provision of therapeutic services; the implication there is a problem with ABA because the Respondent does not want to support appropriate and recommended therapies; whether the Respondent expects parents to ignore specialist medical reports; the claim that ABA's family was in receipt of more services than others with "similar" disabilities when there were no other similar families (that had two so severely disabled children) in the area.

48 ABA said that the complaint also dealt with how he was treated, including conflict of interest in the management of the case; the abusive nature of the interviewers in response to ABA providing true evidence about the conflict of interest; inappropriate action to the conflict of interest (i.e. to cover it up rather than reveal it); failure to treat ABA, as a victim, with respect and honesty and compassion; deceptive and dishonest conduct during the JIRT process; fabrication of services during the JIRT process; fabrication of evidence about the lack of services during the JIRT process to shift blame onto ABA; failure to act on the evidence that ABA provided during the JIRT process by claiming that the evidence that was indicative of malfeasance was 'irrelevant"; and failure to act with the children's welfare being the highest priority but instead covering up their own negligence.

49 ABA said that the complaint also dealt with the use of the fabricated evidence, including that all agencies involved appear to shift blame for examining and providing the services to each other instead of working to coordinate as required by law; Community Services refused to act appropriately on evidence that ABA gave; Community Services fabricated evidence during the JIRT process to refute the evidence that ABA gave so as to cover up their negligence; the use of the fabricated evidence to blame ABA for the negligence of Community Services and or ADHC staff; and that the use of the fabricated evidence was to the detriment of the children and had the opposite effect to that intended by the child protection law.

50 ABA contends that the fabricated evidence was corrupt in nature because it was designed to benefit staff to the detriment of the children. The complaint asked for this corruption to be investigated by the ICAC. ABA contends that the CEO had the responsibility to deal with the complaint in terms of the legislation as well as in the context of various policies and procedures.

51 ABA submits that the complaint deals with the issues of making sure the information is correct, making sure conversation is child focused rather than agency focused and falsification of evidence to protect malfeasance. He says that the role of investigating the complaint is to determine whether or not it is valid so as the agency operates in accordance with the intent of the law and policy. In this regard he says that the Code of Ethics; the Memorandum of Understanding between Community Services and ADHC about focusing on the children rather than the service; and ensuring that the rights of the service users are considered, are applicable.

52 ABA submits that the CEO's response to his complaint is false and/or misleading in that it said that ABA's family was in fact in receipt of the services despite the complaint asserting that they were not. The CEO's response also describes the actions of Community Services staff as being "consistent with good practice" however ABA asserts that there were several breaches of the Code of Ethics and Memorandum of Understanding and lack of focus on the welfare of the children.

53 ABA also contends that the CEO's letter falsely indicates that Community Services "reinforced your need for assistance" when in fact Community Services staff actually breached their Memorandum of Understanding to record that there was an "issue" with ABA asking for assistance with therapies that were recommended for the children's welfare, development and safety. He maintained that Community Service's staff were more interested in condemning him in their reports due to the unavailability of services than reinforcing the need for assistance. He says that overall the CEO's letter was misleading as it failed to mention any of the false information about any of the services.

54 He submits that the CEO's letter is false and misleading as it indicates or implies the services that he listed in his complaint were actually available when they were not. He also says that the letter is misleading by omission as it failed to investigate the corrupt conduct of Community Service staff during the JIRT investigation (by using their influence to fabricate evidence and provide it to the police so as to blame ASA and cover up their negligence). He says that the CEO failed in her Duty of Care to take reports of corrupt behaviour seriously.

55 He further says that the CEO's letter falsely claimed that NSW Police found no corrupt use of information when in fact the police investigation refused to examine the corrupt use of the information.

56 ABA contends that the failure of a speedy resolution to the case has meant that his family has suffered greatly both in cost and emotional terms. He seeks orders that direct that the CEO's letter be rewritten to indicate that the CEO failed to investigate the complaint adequately and take appropriate action and failed to recognize the harm and distress caused by the alleged conduct. He also seeks an order that the Respondent pay him financial compensation of $20,000 for the distress caused to him, with the stipulation that the money be used for therapy for his children. He also seeks an order that the Respondent pay ABA's wife financial compensation of $20,000, for the distress caused to her, with the money to be used however she sees fit to use it.

ABA's response to the proposed amendments

Amendment 1

57 The Respondent acknowledges there was no 24 hour psychologist available for ABA's family to access. ABA contends that the proposed amendment suggest that decisions were made on the basis of the recorded information that ABA's family had a psychologist available when in fact that information is false. ABA says that documents given to the Respondent on 21 October 2008 confirm that the psychologist had withdrawn her services completely in September - the month before it was recorded ABA's family had a 24 hour psychologist available. He says that the Respondent is aware that there was no psychology service at all but asks the Tribunal to accept a new false record.

58 ABA disputes the Respondent's assertion that the purpose of collecting this information was solely to collect data. He says that the purpose of the information was to determine how to respond to ABA's request for assistance for services that he considered were required for the care and protection of his disabled children.

59 ABA contends that the information was used and can be used in the future as a record of how decisions were made regarding the response to his request for assistance. He submits that the information must reflect what the decision makers were told in regards to the circumstances so as to ensure it is accurate for the purpose that it was recorded.

60 ABA further submits that, having regard to the purpose the information was collected, or may be used in the future, and to any purpose related to that purpose, the record should be amended to correctly read

"As at 16th October 2008 it was incorrectly recorded that a 24 hour psychology service is available to the family and decisions made about the care and protection of the children using this incorrect information."

Amendment 2

61 The Respondent acknowledges that ABA's family did not commence therapy with the Cerebral Palsy Association. ABA's family did receive a speech therapy service referral from the [local] office, but those services had not commenced by 14 October 2008.

62 ABA contends that the information was used to determine the response to the Request for Assistance. He says that at the time the decision was made the information used to make that decision was in fact incorrect. He says that from 26 November 2008 the Respondent had written evidence that ABA's family was not getting government funded speech therapy but that ABA was paying for private speech therapy each week.

63 ABA contends that the proposed amendment is a clear attempt to change history and suggests that decisions were made on the basis of what could have happened or what would have happened if circumstances had been different.

64 ABA contends that as the information was used and can be used in the future as a record of how decisions were made regarding the response to the request for assistance, it must reflect what the decision makers were told to ensure it is accurate for the purpose that it was recorded.

65 ABA further submits that, having regard to the purpose the information was collected, or may be used in the future, and to any purpose related to that purpose, the record should be amended to correctly read

"As at 16th October 2008 it was incorrectly recorded that the Department of Disability was funding Speech Therapy Services provided by the Spastic Centre to the family and decisions made about the care and protection of the children using this incorrect information."

Amendment 3

66 The Respondent does not propose any amendment. ABA contends that in making decisions about ABA's Request for Assistance the Respondent was to ensure that in any action or decision concerning a particular child, the safety, welfare and wellbeing or the child are paramount". Further, any actions or decisions that affect the child must take into account the disability of the child. It had the legal responsibility to discuss medical and outcomes evidence for the children. He says that the recommendations for ABA therapy was based on (a) what was recommended by the Fragile X Specialist Clinic at Westmead Children's Hospital; and (b) the fact that the therapy was working as intended.

67 ABA contends that this was relevant information but that, instead of discussions and decisions focusing on the children's welfare and development of the children, decisions were based on ease of administration and derogatory personal opinions of ABA. He says that both of these were irrelevant to the purpose of collecting the information, as they were irrelevant to the welfare of the children.

68 ABA contends that as the information recorded about him was used and can be used in the future as a record of how decisions were made regarding the response to the request for assistance, the information must reflect the bases for the decision makers' decisions.

69 ABA further submits that, having regard to the purpose the information was collected, or may be used in the future, and to any purpose related to that purpose, the record should be amended to correctly read

"Inappropriate comments were made and recorded about the father who cared for the welfare and development of his children instead of ensuring services were suitable for the welfare of children. These comments were used in the decision making process."

Amendment 4

70 The Respondent does not propose any amendment. ABA contends that claims that the children had been having behaviour therapies for over a year are incorrect. He says that during an interview on 12 June 2008 he told the Respondent that the Department of Disability was not providing adequate assistance to implement the behaviour therapy that was recommended for the welfare of the children.

71 ABA contends that the purpose of this record is to record the basis for decisions regarding the Request for Assistance.

72 He says that the Respondent has the legislative responsibility to act in the interests of the children and the legislative power to respond to a Request for Assistance by ensuring another agency delivers services necessary for the safety, welfare and development of the children. He contends that the failure of the Respondent to assist in this regard was justified by the false record that the ABA therapy was unavailable to the children.

73 ABA submits that the record needs to be changed to give a true picture of events. The record should be amended to correctly read

"ABA therapy was available and being done with [B] for more than a year as recommended by Westmead Children's Hospital. It was providing positive outcomes but the Department of Community Services incorrectly recorded that the therapy was not available in the area despite knowing the therapy was being performed. This information was used in the decision to refuse to assist the family after a formal Request for Assistance. "

74 ABA submits that the rest of the requested amendments seek corrections to claims that were made during the JIRT investigation. He submits that Part 5.1 of the Memorandum of Understanding in force at the time clearly shows that during JIRT procedures and ART follow up, case management is the responsibility of DoCS. He says that in the case of his family, [BS] had the responsibility for case management. He referred to page 3 of the DoCS Case Management Policy Document which indicates that the follow up responsibilities of the case manager is to provide:

Coordination of services and supports: arranging, coordinating and following up on the delivery of services and supports.

Monitoring: obtaining regular feedback from the client, carers and service providers to determine whether services are being provided in the manner determined by the case plan and whether needs have changed.

75 ABA submits that therefore, while DADHC has the responsibility to physically provide the service, DoCS has the responsibility to arrange for the services to be there, coordinating the services, making sure they actually existed as well as contacting ABA's family to get feedback - such as the service not actually being there.

Amendment 5

76 The Respondent acknowledges that the record incorrectly recorded that available services were not being accessed. The original record stated

"[ABA] tries to access a wide range of services and feels that the services need to do something and then he does not access the service."

77 ABA contends that the purpose of this record is to indicate how the family interacts with services. He submits that ideally its use should be to inform caseworkers who need to follow up on services and ensure they are working, as in the case management plan. Alternatively the record can be used against a parent when services do not achieve their goals.

78 He says that in his family's case the record was not used for either of the two legitimate the purposes.

79 ABA submits that the Respondent has given two different explanations for the information included in the record. He says that one claims that it referred to something that occurred six months after the report was written and the other claimed it referred to something that occurred six years before the report was written. ABA submits that neither is correct and that the record made definite claims about the services at the time of writing.

80 He says that during the JIRT investigation DoCS told police that services purported to be available at the time (including a 24 hour psychologist) were not being accessed.

81 ABA submits that the proposed amendment attempts to rewrite history by rewriting the sentences in past tense and making incorrect assertions about vague services.

82 ABA further submits that, having regard to how the information was used and how it could be used in the future, the record should be changed to indicate that:

"During the JIRT investigation it was incorrectly recorded that services were available to the family and not being accessed. This incorrect information was passed on to other JIRT members and affected their decision-making with regards to interacting with [ABA]. The information is untrue and [ABA] accessed all the services that were available and was seeking out more appropriate services."

Amendment 6

83 The Respondent does not propose any amendment. It contends that the Salvation Army was involved with service provision to ABA's family at the relevant time.

84 ABA contends that this claim was used in the decision making process to suggest that there were sufficient therapeutic services for [A] and [B].

85 ABA says that the Salvation Army was not providing swimming lessons or any other type of therapy. He referred to a letter from the Salvation Army to that effect that he says was provided to DoCS at a meeting with the Lynda Gould, Acting Directory of Child and Family Services, in 2010.

86 ABA submits that in her internal review Ms Rowe relied on incorrect information about the Salvation Army providing swimming lessons to ABA's children to try to justify the false claim of providing therapeutic services. This is despite the Respondent having seen the letter from the Salvation Army on numerous occasions.

87 He further contends that even if swimming lessons were being provided, that is not "therapy". He says that it must fit the primary definition of what a therapy is to be considered a therapy. That is, it must "relieve or heal the disorder". He further says that there is no evidence that swimming lessons achieve this goal for people with Fragile X Syndrome. He says that swimming lessons is not a type of therapy listed on Wikipedia or any reference books on Fragile X Syndrome.

88 ABA further contends that the Salvation Army was not providing either therapeutic services or what would normally considered respite services suitable for disabled children. Therefore, the suggestion that the record could be changed from therapeutic services to respite services is another attempt to rewrite history.

89 ABA contends that as the information can be used in the future as a record of how decisions were made about providing services, it must reflect the bases for the decision makers' decisions.

90 ABA further submits that, having regard to the purpose for which the information was collected, or may be used in the future, and to any purpose related to that purpose, the record should be changed to indicate that:

"All three therapeutic services that DoCS indicated were available to the family including a 24 hour psychologist, speech therapy funded by DADHC and Therapeutic Services by the Salvation Army did not exist. The only therapeutic services for the children were being paid for privately by the children's father. The incorrect records by DoCS were used in decisions not to organize therapeutic services for the children and DoCS not organizing any therapeutic services during the Request for Assistance or the JIRT intervention. This is contrary to the DOCS Casework Policy manual."

Amendment 7

91 The Respondent does not propose any amendment. It contends that the statement that "During the process [ABA] birth father did not engage with Police or Departmental staff'" is not inaccurate as it is corroborated by more than one source.

92 ABA acknowledges there was difficulty engaging Police/DoCS but suggests that the difficulty was not that he did not engage them but rather they did not engage him about current services.

93 ABA asserts that he wanted to discuss the current services but that the Respondent considered the subject irrelevant to the investigation. He submits that discussion of the services current at the time would have been more relevant to the investigation than distant memories and questions about his childhood and if they had focused on discussing the then current situation and services as ABA wanted, it may have been easier for ABA to engage them.

94 ABA submits that the record purports to describe how he interacted with DoCS and police during the JIRT process that was initiated on 21 October 2008 and finished by [BS] on 26 November 2008 when the case was handed to [SH]. He submits that the relevant information required by the JIRT team is information for them to perform their duties under the Children and Young Person's Care and Protection Act. He argues that section 9(1) of that Act specifically prohibits the JIRT team taking their focus away from the welfare of the child and focus instead on the offender as it quite clearly states that the Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the "welfare and well-being of the child or young person are paramount".

95 ABA contends that the record is therefore inaccurate as he repeatedly tried to engage DoCS and Police about the services required for the welfare and wellbeing of the children but was constantly stonewalled. He says that the simple fact is that he tried to engage both DoCS and police about the several issues and they responded inappropriately and against procedural guidelines. He further says that he raised the issue about the Conflict of Interest in the investigation because of the failure to provide services. He says that the JIRT team incorrectly claimed those decisions were independent of their investigation, despite the fact that they thought they were very relevant and used that relevance to make a section 38 Request for Information. Indeed after that request they made conclusions based on the false information that ABA was a risk to the children before they ever met him.

96 ABA contends that the police refused to engage with him about protective services and the welfare of the children despite speaking to them for several hours. He says that [BS] refused to discuss behaviour therapy with him and that she failed to follow up on the questions ABA asked despite her promise to do so. She also failed to call the speech therapist about behaviour supports after being provided with a report from the speech therapist in November 2008.

97 ABA submits that he went to quite extreme lengths to try to engage DoCS and police about the services required for the welfare of the children. Not many other parents would approach their Member of Parliament because DoCS refuse to talk to them about the welfare of their children. He says that it was the Respondent and police that were refusing to engage in discussion and bring their attention to the welfare of the children. Furthermore the Respondent breached both policy guidelines and legislation to avoid this discussion.

98 ABA further submits that, having regard to the fact that in engaging the JIRT team the welfare and wellbeing of the children was supposed to be the paramount concern, the record should be changed to indicate that:

"ABA went to unusual lengths to try to engage the JIRT team in discussion on services he felt were required for the welfare and well-being of the children but was stonewalled during discussions about services. Ultimately the JIRT team had a focus on the prosecution of the offender rather than the welfare of the children and the courts were told that ABA was irresponsible for viewing the children's welfare as paramount during discussions as it was deemed unrelated to the JIRT investigation."

Amendment 8

99 The Respondent acknowledges that the statement in the record should be removed. The original record stated

"Birthfather believes he will wake up one morning and find his children to be normal he has accessed all training and workshops which he believes will decrease the disability of both."

100 ABA submits that the record purports to describe his understanding of his children's disability and asserted that he does not understand the effects of their disability. He asserts that the claim was demonstrably untrue at the time of writing of that report.

101 In response to the assertion made in the report ABA referred to his academic qualifications to support his contention that he is aware of many current medical technologies. He has worked as a medical researcher, co-authored a number of medical research articles, is aware of current medical issues in his fields of interest and is aware of how to read medical literature. He has worked as a researcher studying human cells and has sufficient understanding of current chromosomal and genetic technologies to know that genetic problems cannot currently be fixed by "waking up one morning and finding his children normal". In July 2008, three months before the Respondent was trying to assert that he did not understand the disorder, he organized Fragile X Awareness Day and made a public presentation of a summary of the issues.

102 He disputes any assertion that he made comments which indicate that he had a lack of understanding and disbelief in the children's disabilities and says that material in the Respondent's possession demonstrates the opposite.

103 He contends that the information is used in conjunction with claims services were not being accessed to assess the risk of the parent towards to the children with special needs. The claim was used in the context of making claims that ABA did not access services despite the fact that the services were not available.

104 ABA submits that the assertion was written on the transfer form where it was used in the context of claims that:

(a) services were available when they were not available;

(b) ABA was not accessing services (that the Respondent was wrongly claiming existed), for the reason that he didn't believe the services were necessary; and

(c) ABA thought he would wake up and the children would be normal.

105 ABA says that the comment in regard to his view of the children's lack of disabilities was made before the JIRT team even spoke to him and was used to influence how the JIRT team viewed him in the context of claims that he was not accessing services that they knew were not available.

106 ABA further submits that, having regard to the facts presented, the record should be amended to be accurate for the purpose for which it was recorded, or for which it is likely to be used. The amended record should read:

"During the JIRT investigation claims were made about ABA's belief in his children's disabilities. These claims were made during the planning process, prior to meeting ABA, and were reinforced on the transfer sheet. The Respondent's explanation for this record conflicts with records in their planning meeting. On the other hand it appears that ABA has a good understanding of the children's disabilities and has presented it publicly on several occasions. The claim that ABA failed to understand his children's disability was used in conjunction with claims that he was not accessing services that were not present for him to access."

Discussion

107 The circumstances of this matter are most unfortunate. It is readily apparent that the relationship between the parties has become extremely strained and there is a risk that this has impacted on ABA's children. It has definitely had consequences in regard to the relationship between ABA and his former wife.

108 I note that in the Respondent has made further concessions in regard to the application and has proposed amendments as set out in the letter from Ms Rowe dated 14 October 2011. Those proposed amendments are set out above.

109 In order to determine the issues in this matter, it is first necessary to determine whether the relevant information constitutes "personal information". Section 4 of the PPIP Act defines "personal information" as follows:

(1) In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

110 The definition of "personal information" is very broad, and not limited to information of a private nature: WL v Randwick City Council [2007] NSWADTAP 58 at [20]; OS v Mudgee Shire Council [2009] NSWADT 315 at [19]. The supply of a name would almost always be "personal information", even in a document which does not contain further information about the person: WL v Randwick City Council at [21]-[22].

111 I am satisfied that the information that is the subject of this matter constitutes "personal information".

112 Section 16 of the PPIP Act provides that an agency must check accuracy of personal information before use. In JD v Department of Health [2005] NSWADTAP 44, the Appeal Panel said:

44 ... the mischief that s 16 is intended to address involves an agency taking action on the basis of information it holds about an individual and in a way which is adverse to the interests of that individual without taking reasonable steps to ensure the information is accurate and not incomplete, irrelevant, out of date or misleading. The Privacy Commissioner submitted, and we agree, that it is only possible to give effect to s 16 if use is interpreted as the process of considering, assessing or weighing up personal information so as to make a decision or adopt a further course of action.

113 In regard to the first application it is my view that those parts of the record that are the subject of this application cannot be said to be "relevant, accurate, up to date, complete and not misleading". I am satisfied that the evidence that ABA has presented clearly demonstrates the inaccuracy in the record. There is no doubt that ABA had made a request for assistance and it was necessary for officers of the Respondent to determine how to respond to that request. I am satisfied that it is probable that the incorrect information was used in that decision making process.

114 Section 17 of the PPIP Act provides that an agency must not use the personal information for a purpose other than that for which it was collected except in limited circumstances.

115 I am satisfied that the personal information was collected for the purpose of decision making in relation to the care of ABA's children. I am satisfied that the use of the information was related to that purpose.

116 Agencies working within budgetary constraints need to consider complex issues and often need to make difficult decisions. ABA's request for assistance almost certainly falls within that category. It is therefore important that information taken into account in making such decisions is accurate. I am unable to determine the extent, if any, to which the incorrect information would have affected the outcome. However, even if the outcome was not affected by consideration of the incorrect information, that does not diminish the significance of its inclusion in the record to ABA and it does not remove the possibility that it could be used to the detriment of the children in the future.

117 I note the comments that previously sought amendments were refused because the decision-maker was unable to find relevant information on the Respondent's files. In this matter ABA has provided information and evidence in support of most aspects of his application for amendment and for the most part there is no contradictory evidence presented by the Respondent. In the circumstances ABA's evidence should be accepted.

118 In my view, the absence of information on the file, or more correctly the inability of the decision-maker to find the relevant information, is not sufficient reason to prevent amendment of the record.

119 I also note the alterations proposed by the Respondent. However, in my view those alterations would not resolve the issue.

120 It is my view that the record should remain as originally recorded but with lines drawn through the inaccurate information in a way that permits the original record to be read but also makes it apparent that the information is not to be taken into account. A further record should be created and attached to the original record in such a way that the new record will be readily apparent to anyone reading the record and that it will be clear that the record has been amended in this way.

121 I set out below the form of words that I propose should be included in a further record to be created and attached to the original record. I note that I generally agree with ABA's suggested amendments to the record. However, I am unable to agree to some of his suggestions, as evidence has not been presented to permit the necessary findings of fact that underlie them. I will allow the Respondent time to consider that proposal and to make submissions in regard to any unforeseen issues that might arise from my proposal.

122 I also note that the Respondent denies that there was any deliberate attempt to inaccurately record information. There is no direct evidence that that was the case. However, in my view that is an inevitable inference to be drawn from the inclusion of some of the information that is the subject of this application. On the interpretation that is most favourable to the Respondent, it is my view that incorrect information has been included either negligently or recklessly.

123 As I have noted above, much of the material provided by ABA is not relevant to the issues to be determined in this matter. However, there appears to be merit in ABA's allegations. I would encourage the Respondent to give further consideration to ABA's complaints.

124 There can be no doubt that information is included in the record with the intention that it be used in forming opinions and making decisions concerning ABA's children. If the inclusion of incorrect information was not a deliberate attempt to inaccurately record information, it must have been included without consideration of the possible impact on those who are the subject of the information.

125 In a recent decision in ABA v Commissioner of Police, NSW Police Force [2012] NSWADT 90 I made reference to the obligations on public sector officers. I stated:

"The proper and efficient functioning of public sector organisations such as [the Respondent] is highly reliant on the judgement of its delegates. They not only need to understand and adhere to the limits of their delegated powers, but to have the judgement and discretion to understand the unwritten limits of their responsibility, and to be attuned to matters which might arouse public attention or be regarded as sensitive. ... [H]igh reliance [is] placed on delegates such as [Police Officers] to know their own boundaries and be attuned to public sensibilities.

126 The circumstances of this matter highlight the consequences that can flow from the failure by officers of the Respondent to observe those obligations.

127 In regard to the second application it is my view that Ms Gallard, as the CEO of the agency, has taken advice from agency officers in relation to the complaint. She was entitled to delegate the responsibility to others and to rely on the advice she was given. Those officers acting under the delegation had the responsibility to consider ABA's complaint and to check the accuracy of the information before using it so as to ensure that the information was relevant, accurate, up to date, complete and not misleading.

128 It seems that the investigation of ABA's complaint was superficial. Given the views that I have expressed above in regard to the accuracy of the record, it can be inferred that if that check was ever undertaken, it was inadequate.

129 It is difficult to understand how the CEO could have formed the view, that she expressed in her letter of 7 September 2010, that the actions of Community Services staff were "consistent with good practice". I understand that Ms Gallard has retired from the position as the Respondent's CEO and she did not provide any evidence in this matter. However, the evidence that was presented casts serious doubt on the view that she expressed in her letter.

130 In my view it is appropriate that ABA be offered an apology for the failure to consider ABA's complaint adequately and the failure to check the accuracy of the information before using it.

Findings

131 It is my view that the Respondent has breached section 16 of the PPIP Act. I am not satisfied that the Respondent has breached other provisions of the PPIP Act.

Damages

132 As noted above, ABA has sought an order for damages, which he asserts flow from the Respondent's conduct and the harm that he suffered as a result of these contraventions. He has not provided any evidence of the loss he has allegedly suffered. The onus is on ABA to show that he has suffered "financial loss, or psychological or physical harm, because of the conduct of the" Respondent.

133 As noted above, ABA has asserted that the inclusion of incorrect information in the record has impacted significantly on his family in both emotional and financial terms. The Respondent disputes that it is responsible for whatever loss ABA has suffered. Ms Bartley, Solicitor for the Respondent, submitted that ABA's claims for an award of damages should be dismissed.

134 On the evidence before me I am not satisfied that an order that the Respondent is to pay ABA damages is warranted. The necessary nexus between the conduct and the alleged established and in my view there is no basis for the making of the award that ABA is seeking.

Proposed Amendments

135 I have indicated above that it is my view that a further record should be created and attached to the original record. I will set out what I consider to be appropriate wording to be included in the new record insofar as it relates to the issues that are in dispute in this matter. I appreciate that it is possible that there could be consequences from this approach that I have not foreseen and therefore the Respondent should have the opportunity to consider the proposed wording prior to making the order.

Amendment 1

136 A line should be drawn through the following words in the original record:

"[RM] stated the family have access to the DADHC psychologist on a 24-hr basis"

137 The record should be amended to read

"As at 16th October 2008 it was incorrectly recorded that a 24 hour psychology service is available to the family and decisions were made about the care and protection of the children using this incorrect information."

Amendment 2

138 A line should be drawn through the following words in the original record:

[RM] stated the family has recently commenced Speech Therapy with the Spastic Centre paid for by DADHC.

139 The record should be amended to read

"As at 16th October 2008 it was incorrectly recorded that the Department of Disability was funding Speech Therapy Services provided by the Spastic Centre to the family and decisions were made about the care and protection of the children using this incorrect information."

Amendment 3

140 A line should be drawn through the following words in the original record:

"[RM] stated there has been an issue with [ABA] who is fixated on receiving a type of Behavioural Therapy for the children"

141 The record should be amended to read

"Inappropriate comments were made and recorded about the father's concern for the welfare and development of his children. These comments were used in the decision making process."

Amendment 4

142 A line should be drawn through the following words in the original record:

"that is unavailable in the area."

143 The record should be amended to read

"It was incorrectly recorded that ABA therapy was not available in the area when in fact ABA therapy was being done with [B] for more than a year. This information was used in the decision making process."

Amendment 5

144 A line should be drawn through the following words in the original record:

"and then he does not access the service"

145 The record should be amended to read

"During the JIRT investigation it was incorrectly recorded that services were available to the family and not being accessed. This incorrect information was passed on to other JIRT members and was used in the decision making process."

Amendment 6

146 A line should be drawn through the following words in the original record:

"Salvation Army - Providing assistance to the family with therapeutic programs"

147 The record should be amended to read

"It was incorrectly recorded that therapeutic services were provided by the Salvation Army This information was used in the decision making process."

Amendment 7

148 A line should be drawn through the following words in the original record:

"During the process [ABA] birth father did not engage with police or Departmental staff."

149 The record should be amended to read

"During the JIRT process [ABA] did not engage with Police or Departmental staff with respect to the investigation. [ABA] attempted to engage the JIRT team in discussion on services he felt were required for the welfare and well-being of the children."

Amendment 8

150 A line should be drawn through the following words in the original record:

"Birthfather believes that he will wake up one morning and find his children to be normal, he has accessed all training and workshops which he believes will decrease the disability of both children."

151 The record should be amended to read

"During the JIRT investigation claims were made about [ABA's] belief in his children's disabilities. These claims were untrue and implied that [ABA] failed to understand his children's disability. The incorrect information was used in the decision making process and was used in conjunction with claims that [ABA] was not accessing services when in fact those services were not available for him to access."

Orders

1. The Respondent is to file and serve any further submissions in relation to the proposed amendments to the record within 14 days of the date of these reasons.

2. The matter is listed for a further planning meeting in relation to any issues arising in relation to the proposed amendments at 11.30 am on Tuesday 3 July 2012.

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Decision last updated: 15 June 2012