Applicant Seeks Amendment of Notation in Police Database

Akers v Victoria Police FOI Division (Review and Regulation) [2021] VCAT 1406 (24 November 2021)

Mr Bruce Akers was noted in the Police LEAP database by Inspector Stubberfield of the Ethical Standards Department of the Victoria Police as a re-suicidal male.  Mr Akers applied for that LEAP entry to be removed, asserting that there was no threat of suicide.  The Court, in deciding whether the notation should be amended, assessed the integrity of the subject database. 

Facts:

On 4 February 1999, Inspector Stubberfield of the Ethical Standards Department of the Victoria Police had an interaction with the applicant, Mr Bruce Akers, as a result of which he made an entry in the Police LEAP database stating that re-suicidal male Bruce Akers was spoken to by Inspector Stubberfield of Ethical Standards Department in relation to domestic and intervention orders during which he appeared confused and threatened suicide by police.  Mr Akers received this document in 2003 as a result of a contested FOI application in this Tribunal.  On 9 August 2020, Mr Akers made an application under Part V (s 39 – s 49) of the Freedom of Information Act 1982 (the FOI Act) for ‘Amendment of personal records’.  

Mr Akers applied for that LEAP entry to be removed, asserting that there was no threat of suicide, and that he did not say he would go home to get drunk with the intention of dying [when] intercepted by police.  On 19 October 2020 the Police wrote to Mr Akers rejecting his request because the information was not sufficient to convince me that the LEAP record was inaccurate, incomplete, out of date or misleading and as such the Court had decided not to amend that part of the record.  Mr Akers sought review by the Office of the Victorian Information Commissioner (OVIC).  On 11 February 2021, OVIC decided to refuse his application, not satisfied that the statements recorded in the document were inaccurate, incomplete, or would give a misleading impression.

Mr Akers has sought review of that decision by this Tribunal.  A Tribunal Book was prepared by the Police containing the material relied upon by both parties.  300 or so pages comprise documents provided by Mr Akers.  They were apparently produced by Mr Akers to provide background, and to seek to demonstrate that the Police had over many years acted maliciously against his interests, and those of his family members. 

Issue:

Whether or not the notation made in the LEAP database in 1999 should be amended. 

Applicable law:

Freedom of Information Act 1982 s 39 - provides that where a document containing information relating to the personal affairs of a person (including a deceased person) is released to the person who is the subject of that information (or in the case of a deceased person, that person’s next-of-kin) that person shall be entitled to request the correction or amendment of any part of that information where it is inaccurate, incomplete, out of date, or where it would give a misleading impression. 

Freedom of Information Act 1982 s 40 - specifies the form for a request to amend a record. 

Freedom of Information Act 1982 ss 41-43 - specifies the process to be followed where the agency agrees to amend the record. 

Freedom of Information Act 1982 ss 44 and 45 - concern the identity of the decision-maker, and the requirement for reasons to be given. 

Freedom of Information Act 1982 s 46 - provides that when an agency refuses to amend a record following a request under s 39, and the Tribunal affirms that decision, the applicant may require the agency to add to the record a notation ‘specifying the respects in which the information is claimed by him to be incomplete, incorrect, out of date or misleading’.

Freedom of Information Act 1982 s 47 - provides that when an applicant does so, the agency must ensure that a notation as required by the notice is added to the record.

Freedom of Information Act 1982 s 49 - provides that any correction or amendment may not have the effect of deleting or expunging the information which has been corrected, or destroying the document, except with the concurrence of the Keeper of Public Records.

Re Buhagiar and Victorian Police (1989) 2 VAR 530 - provides that the amendment of personal records is dealt with in Pt V of the Act.

Stephens v Victoria Police 1998 2 VAR 236] - identified four useful categories to consider in deciding whether there should be amendment of information in the nature of opinion. 

Analysis:

Mr Akers contended that the Court should infer that the entry is false, because Inspector Stubberfield took no action in relation to Mr Akers’ purported suicidal ideation.  If the Inspector was genuine in making the entry, then it would be expected that he would have taken some concrete action in response to the threat of suicide.  Yet he let Mr Akers continue to drive.  Failing to take some action to intervene, in the circumstances, could have had very serious consequences indeed, if the notation was genuine.

Inspector Matters explained that the Police’s LEAP database's integrity is maintained in part by having limitations on the ability to alter records that are in place. The system is designed so that its records cannot easily be altered.  For example, if it is discovered that an offender has provided police with a false name, rather than remove the false name from the LEAP system, the original entry will be retained (the name may be used as a reference for an alias) and a new LEAP entry will be made which is linked to the original entry and which provides the offender’s real name and explains that the name in the previous entry was in fact false.  If LEAP could be retrospectively altered, that could undermine the Police’s intelligence system which provides information on how interactions with people are best handled. 

Conclusion: 

The decision of the respondent refusing to amend the entry in the LEAP database of 4 February 1999 relating to the applicant is affirmed.  The Court notes that it seems unlikely that even if the LEAP entry was somehow ‘thoroughly discredited’, that could be regarded as adversely affecting Mr Akers’ interests, or his ‘rights or benefits’ (to use the phrase in the above passage from Buhagair) now, given the passage of almost 23 years since it was made, and the numerous supervening events which have occurred, which have given rise to their own LEAP entries and a great deal of other documentation.