VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
review and regulation LIST	vcat reference No. Z95/2021	
CATCHWORDS	
Freedom of Information Act 1982, s 39 – whether notation made in LEAP database in 1999 should be amended.	

APPLICANT	Bruce Akers	
RESPONDENT	Victoria Police FOI Division	
WHERE HELD	Melbourne	
BEFORE	Jonathan Smithers, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	11 November 2021	
DATE OF ORDER	24 November 2021	
CITATION	Akers v Victoria Police FOI Division (Review and Regulation) [2021] VCAT 1406	

Order
The decision of the respondent refusing to amend the entry in the LEAP database of 4 February 1999 relating to the applicant is affirmed.

Jonathan Smithers
Senior Member			

Appearances
For applicant	In person	
For respondent	Mr Brnovic of counsel	

Reasons
Introduction
1	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. The entry relevantly stated as follows:
Attention all members
Re-suicidal male Bruce Akers [code] of [address]
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. Nil weapons, not known re-alcohol. [He] stated that he was going home to get drunk then drive with the intention of being intercepted by police. Last seen driving blue Holden sedan [registration number …]
Description: male, Caucasian, 170 cm tall, slid (sic) build; brown greying hair, hazel eyes, ruddy complexion.
Authorised Inspector Stubberfield ESD
2	Mr Akers received this document in 2003 as a result of a contested FOI application in this Tribunal. 
3	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). This provides for ‘Amendment of personal records’. Mr Akers applied for that LEAP entry to be removed. In email correspondence of 12 August 2020 relating to the application, Mr Akers said to the police 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.
4	On 19 October 2020 the Police wrote to Mr Akers rejecting his request. Reflecting the words of s 39, the response said:
The information provided by you was not sufficient to convince me that the LEAP record was inaccurate, incomplete, out of date or misleading and as such I have decided not to amend that part of the record.
5	Mr Akers sought review by the Office of the Victorian Information Commissioner (OVIC). On 11 February 2021, OVIC determined to refuse his application. The Public Access Deputy Commissioner said she was not satisfied that the statements recorded in the document were inaccurate, incomplete, or would give a misleading impression.
6	Mr Akers has sought review of that decision by this Tribunal.
7	In accordance with the Tribunal’s orders, a Tribunal Book was prepared by the Police containing the material relied upon by both parties. It amounted to 386 pages. This included the s 49 statement and a witness statement and contentions by the Police (with some duplicates, amounting to approximately 60 pages). The remaining 300 or so pages comprise documents provided by Mr Akers. These include health records, other LEAP records, documents forming part of various court and tribunal proceedings in which Mr Akers has been involved, and documents involving his interactions with Ambulance Victoria. Many are apparently documents which Mr Akers has received through various FOI applications and some are documents forming part of those FOI processes. These documents were certainly not a coherent set. 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. 
8	Mr Akers also produced a witness statement and was cross-examined. For the Police, Inspector Craig Matters produced a witness statement and was cross-examined.
Part V of the Freedom of Information Act 1982
9	Section 39 of the Act provides:
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.
10	Section 40 specifies the form for a request to amend a record. Sections 41, 42 and 43 specify the process to be followed where the agency agrees to amend the record. Sections 44 and 45 concern the identity of the decision-maker, and the requirement for reasons to be given. 
11	Section 46 relevantly 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’. 
12	Section 47 says that when an applicant does so, the agency must ensure that a notation as required by the notice is added to the record. Additionally, any person provided with the record is also to be given a statement to the effect that the person to whom the information relates claims that it is incomplete, incorrect, out of date or misleading, as the case may be, and giving particulars of the notation. Additionally, the agency may include a statement of reasons why it has refused to amend the record. 
13	Section 48 is not of any present relevance.
14	Section 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.
Caselaw 
15	In Re Buhagiar and Victorian Police (1989) 2 VAR 530, Judge Jones said
 at pp.531 and 532:
The amendment of personal records is dealt with in Pt V of the Act.  The rationale for these provisions is well caught by the following comments of Gesell J about the amendment provisions of the US Privacy Act: RR v Department of the Army 482 F Supp 770 (1980) at 773: 
‘Accuracy of government recorded personnel information is particularly important in our complex and bureaucratically interrelated society, where an individual’s rights and benefits may well be influenced or determined by what some government agency has to say about him.  The prejudice resulting from inaccuracy may affect determinations reached by third parties, public or private, as well as those made by the record-keeping agency.  Of course no individual is entitled to shape or color such information according to his own whims or preferences.  On occasion accuracy is achieved only be allowing a disputed question of fact or judgment previously recorded to remain in the record, qualified by subsequent data.  On the other hand, it may be necessary to eliminate clear mistakes of fact or irresponsible judgment from an individual’s file so as not to prejudice prospects for a fair determination of his rights or benefits.’ …
16	Further, at p 539 Judge Jones said: 
Mr Howie in [Stephens v Victoria Police 1998 2 VAR 236] at 239 identified four useful categories to consider in deciding whether there should be amendment of information in the nature of opinion.  With respect, I agree with his categories.  They are: 
‘1. 	The facts underlying such opinion have been thoroughly discredited or have been demonstrated to be totally inadequate; 
 2. 	The person forming such opinion was tainted by bias or ill will, incompetence or lack of balance, or necessary experience; 
 3. 	The factual substratum underlying the opinion is so trivial as to render the opinion formed dangerous to rely upon and likely to result in error; 
 4.	 The facts upon which the opinion was based were misapprehended.’ 
17	While these four categories are of course only a tool to assist in conducting the analysis under s 39, they have frequently been referred to and described as very useful.
18	In s 39 cases, notwithstanding s 55(2) of the FOI Act, the applicant bears an ‘initial burden’ of providing evidence making out a prima facie case that information in the documents in question is inaccurate, incomplete, out of date or would give a misleading impression. As Senior Member Megay said in Connell v Department of Justice, ‘it could hardly be otherwise if the legislation were to remain workable’. Otherwise the agency would have to prove the accuracy of every statement in every document it holds. 
19	If Mr Akers discharges that burden, the Police then bear the ‘ultimate burden’ of justifying their decision.
Mr Akers’ case
20	Mr Akers accepted that he bears the initial onus referred to above. He submitted that he had discharged it. He contended that:
•	‘Victorian Police have used this file note by Inspector Stubberfield to ‘shape and colour the LEAP documents. Police have used this document and others to pa[i]nt their views about the Applicant and his family’. 
•	I 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.
•	[Clearly reflecting the four circumstances, or categories, referred to in Stephens and other cases]: ‘The Inspector either clearly made a misinterpretation of Bruce Akers and/or was of malice, tainted by bias, ill will, lack of balance, factual substratum underlying the opinion is so trivial as to render the opinion formed dangerous to rely and likely to result in error; the facts which the opinion is based are misapprehended; the facts are underlying such an opinion have been thoroughly discredited and have been totally inadequate’.
•	The fact that in its 2003 decision the Tribunal ordered that the 4 February 1999 LEAP entry be released to him, indicates that the word of the police was found to be unreliable, and this supports his contention that that entry is inaccurate.
21	During the hearing, Mr Akers referred to a number of the traumatic events which have occurred in his life. These include the domestic and relationship issues which were the background to the LEAP entry of 4 February 1999, an incident in 2000 where he was crushed by a horse resulting in serious injuries, processes involving VicRoads, WorkCover and Centrelink, and the criminal findings against him for failing to feed 21 horses in 2016. The Police have had involvements with Mr Akers on numerous occasions. He alleges that over the last 40 years, the Police have ‘tried to kill me, cause me pain and suffering, tortured me then interview me and refused medical and like’.
Victoria Police’s case
22	Inspector Matters has been a member of the Victoria Police for over 40 years. He has performed many different roles in that time. He is currently the Deputy Freedom of Information Officer in the FOI Division of the Victoria Police.  
23	Inspector Matters explained that the Police’s LEAP database is, in effect, a repository of intelligence, for use by police officers in future interactions with particular individuals. He said the database might record that an individual was suicidal at a particular point, had mental health issues, or had an acquired brain injury, for example. 
24	There is an authorisation and quality control process, whereby a senior officer must approve a proposed new entry before it is entered into the LEAP database. The integrity of the database 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. The Police are often called upon to share LEAP information with other agencies. Accordingly, there is much effort expended in ensuring that the incidents as reported are true and correct.
25	LEAP is a chronological record of actions taken and information gathered. When new or different information is received, the normal course is that the record is altered by the addition of a new entry, rather than the amendment of an existing entry:
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.
26	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.
27	In addition to the evidence of Inspector Matters, the Police relied on material contained in the Tribunal Book which had been provided by Mr Akers, and his answers in cross-examination. In particular, three reports provided by Mr Jeffrey Cummins, forensic psychologist, between May and November 2017, in the context of sentencing for offences to which Mr Akers pleaded guilty, involving failing to provide proper feed to 21 horses. Matters in these reports which the Police relied on were:
•	A diagnosis of PTSD (post-traumatic stress disorder) as a result of the various traumatic events to which Mr Akers has been exposed – particularly dating from when he was crushed by a horse in 2000. Mr Cummins expressed the opinion that Mr Akers’ perception, judgement and reasoning abilities were impaired as a result.
•	Mr Cummins’ opinion that Mr Akers ‘is obsessed with the notion that he has been repeatedly wrongfully treated by a number of institutions and, most recently, VicRoads, WorkCover and Centrelink… he has often displayed an elevated level of paranoia.’
•	Mr Akers’ memory is now sometimes failing him. This would ‘doubtless not be assisted by the fact that he has often used alcohol as a means of mood regulation’. He has a lengthy history of alcohol dependence. When this was put to him, Mr Akers said that his long-term memory is good but his short-term memory is bad.
•	In the course of proceedings against VicRoads in 2016 concerning the proposed compulsory acquisition of part of the property on which he lived (beneficially owned by his daughter) Mr Akers made a reference to suicide, which led to a visit from Police and him being taken to Royal Melbourne Hospital. He was released after two hours. Then, having no money for transport, he apparently walked all the way back to Bulla, before collapsing. He was then picked up by police and driven home.
•	Other statements made to Mr Cummins by Mr Akers about him having referred to suicide in the course of multiple interactions with the police (mainly between January 2016 and April 2016). 
28	The Police submitted that what Mr Akers was contending was that the LEAP entry of 4 February 1999 was ‘inaccurate’. In my view, that is the correct characterisation of Mr Akers’ application. The Police contended that he had failed to discharge his initial onus of providing evidence making out a prima facie case that the entry was inaccurate. 
29	The Police submitted that Mr Akers’ case amounts to no more than an assertion that the entry is wrong. No evidence was produced to support that contention. No contemporaneous documents or accounts of other persons, or other evidence which could bear on the accuracy of what Inspector Stubblefield noted had occurred 23 years ago were produced. The extensive material provided by Mr Akers and included in the Tribunal Book did not support it. Indeed, it tended to suggest the entry is correct.
30	The diagnoses and observations by Mr Cummins of PTSD, paranoia, memory loss and alcohol dependence all suggest that it would be quite unsafe to rely on Mr Akers’ uncorroborated assertions that the note made 23 years ago is inaccurate.
31	On behalf of the Police, Mr Brnovic submitted that Mr Akers is seeking to change the record of history because ‘it does not fit with his world view, in which he is the victim of a 40 year campaign against him’.
32	Additionally, it was submitted that in light of the evidence of Inspector Matters, if the Tribunal were to order that the 4 February 1999 LEAP entry be amended, that would undermine the effectiveness and purpose of the LEAP database.
The 2003 VCAT Decision
33	Mr Akers suggested that the 2003 VCAT decision to release the 4 February 1999 LEAP entry to him undermined the veracity of the entry itself. That is not so. 
34	The relevant evidence of Inspector Stubberfield was set out in the 2003 decision as follows:
He mentioned he was going to cause a situation with the police where he would have something to drink and cause police attendance and necessitate police shooting him. I sat him down and discussed these comments with him. Outwardly, he didn’t appear upset but seriousness of his comments deserved action. I counselled him for some time regarding these threats which, to my recollection, were made because his wife was not returning home. I advised him to seek psychiatric and legal advice regarding his matrimonial problems and property settlement. Prior to leaving he asked me to contact his wife and ascertain if she would be prepared to speak to him. Once he left the station I instructed Sergeant Hunting to notify police communications and arrange for a message to be broadcast advising all police of the threat made by Mr Akers.
35	Senior Member Steele’s reason for ordering the release of the document was that she did not accept that the two FOI exemptions claimed by the Police in fact applied. These were s 31(1)(d) (law enforcement documents) and s 30 (internal working documents). The Senior Member said:
The title given to the document in the schedule of documents in dispute and the description in Inspector Stubberfield’s evidence reveal everything which is in the document as far as I can see.
36	In terms of s 31(1)(d), the Senior Member found that release of the LEAP entry would not reveal any method or procedure [used by the Police in carrying out their operations] which had not already been fully revealed by the Police’s evidence.
37	For similar reasons it was found that it had not been demonstrated that s 30 applied either. Given the extent to which the police had, in the course of presenting their case, revealed the contents of the LEAP entry, it was not shown that the public interest would be harmed by release of the document to Mr Akers. 
38	I note that the Senior Member commented, in concluding this aspect of her decision:
There is nothing in the [4 February 1999 LEAP entry] which has not already been revealed in the statements made nor is there anything which the police should in any way be concerned about having disseminated. Indeed the warning seems entirely appropriate. It is an attempt to ensure that any self-destructive intent of Mr Akers is not brought to fruition.
39	Thus, the 2003 VCAT decision does not undermine the veracity of the 4 February 1999 LEAP entry. If anything, it tends to support it.
Conclusion
40	I find that Mr Akers has not discharged his initial burden of providing evidence making out a prima facie case that the 4 February 1999 LEAP entry is inaccurate. I accept the contentions put by the Police.
41	There is simply no evidence to suggest that the note is inaccurate, or a result of misapprehension, or that it was tainted by bias or ill will. There is nothing more than the mere assertion made by Mr Akers. The consequence is that his application for amendment of the 4 February 1999 LEAP entry is refused. The decision of the Police refusing to amend it is affirmed. 
42	Indeed, in my view, not only is it the case that Mr Akers has failed to discharge his initial onus, but further, the evidence which the Tribunal received in fact runs counter to his case. I accept that quite apart from his lack of impartiality in the matter, the other factors such as his mental health diagnosis and symptoms, and other events referred to in the evidence, including his references to suicide on a number of occasions, in fact lend support to the suggestion that the notation by Inspector Stubberfield was accurate. 
43	I also accept the evidence about the importance of maintaining LEAP as a chronological record of actions taken and information gathered, and indeed, opinions formed, as matters evolve. While there can be circumstances where it is sufficiently clear that an entry is wrong, in this instance, it seems likely that for the Tribunal to agree to the amendment, would amount to it acceding to a request by Mr Akers for the historical record to be re-written in the way which he would like it to be. 
Final comments
44	As a result of this decision, Mr Akers is able to invoke the process for having his version of events of 4 February 1999 added to the record, pursuant to the process in s 46 and s 47. 
45	Finally, I note 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.

Jonathan Smithers
Senior Member