Avery and Commissioner of Taxation [2009] AATA 559 (30 July 2009)

Last Updated: 30 July 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 559

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/4776

GENERAL ADMINISTRATIVE DIVISION )

Re Stephanie Tatiana Patricia AVERY

Applicant

And Commissioner of Taxation

Respondent

DECISION

Tribunal Professor G D Walker, Deputy President

Date 30 July 2009

Place Sydney

Decision The decision under review is affirmed.

....................[sgd]......................
Professor G D Walker
Deputy President

CATCHWORDS

FREEDOM OF INFORMATION - application to amend record - Australian Taxation Office client register - record of personal information - use of legal name - administrative purpose - notices of assessment - proof of identity - whether records are incomplete, incorrect, out of date or misleading – burden of proof - exercise of discretion in favour of amending record - no useful result - decision under review is affirmed

...

RELEVANT ACT

Freedom of Information Act 1982 (Cth) (the FoI Act): ss 4, 48, 49, 50, 61

...

CITATIONS

Re Bashari and Minister for Immigration and Multicultural Affairs [2006] AATA 839

Re Loqmani and Minister for Immigration and Citizenship [2008] AATA 74

Sunrise Auto Ltd v Deputy Commissioner of Taxation (Cth) (1994) 124 ALR 425

Sunrise Auto Ltd v Deputy Commissioner of Taxation (Cth) (1995) 133 ALR 274

Slezankiewicz and Australian and Overseas Telecommunications Corporation [1992] AATA 204

Re Scrivanich and Australian Taxation Office (1983) 5 ALN N299

Re Page and Director-General of Social Security (1984) 6 ALN N171

Re Jacobs and Department of Defence (1988) 15 ALD 645

Re Mulder and Department of Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 410

Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 410

...

REASONS FOR DECISION

30 July 2009	Professor G D Walker, Deputy President
Basic facts

1. The applicant applied to this tribunal on 10 October 2008 for review of a decision by the respondent on 30 September 2008 (T4 pp6-9) refusing to make an amendment to her personal records as requested under s 50 of the Freedom of Information Act 1982 (Cth) (the FoI Act).
2. A chronology of the matter is as follows:

Date	Event	Ref
29 December 1997	Applicant changes legal name to "Stephanie Tatiana Patricia Avery"	T7-27
6 February 2008	Applicant writes to Australia Tax Office (ATO) Freedom of Information (FOI) Department requesting all names recorded and dates of validity	T5-10
21 February 2008	ATO responds to Applicant granting full access and enclosing documents	T6-11
25 February 2008	Applicant emails ATO regarding response to her FOI application; Applicant requests corrections and copies of records	T7-22
25 February 2008	Applicant writes to ATO regarding details of her legal names	T7-24
25 February 2008	Applicant writes to ATO requesting all names recorded on file and dates of validity	T7-30
26 February 2008	Applicant writes to ATO re changing of personal information	T8-31
3 March 2008	ATO writes to Applicant in response to her correspondence of 25 and 26 February 2008	T9-33
10 April 2008	ATO writes to Applicant re lack of response to ATO correspondence of 3 March 2008	T10-37
28 April 2008	ATO writes to Applicant re application being treated as withdrawn	T11-42
10 August 2008	Applicant writes to ATO FOI officer requesting information under the FOI Act regarding cancellation of previous tax file number (TFN)	T12-44
12 August 2008	Applicant lodges FOI application with ATO requesting correction to name on all correspondence	T13-46
22 August 2008	ATO writes to Applicant making a decision granting access to documents and enclosing computer printouts (decision of Elizabeth Li) Also at attachment 29 of 58 to Applicant's AAT application	T14-47
26 August 2008	Applicant speaks to ATO officer Lisa Cozis regarding Applicant's FOI application	T15-50
26 August 2008	ATO officer Lisa Cozis writes to Applicant explaining the ATO's system of computer generated correspondence and enclosing screen print Also at attachment 45 of 58 to Applicant's AAT application	T16-51
1 September 2008	Applicant writes to ATO in response to the released screen prints marking allegedly incorrect information Also at attachment 36 of 58 to Applicant's AAT application	T17-55
1 September 2008	Applicant writes to ATO FOI unit seeking a review of the FOI determination under Part VI of the FoI Act Also at attachment 40 of 58 to Applicant's AAT application	T18-59
30 September 2008	ATO officer Terry Williams makes decision on internal review, finding that details of the Applicant's full name are contained in ATO database Also at attachment 48 of 58 to Applicant's AAT application	T4-6
13 January 2009	Applicant lodges AAT review application
25 February 2009	AAT preliminary conference held
18 March 2009	Respondent files and serves Response to application and Affidavit of David Allen

3. At the hearing, the applicant appeared in person, while Ms Katherine Hooper, solicitor with DLA Phillips Fox, appeared for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant adduced no oral or affidavit evidence and the respondent called one witness to give oral evidence by telephone.
4. At the hearing the applicant was directed to serve on the tribunal and the respondent a copy of the additional screen printout of an Australian Taxation Office (ATO) summary screen on which she proposed to rely.
5. After the hearing the applicant filed an application for variation of the direction and an extension of time for complying with it.
6. The applicant’s request for variation of the direction sought leave to tender documents and evidence by 21 July 2009 and to lodge written submissions and an alternative chronology by 20 August 2009.
7. Subsequently, under cover of her letter of 11 June 2009, the applicant filed a copy of the summary screen (which had been provided by the respondent) in compliance with the direction, as attachment A to that letter. The applicant also filed two further supporting documents, attachments B and C, on which she also sought to rely.
8. The respondent did not object to the tender of attachment A but opposed attachments B and C, indicating that he would seek leave to tender evidence in reply if those documents were admitted. The applicant then indicated by email that she would submit “more issues to be examined/admitted” should leave for further evidence and documents be granted.
9. The respondent was prepared to proceed on the basis that additional questions would be resolved on the papers, subject to whether the applicant wished to cross-examine on any further affidavits or statements filed by the respondent.
10. The applicant’s extension of time application proposed a timetable extending to 20 August 2009, with the tribunal’s decision presumably being delivered some time after that.
11. As my commission expires on 31 July 2009, however, the decision would need to be drafted, edited and published no later than the close of business on Friday, 31 July, otherwise the matter would need to be listed for rehearing and fully re-argued before a different tribunal member. I therefore refused the application for an extension of time and for leave to lodge further evidence and submissions (apart from attachment A).

Issues

12. There are two issues in this application:
    • (a) Is the record of the applicant’s personal information incomplete, incorrect, out of date or misleading within the meaning of ss 48 and 50 of the Freedom of Information Act 1982 (Cth) (the FoI Act); and if so,
    • (b) Should the discretion in s 50(1) be exercised in favour of amending the record?

Respondent’s witness

13. Mr David Allen, a director in the Australian Taxation Office (ATO) Brisbane branch responsible for projects, assurance, project design and other matters related to the ATO client register, gave evidence orally and by affidavit (Exhibit R2).
14. Mr Allen said that the client register is maintained in the ATO Integrated System (AIS). It records details of persons and organisations dealing with the ATO, including identifiers, name and address, and details of any lodgment and payment obligations. The information in the register is the basis for all interactions with the ATO.
15. Legal name information for individuals is stored in AIS in a structured arrangement of title (15 characters), first name (15 characters), other given names (30 characters), surname (30 characters) and suffix (10 characters) in accordance with Australian Standard 4590 (AS 4590).
16. The applicant’s full name as recorded on ATO systems against her tax file number is Stephanie Tatiana Patricia Avery, as can be seen from the copy of a screen print from the main page of the AIS database (Exhibit R2, annexure A). That screen displays the legal name for the individual and forms part of the mandatory data for a client record. It records names as provided by the taxpayer. Those names are used to “populate” other locations in ATO systems where less detail is required, such as where an abbreviated version of the name comprising first name, middle initial and last name is displayed in the header or on the client record in AIS.
17. The ATO’s client relationship management system, known as Siebel, is populated with client record information from AIS and is the main system for work management, case management and client interactions. The main information displayed in Siebel is sourced from the legal name screen in AIS and includes title, first name, all other given names, surname and suffix. Siebel is used by operational staff to view correspondence and other interactions with the client. The legal name displayed there is consequently used to check the identity of the client.
18. In all interactions with taxpayers, officers must adhere to the “POI” (proof of identity) policy and associated procedures. Those procedures require checking the client’s identity, including their legal name, before updating the client record, disclosing information or taking other action.
19. When ATO correspondence is prepared manually, officers have the option of addressing the client using the full legal name as recorded in AIS. Documents relating to legal proceedings are manually issued in that way.
20. Correspondence generated by the automated system uses templates that extract name information from the register. For the purposes of addressing the letter, those templates may convert an other given name to an initial, or display only the title, first name and last name. A limit of two lines comprising 38 characters each exists for correspondence names, with concatenation rules to ensure that first and last names are displayed in their entirety, otherwise longer surnames could be partly cut off.
21. In the present case, storing other given name details as a composite first name is not possible because of character limitations for that field. Further, it would contravene the structure of individual names in AS 4590 and AIS standards. AIS currently allows 15 characters for first names, which is insufficient for including both the applicant’s other given names in the same field. It would also impair name searching, matching and validation activities, which are based on the existing standard and AIS name structure.
22. It would be possible to amend the current ATO system process for addressing correspondence to display the applicant’s title, first name, initials of other given names, surname and suffix in automated correspondence, but it would mean altering the entire system, which would have extensive implications for other taxpayers. Any amendment to the system process would take an estimated 70 days to construct, test and update procedures for 13 systems. At least another 35 days would be needed to amend other computer systems such as HECS and superannuation.
23. The ATO is currently engaged in a large-scale transition to new processing systems. Consequently, changes to AIS and other pre-existing systems are likely to be approved only when there is a compelling need for them. To do so would divert analysts and developers who have to meet critical deadlines in a large project with many dependent structures.
24. Further, the amendment the applicant proposes could also be detrimental to the privacy of other taxpayers, who would be exposed to increased risk of identity theft where their entire legal name would be visible through the envelope window. Feedback from other clients indicates that they would be uncomfortable with that information being openly displayed in such a manner.
25. Finally, as there are still limitations on the number of characters that can be displayed, taxpayers with names exceeding the limit and which must be abbreviated would have a different experience from those with fewer or shorter names.
26. The screen shown in annexure A to Exhibit R2 is the opening screen for Siebel. It pops up automatically when an ATO user is dealing with a client who has identified himself or herself via tax file number or proof of identity procedures. It is the front-line resource.
27. Abbreviated versions of that information are used on some screens because of “real estate” limitations. It is not possible to put all information on the screen and so the key details must be selected. The header information is drawn from the more detailed client record.
28. Names of individuals are considered to be structured (presumably as opposed to such things as the names of corporations, which are a single entity), and automated correspondence is linked to the primary record. But as names used on addresses are limited by space to 38 characters, system rules are needed for the manner in which names are created. The most important field is the surname, then the first name, then the middle name. This is necessary to avoid the automated creation of nonsense names. The middle name may be abbreviated so that all clients will receive the main information.
29. To change the rules for the entire client base would be an enormous project, entailing numerous complications such as in relation to the names of estates and trusts. At present the ATO is redeveloping its systems, a project extending over a number of years. Additions are constantly being made to the scope of what has to be done. Consequently, it is unlikely that any additional changes would be approved. In any event, listing all names on automated correspondence would raise privacy issues for most people and would generate more complaints than the existing system.
30. Mr Allen confirmed that all the screens referred to were restricted to internal ATO use only.
31. When given the opportunity to cross-examine the witness, the applicant said that she had been taken by surprise as she had prepared her questions on the basis of the affidavit and had not realised Mr Allen would be giving oral evidence in chief. Nevertheless, she reluctantly proceeded.
32. She began by asking Mr Allen why the ATO did not issue assessments in the taxpayer’s full legal name. Mr Allen replied that in relation to some documents there is a legal requirement for the full name, for example in relation to debts. He was not sure of the position in relation to notices of assessment, but thought the reason must be that there is no legal requirement for the full name to be used on such documents. The same would apply to the higher education loan statement. The full name may, however, be used in the body of the letter.
33. Mr Allen rejected the suggestion that the respondent was changing taxpayers’ names without authorisation, adding that the name used on letters was simply a means of ensuring that correspondence reached the client. There was no intention of changing a person's identity, as identity is the highest ATO priority. It was simply a matter of taking some information from the client register to use in certain dealings. Only one screen confirmed a taxpayer’s full name. Other subsidiary screens were for different purposes and were not used to confirm the client’s legal name. There was no reason why that practice should give rise to any confusion.
34. Further, the system as currently structured could not support customisation of automated processes for particular taxpayers.

Applicant's submissions

35. The applicant submitted that some of the records held by the ATO recorded her correct name and some did not. Assessments and correspondence used an abbreviated form, which was wrong, as tax assessments are regarded as a form of proof of identity (Exhibit A1). If a person had 100 names they should all be used on official envelopes and on assessments; anything else would be misleading. A person’s legal name was defined in Black’s Law Dictionary as the full name as known under the law. As there was no doubt about her full legal name, this was a simple case and she did not understand why the current proceedings were necessary.
36. Use of the abbreviated form of her name could cause confusion. She had some time ago changed her tax file number because she did not feel secure. She had become concerned because when performing a transaction at her bank she had been asked if she was the Stephanie Avery who lived at Fairfield, where she had never resided.
37. The respondent had no power to change her name for her and she did not wish to be known by any other name. Her legal name should be used, although Stephanie T P Avery would acceptable.

Consideration

38. In applications for amendment of records under ss 48, 49 and 50 of the FoI Act, the special burden of proof on the respondent created for certain purposes by s 61 has no application: Re Bashari and Minister for Immigration and Multicultural Affairs [2006] AATA 839 at [40]- [50]; Re Loqmani and Minister for Immigration and Citizenship [2008] AATA 74 at [39]- [46].
39. The first question is whether the documents in question constitute a “record of personal information” within the meaning of s 50(1). The term “record” is not defined in the FoI Act but the courts have treated it as being a term of wide scope. Spender J has described it as:

... that by which information is recorded, and covers not only documents but computer information and suchlike. ... (Sunrise Auto Ltd v Deputy Commissioner of Taxation (Cth) [1994] FCA 1296; (1994) 124 ALR 425 at 434.)

40. The Full Federal Court has described it as:

... writing [that] is meant to preserve, for an appreciable time, the memory or knowledge of a fact or an event, even in an informal, or unofficial, fashion with the object of subsequent retrieval of the information. ... (Sunrise Auto Ltd v Deputy Commissioner of Taxation (Cth) (1995) 133 ALR 274 at 287-288.)

41. That language is apt to include all the documents in issue in this case, including computer screens, assessments and letters. Notices of assessment may be referred to as evidence of the identity of the taxpayer who was assessed, and letters to the applicant record the fact, date and contents of official communications.
42. Next, the information to be corrected must be “personal information” about the applicant. That term is defined in s 4(1) of the FoI Act as information or an opinion (including information forming part of a database), whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. A person’s name is information about an individual whose identity can reasonably be ascertained from that information.
43. Next, a precondition for an application to amend is that the document has been used, is being used or is available for use by the agency “for an administrative purpose” (s 48(b)).
44. That phrase has also been interpreted broadly as including anything to do with the management of the agency and as extending to all internal activities: Re Slezankiewicz and Australian and Overseas Telecommunications Corporation [1992] AATA 204 at [43]- [47]. That definition can reasonably encompass all the documents in issue in this case. Even letters addressed to the applicant have to do with the management of the agency, involving as they do interactions with the taxpayer that may have legal consequences.
45. The next question is whether the records are incomplete, incorrect or out of date. The applicant did not argue that the main computer screen (Exhibit R2, annexure A) suffered from any of those defects, and conceded that some of the records were correct. The ones she said were incorrect were the subsidiary screens (T pp13-20 and attachment A, filed after the hearing) and the form of her name used in correspondence. She particularly took exception to notices of assessment as they could potentially be used as proof of identity.
46. The extent to which statements of fact may be regarded as incorrect depends, however, on the context in which they are recorded. For example, if a document simply purports to provide a record of a meeting, it may be described as “incorrect” only to the extent that it provides an inaccurate account of the meeting: Re Scrivanich and Australian Taxation Office (1983) 5 ALN N299.
47. The subsidiary screens contain information about the applicant’s name that is taken from the main record and derives its validity from it. They are used for working purposes, not for identification or authentication. Viewed in that context they cannot be regarded as incorrect, or indeed incomplete, simply because they are coded in such a way as to transmit only part of the information, just as they are also coded not to reproduce the applicant’s address or date of birth.
48. It is standard practice in Australia and many similar countries to abbreviate first and middle names or to omit middle names altogether when the purpose at hand does not dictate the use of more detailed information. The evidence did not suggest that so doing would make documents produced for those less crucial purposes incorrect or incomplete.
49. The applicant did not suggest that any of the records were out of date.
50. The next question to consider is whether the information can be described as “misleading” within the meaning of ss 48 to 50. The term “misleading” has been interpreted as meaning “leading astray, causing to go wrong, giving the wrong impression”: Re Page and Director-General of Social Security (1984) 6 ALN N171 at 173. Information may be misleading where it results from bias, mistake, forgetfulness or similar reasons: Re Jacobs and Department of Defence (1988) 15 ALD 645.
51. The applicant produced no evidence on this point but related from the bar table an occasion when, while performing a transaction at her bank, she had been asked by the teller whether she was the Stephanie Avery who lived at Fairfield, which was not the applicant’s residence. That, she submitted, showed that the use of abbreviated forms of her name had the potential to mislead.
52. That does not seem to me to follow, first, because the transaction did not apparently involve the use of any ATO records or documents and, secondly, nobody was misled on that occasion. The teller asked her whether she was the other Stephanie Avery and was therefore able to establish her correct identity by checking the address. Presumably that step was taken because many people have similar names, especially when routinely abbreviated for everyday purposes, as is commonly done. Identities are frequently checked in the context of retail and service transactions by reference to an address. In health care settings, it appears to be standard practice to ask patients to give their date of birth as a further check.
53. Whether a document is misleading is to be considered in the context of the class of persons who would have lawful access to the documents, not the world at large: Re Mulder and Department of Immigration and Multicultural and Indigenous Affairs [2002] AATA 1347; (2002) 36 AAR 410 at 424.
54. Mr Allen’s evidence was that the audience for the computer screens and subsidiary screens was restricted to ATO staff, who were unlikely to be misled by the use of the abbreviated form of the name as they had access to the primary identification page. The audience for tax assessments and similar documents would also include the taxpayer personally, and the taxpayer is unlikely to be misled. Similarly, the audience for the address on a letter is the addressee and, to a lesser extent, the postal employee handling it. Neither is likely to be misled by the use of an abbreviated form of the name. The addressee need not use the letter for identification purposes unless he or she wishes.
55. The fact that an assessment may be used as proof of identity under New South Wales statutory procedures (Exhibit A1) does not lead to the conclusion that an abbreviated form of the name used on the assessment is likely to be misleading. In the schedule of proof of identity documents, a tax assessment notice is ranked only third out of four possible grades of identification value. That being so there might be some purposes at least for which it would need to be supplemented by other documents.
56. The applicant's assertion that it should be possible to use any of the documents listed in Exhibit A1 to prove her identity is not supported by the contents of that schedule itself. Other documents listed on the schedule, such as Medicare cards, utility bills and rate notices do not normally show a person’s full legal name.
57. I therefore find that the documents in issue do not satisfy the cumulative threshold requirements for amendment of a record laid down by ss 48 to 50.
58. As those requirements are prerequisites to the exercise of the power, the discretion in s 50(1) is not activated.
59. In light of that decision, the exercise of the discretion does not arise in this case. Nevertheless, in view of the way the case was argued, I should indicate that if it were necessary to exercise the discretion, I would decide in favour of the respondent.
60. As Mr Allen's evidence indicated, under existing procedures the respondent can make use of the applicant’s full legal name in the form she prefers on correspondence that is manually generated. The position taken by the respondent is thus not the result of any a priori inflexibility or obstructiveness. The respondent is able to accommodate the applicant’s preferences and does so wherever the existing systems permit. There is also no reason to think that the respondent is in some way seeking to change the applicant's name without permission.
61. Further, in very complex systems such as computer applications, it can be difficult or impossible to change one element in the system without also changing many others, often in undesired ways. The present system does not provide for the outcomes primarily desired by the applicant and would need significant modification, a process that would entail risk analysis, program, testing and impact analysis on other existing systems. Mr Allen’s evidence was that the process would require, among other things, an enormous body of business rules to provide for the ATO’s entire client base. The names of estates and trusts would present special demands and the rules would need to account for long names. Massive resource outlays would be required at a time when the ATO is currently engaged in a large-scale transition to new processing systems extending over several years. The changes required would shift resources currently being employed on that and other projects in order to meet the additional demands involved, for no useful result: Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 410 at [24(h)]; Re Bashari at [72].
62. The alterations to the current ATO system that the applicant’s preferences would require would, on the evidence, also have a detrimental effect on name searching, matching and validation, which are based on the existing standard and AIS name structure.
63. Questions of privacy would also be raised. Information currently in the respondent’s possession suggests that most taxpayers would prefer to limit the amount of information displayed on envelopes and similar communications. Altering existing patterns would be likely to generate more complaints than the present system. Further, as there are still limitations on the number of characters that can be displayed, taxpayers with names exceeding the limit that must be abbreviated might experience special dissatisfaction if the system were altered in the way that the applicant's preferences require.
64. The decision under review is therefore affirmed.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Professor G D Walker, Deputy President

Signed: .......................[sgd].....................................................

Adele Veness, Associate

Date of Hearing: 28 May 2009

Date of Decision: 30 July 2009

Solicitor for the Applicant: Self-represented

Solicitor for the Respondent: Ms K Hooper, DLA Phillips Fox