Can the Privacy Commissioner force a government department to add a note to my records if they refuse to change them?

The situation

I am living in Melbourne, Victoria, and I have been going through a very frustrating battle with a federal government agency regarding my personal records. Back in January 2023, I filed a formal request to have some incorrect information corrected in my file, but they refused. I then took it to a formal review process, and eventually, I even went through the steps to appeal it, but the decision stayed the same—they simply will not amend the actual document to fix the errors. Because they wouldn't budge, I lodged a formal complaint with the Privacy Commissioner about their refusal to update the details. After a long wait, the Commissioner actually investigated and issued a report last month recommending that the agency should amend the specific parts of my document that are wrong. However, it has now been over 60 days since the agency received that report, and they still haven't made any actual corrections to the text. They are just ignoring the recommendation. If the Commissioner still believes the records are wrong but the agency refuses to physically change the wording, is there any way the Commissioner can force them to at least add a formal note or a notation to the document explaining that the information is disputed?

Detailed Analysis

Based on the facts you provided, you appear to meet the specific requirements for the Commissioner to intervene further. You have already gone through a formal review and an appeal process regarding the incorrect information in your file. The Privacy Commissioner investigated and issued a report recommending that the agency amend your document^[1].

Because it has been more than 60 days since the agency received that report and they have not made the corrections, the Commissioner has a specific power under Section 35 of the Privacy Act 1988. The law states that if the Commissioner "still thinks that the agency should amend the document in a particular manner; and... is not satisfied that the agency has amended the document in that manner," they may take action^[1]. This means if the Commissioner still believes the errors exist and is unhappy that the agency hasn't fixed them, they can step in.

Specifically, the Commissioner can "direct the agency to add to the document an appropriate notation setting out particulars of the amendments of the document that the Commissioner thinks should be made"^[1]. A notation is a formal note or comment added to a record. This is a powerful tool because, unlike a recommendation, a direction is mandatory. The law is clear that "An agency shall comply with a direction given in accordance with subsection (1)"^[1]. This means the agency is legally required to add the note explaining that the information is disputed if the Commissioner issues that direction.

It is important to note that this specific power is tied to the process involving the Freedom of Information Act 1982 and the Commissioner's formal recommendations. Since you have already satisfied the 60-day waiting period, you are in a position to trigger this specific remedy.

Statutory Citations

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