Case 99260

Application under section 17 to have records deleted from a personnel file - onus of proof

Case Summary

Facts

The applicant applied to have two records deleted from her personnel file which contained assessments of her performance. The Board refused to delete the records concerned.

Decision

The Commissioner found that the Board was obliged to amend records only where there is firm evidence that the information contained in the records is incomplete, incorrect or misleading. He said that the applicant's submissions clearly indicated how she felt the opinions of the persons who assessed her were flawed. However, he found that the mere statement of a contrary opinion by the applicant, in the absence of specific evidence to support her contention that the information contained in the assessments was incomplete, incorrect or misleading, was not sufficient to warrant the granting of her request.

Date of Decision: 12.10.2000

Our Reference: 99260

12.10.2000

Dr. X

Dear Dr. X

I refer to your application for a review of the decision of the Eastern Health Board, dated 20 May 1999, to refuse to delete a reference from Dr. A and a report from Dr. B from your personnel file following a request from you to do so in accordance with the provisions of section 17 of the Freedom of Information Act.

I have now completed my review of that decision. I have decided to affirm the decision of the Health Board. My findings and decision are set out below.

Background

The only matter upon which I am required to decide in this case is whether or not the decision made by the Health Board to refuse to delete the assessments of Doctors A and B from your file was correct in accordance with the provisions of section 17 of the Freedom of Information Act, 1997.

I note that Mr. Tallon of this office wrote to you on 20 September last setting out comments I had made in an earlier decision in which I considered the provisions of section 17 of the Act in some detail. For your information, the decision to which Mr. Tallon referred has since been designated as Mrs. ABZ and the Office of the Revenue Commissioners.

Scope of Review

In arriving at my decision in this case I have had regard to the following matters :

• the provisions of section 17 of the Freedom of Information Act,
• the correspondence which passed between yourself and the Eastern Health Board in relation to your application,
• written submissions made by you to this office dated 7 June 1999, 26 June 1999, 2 August 1999, 4 August 1999, 7 November 1999 and 2 October 2000,
• a written submission from the Eastern Health Board dated 3 August 1999,
• the two records containing the information which were the subject of your application,
• the recommendation of my Investigator Mr. Tallon and the content of his letter to you of 20 September last.

Findings

Section 17 of the FOI Act allows for the amendment of records held by a public body in cases where personal information in a record is incomplete, inaccurate or misleading. The Act is silent on the question of where the onus of proof lies in such cases. I take the view that, in the absence of any express statement in the Act, the onus of proof lies with the applicant as the party asserting that the information is incorrect, incomplete or misleading. The Act is also silent as to the standard of proof which should apply. I take the view that the standard of proof required is that of the "balance of probabilities". It follows that an applicant, seeking to exercise the right of amendment under section 17, must show me that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

Turning to the specifics of your case, it is clear that you disagree strongly with the content of the assessments of Doctors A and B as recorded on your personnel file. Notwithstanding your disagreement with the views expressed, the Health Board is obliged to amend records only where there is firm evidence that the information contained in the records is incomplete, incorrect or misleading.

The assessment of whether certain factual information is incorrect is often a straightforward matter. However, in some cases the information at issue may contain an element of judgement, in the nature of opinion or estimate. In the case of Mrs. ABZ and the office of the Revenue Commissioners I held that:

"It is not my intention to present an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading". However, I would expect the applicant to satisfy me that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some particular factor which renders the opinion dangerous to rely upon."

Your submissions have provided me with a clear indication as to the strength of your feelings in relation to the views expressed by Doctors A and B and the manner as to how, in your view, the opinions as expressed are flawed. However, I am unable to identify anything in those submissions which would lead me to the conclusion that the information which you seek to have deleted is "incomplete, incorrect or misleading" information. While you may not agree with the judgements expressed in the records the mere statement of a contrary opinion by yourself is, of itself, an insufficient basis for concluding that the information should be amended under Section 17 of the Act. As I stated above, the onus of proof lies with the applicant as the party asserting the information is incomplete, incorrect or misleading. In the absence of specific evidence to support your contention that the information contained in the assessments is incomplete, incorrect or misleading I do not uphold your request for amendment of the records from your personnel file.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of the Eastern Health Board as notified to you in Ms. Mary Kelly's letter of 20 May 1999.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner