Case 000072. Request for amendment of ratings and remarks contained in performance reports - section 17 - standard of proof required - request for statement of reasons for ratings and remarks and for non promotion - section 18 - whether section 18 applies to acts taken before the commencement of the FOI Act.

Case Summary

Facts

The requester applied to the Department of Arts, Heritage, Gaeltacht and the Islands to have the ratings and comments contained in three work performance reports relating to him amended. He also applied for a statement of reasons for the particular ratings given and comments made and for the Department's refusal to promote him in a particular competition. The Department refused to amend the performance reports and did not provide a statement of reasons in any great detail.

Decision

The Commissioner found that much of the evidence provided by the requester in support of his application for amendment of the work performance reports was anecdotal and that the Department had presented conflicting anecdotal evidence. The reports contained a manager's assessment of the requester's work performance under a number of specified headings as well as general comments concerning his work performance. The Commissioner decided that, in circumstances where contradictions arise as a result of differing but genuine interpretations of past events as opposed to an attempt by either party to the review to distort or misrepresent the facts to support their case, it would not be appropriate for him to accept one party's version of events to the detriment of the other unless there was compelling evidence requiring him to do so.

The Commissioner found all three reports to be flawed as a result of the failure of the certifying officer to rate no late attendances and no sick leave as "Excellent" under the headings of "Punctuality" and "Sick Leave". However, he found that the requester had not presented him with sufficient evidence to enable him to conclude that the ratings awarded under the remaining headings or the comments contained in the three reports were incomplete, incorrect or misleading.

The Commissioner found the acts identified by the requester were taken before the commencement of the FOI Act and had no continuing effect. He found that the Department was not required to provide the statement of reasons sought.

Date of Decision: 27.11.2001

Our Reference: 000072

27.11.2001

Mr Y

Dear Mr Y

I refer to your application on behalf of Mr X under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the Department of Arts, Heritage, Gaeltacht & the Islands ("the Department") relating to a request for amendment of three performance reports and for a statement of reasons for (a) his non-promotion to the position of Senior Wildlife Ranger in 1996 and (b) the ratings and remarks contained in the three performance reports.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to

• your correspondence with the Department,
• your correspondence with my Office, including your written submissions dated 9 November, 2000, 8 June, 2001, 1 August, 2001 and 12 November, 2001,
• your oral submissions on 8 March, 2001 and
• correspondence between the Department and my Office.

I have also examined the records held on Mr X's personnel file, including the three performance reports at issue.

Scope of Review

The Department decided to refuse to amend the three performance reports in question. In response to Mr X's request for statements of reasons, it indicated that (a) Mr X was not promoted as he did not obtain a high enough placing in the competition for promotion to Senior Wildlife Ranger to be offered a promotion and (b) the ratings contained in the three performance reports were based on the opinion of Mr X by his superior officer at the time.

Accordingly, my review is concerned solely with the question of whether the Department is justified in refusing your request for amendment of the three performance reports and whether the statement of reasons given by the Department is adequate for the purposes of section 18 of the FOI Act.

Findings

Section 17

Section 17 of the FOI Act provides a right of amendment of personal information relating to a requester contained in a record held by a public body where the information is incomplete, incorrect or misleading. I note that Mr Rafferty, in his letter of 24 October, 2000, explained to you that I have previously examined the application of section 17 in case number 98158 - Mrs ABZ and the Office of the Revenue Commissioners, and I also note that he subsequently provided you with a copy of that decision for your information. I explained in that decision that, in the absence of any express statement in the FOI Act, I take the view that the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect, or misleading, and the standard of proof required in such cases is that of "the balance of probabilities". I also explained that I am satisfied that the right of amendment of personal information includes the right of amendment of incomplete, incorrect or misleading opinions.

The three records which you are seeking to have amended are performance reports completed by Mr A of the Department in respect of Mr X for the periods 1/11/93 to 1/11/94, 1/11/94 to 1/11/95 and 11/11/96 to 10/11/97. The reports contain Mr A's assessment of Mr X's performance for the periods in question under eleven specified headings and also contain remarks by Mr A concerning Mr X's ability. It is clear, therefore, that you are, in effect, seeking to have Mr A's opinions, as set out in these records, amended.

As I explained in case number 98158, where amendment of an opinion is sought 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 other particular factor which renders the opinion dangerous to rely upon. It follows from this that I do not accept the Department's contention that as Mr A was the person who completed the performance reports at issue in this case then he is the only person who would be in a position to amend them.

Having examined your various submissions, it seems to me that your main argument is that Mr A's comments and ratings of Mr X are flawed because of the existence of bias or ill-will on Mr A's part. You also argue that the reports are flawed because of A's alleged lack of competence. I note that much of the evidence provided by Mr Xs in support of his case is anecdotal and that there are clear contradictions between that evidence and the responses given by the Department. On this point, I note your claim that many of the Department's responses are inaccurate and misleading and that you believe that the circumstances warrant the cross-examination of the Department on Oath regarding its submissions. However, it seems to me that the contradictions arise as a result of differing but genuine interpretations of past events as opposed to an attempt by either party to distort the facts to support their case and I do not deem it necessary or appropriate to cross examine either party on Oath. Furthermore, in these circumstances, I consider that it would not be appropriate for me to accept one party's version of events to the detriment of the other unless there is compelling evidence which requires me to do so. The question I must consider in this case, therefore, is whether the evidence you have submitted to support your arguments is sufficient to satisfy me that the information contained in the three performance reports you wish to have amended is, on balance, incomplete, incorrect or misleading.

Mr X provided numerous examples of situations and alleged incidents which, in his view, demonstrate the existence of ill-will or bias by Mr A against him. I note that Mr Rafferty put these allegations to the Department and that he also advised you of the Department's response to each and I feel it is unnecessary, therefore, for me to repeat in detail each of the allegations and the corresponding response of the Department in this decision letter. As I have indicated above, conflicting accounts of past events have clearly been given. I note, for example, that Mr X considers that his placing on a timetable location programme over a four year period by Mr A was unreasonable and unwarranted while Mr A's superior, Mr B, says that he agreed with Mr A at the time that Mr X's placing on such a program was justified. Mr B alleges that he and Mr A made periodic checks and found that Mr X was not in places he subsequently claimed to have patrolled. Similarly, in response to Mr X's allegation that he was not given an opportunity to attend conferences and that he was only invited to attend in 1996 after he made a formal complaint, the Department, while it does not dispute that Mr X was not invited to attend conferences prior to 1996, says that attendance at conferences is rotated around the rangers in no particular order, that everyone gets to go sooner or later, and that there is no particular significance in the order of attending. There are similar conflicts and/or differing interpretations of the significance of past events in each of the other allegations made by Mr X. However, no evidence has been presented to me which satisfies me that Mr X's evidence should be accepted over that of the Department. In the circumstances, I am not satisfied that the examples given by Mr X demonstrate the existence of ill-will or bias by Mr A against him.

I note, however, that there is one particular area of dispute between the Department and Mr X which appears to be of significant concern to Mr X, viz. the question of outstanding travelling and subsistence claims. Mr X claims that Mr A refused to pay various expenses and subsistence payments due to him over the years. The Department says the claims were formally investigated by Dr C whose report found Mr A's decisions to be entirely proper and in accordance with official instructions. In relation to the post 1997 claims, Mr X's supervisor, Mr D, says that journeys were claimed which involved travel outside the ranger's area which he did not approve and these claims would not normally be paid unless an emergency was involved. Mr D adds that no claim was made by Mr X for these journeys at any time. On some of the days claimed for travel in a private vehicle Mr X had the use of the Department's landrover and the claim would not have been paid. I note that Mr X argues that Dr C could not have properly investigated the matter given Mr A's failure to maintain records as required.

I should explain that the question of whether Mr X is entitled to payment of outstanding travelling and subsistence claims is not a matter that I, as Information Commissioner, can consider. This issue is only of relevance if it can be determined that Mr A's treatment of Mr X's claims for payment provides evidence of Mr A's bias or ill-will towards Mr X. To so determine, I would require evidence that Mr A incorrectly refused claims for payment without due reason. Such evidence might consist of copies of claim forms which clearly indicate that Mr A refused payment of a valid claim for travelling and expenses. Unsubstantiated evidence, such as a diary entry created by Mr X which indicates that he was in a particular location on a particular day or an unprocessed claim form, for example, would not suffice for this purpose. While I make no finding as to the validity of Mr X's claims, I must say that no evidence has been presented to me to enable me to conclude that there was bias or ill-will on the part of Mr A on this matter.

I have also examined the records held on Mr X's personnel file to determine if evidence exists to support your claim for amendment on the ground of the existence of bias or ill-will on Mr A's part. However, I have not been able to find such evidence. In fact, I note that Mr A completed an assessment form in respect of Mr X's application for promotion to the position of Senior Wildlife Ranger in January, 1996 on which he awarded four "B" ratings and four "C" ratings in respect of eight specific headings and a general overall rating of "B". It seems to me that this is a positive assessment and that Mr A's rating of Mr X's performance as set out in this record is not indicative of a person who is biased against Mr X. In the circumstances, I find that you have not satisfactorily shown that the three performance reports should be amended on the ground of the existence of bias or ill-will on Mr A's part.

As I have indicated above, you also argue that the performance reports are flawed because of Mr A's alleged lack of competence. I note that Mr X made a serious allegation about Mr A in questioning his competence to properly supervise and appraise Mr X. While the Department did not comment on the validity or otherwise of that allegation, it did however, indicate that it had no reason to question Mr A's competence to properly supervise and appraise Mr X. In my view, it is not necessary for the Department to refute the allegation because even if it were true, and I make no finding on the matter, it would not, of itself, provide evidence that Mr A was not competent to complete the performance reports in a fair and honest manner. In the circumstances, I find that you have not shown that Mr A lacked the appropriate level of competence to properly appraise Mr X.

I should explain that the fact that I am not satisfied that you have satisfactorily shown the existence of ill-will, bias or lack of competence on the part of Mr A does not, of itself, mean that the information contained in the three reports is not incomplete, incorrect or misleading. I have examined the various ratings and the remarks made by Mr Flynn which are contained in the reports to determine if there may be other grounds which would justify amendment. I have considered, for example, whether there is evidence to suggest that the ratings awarded are not supported by the factual information underlying those assessments. I have also considered Mr X's evidence in support of his view that he does not lack initiative, as suggested by Mr A in his comments.

The ratings awarded are Mr A's assessment of Mr X's performance over a specified period in respect of specific skills identified in the reports, e.g. "ability to discharge the highest duties of the grade", "effort/attitude", etc. The ratings awarded range from fair to very good and the most common rating awarded is "average". Mr A maintains that, in his view, the assessments were fair and valid. My role in these circumstances does not involve the forming of any judgement on my part as to the actual quality of Mr X's work performance during the periods under review. Rather, it involves determining whether sufficient evidence has been presented to me to enable me to conclude that the ratings are so flawed as to warrant amendment. As you will note from my earlier findings, I have no reason to believe that Mr A completed these reports other than in a fair and honest manner. I also note that Mr B, Mr A's supervisor, indicates that he considered the assessments to be fair. While Mr B's agreement with the assessments does not, of itself, prove that the assessments were fair, it does, however, suggest to me that they were certainly not so unreasonable as to be incorrect or misleading. In the circumstances, I find that insufficient evidence has been presented to me to enable me to conclude that the ratings, with the exception of the ratings under the headings of "Punctuality" and "Sick Leave" which I will deal with separately, are, on balance, incomplete, incorrect or misleading.

Mr A rated your performance under the headings of "Punctuality" and "Sick Leave" as "Average" and "Very Good" respectively in the report covering the period from 1/11/93 to 1/11/94 even though the report clearly indicates that you had no late attendances or sick leave absences. Furthermore, no ratings are provided under these headings in the two later reports while, again, you are recorded as having no late attendances or sick leave absences. On the matter of punctuality, the Department says that the nature of the job does not require the officer to actually clock in and assumes that the rating of average in the 1993/94 report was based on the general time-keeping of Mr X. I note that Mr B indicates that there was no system of recording late attendance for rangers and that he considers the heading of "Punctuality" to be meaningless. On the matter of sick leave, the Department accepts that "nil" sick leave should receive a rating of "Excellent".

It seems to me that there is some confusion as to what is required of a supervisor in respect of rating staff under the headings of "Punctuality" and "Sick Leave". I understand that there is a lack of consistency across the civil service on this matter and that ratings are not always provided in respect of these headings. In my view, such headings do not necessarily require a subjective rating and a simple recording of the actual details in respect of the official concerned would be more appropriate. How does a supervisor decide, for example, if one day's sick leave should be rated as "Excellent", "Very Good", or simply "Average"? Nevertheless, the headings exist on the three forms in question and, in the absence of any specific instruction to do otherwise, require a rating. In these circumstances, it seems to me that a record of no late attendances or sick leave absences can only be regarded as "Excellent" as such a record cannot be improved upon. I find, therefore, that the report for the period 1993/94 is incorrect in so far as it contains a rating of "Average" under the heading of "Punctuality" and a rating of "Very Good" under the heading of "Sick Leave" as opposed to a heading of "Excellent" under both headings. I also find that the reports for the periods 1994/95 and 1996/97 are incomplete in so far as they have no rating under either heading and that the rating required in each of the two headings of both reports is "Excellent".

In the heading "Any other remarks" Mr A has added comments concerning an alleged lack of initiative on the part of Mr X in all three reports. Mr X argues that this comment is incorrect and in support of his argument he has provided various examples of instances which, in his view, shows that he displayed initiative during his career. During the course of the review, Mr Rafferty of my Office put these matters to the Department. In response, Mr B says that he agreed at the time with Mr A's comments. He says that the comments meant that whereas Mr X would carry out the duties he was clearly instructed in, he would not carry out extra duties which he could avoid. He says that the examples cited by Mr X were duties he was clearly and carefully instructed to do. He adds that the other rangers with whom Mr X subsequently competed for promotion did more and he believes that it is only just that this relative performance be recorded. Mr B considers that Mr A attempted at the time to indicate by his assessments that he had reservations about Mr X's abilities to perform more than the standard duties of the grade and hence was not sure of his capacity for a higher grade. He believes that this was fair by comparison with most of Mr A's other rangers.

I note that you claim that Mr B's comments contradict his views as expressed by him in his letter of 6 March, 1993 to Mr X when he advised Mr X that he appreciated his work and commitment. On this point, Mr B says that both he and Mr A would, from time to time, try to encourage Mr X by praising what he did well. He says that this positive re-inforcement is a standard part of human resource management and that it should not be taken out of context or used to imply that all other comments and actions by managers are invalid.

It seems to me that the examples you have provided show that you are capable of performing specific duties, a matter which does not appear to be in question. However, the question I must consider is whether these examples show that the statements "Very little initiative", "Mr X performs particular jobs quite well, but generally lacks initiative" and "Mr X, while having the ability to discharge specific duties, generally lacks initiative" in respect of X's performance during the periods in question are incomplete, incorrect or misleading. The Department's argument is that Mr X would not carry out duties over and above those he was instructed in. In my view, it is quite possible for an individual who generally possesses a reasonable degree of initiative not to show that initiative in certain circumstances, e.g. where the individual is lacking in motivation for some reason. It is clear that Mr A's remarks were made in the context of Mr X's work performance only. While he clearly disagrees with those remarks, the mere statement of a contrary opinion by Mr X or, indeed, any other individual is, of itself, an insufficient basis for concluding that the information is incomplete, incorrect or misleading. Furthermore, I am not satisfied that the examples given constitute substantive evidence which would allow me to conclude that Mr A's opinion concerning his alleged lack of initiative should be amended. This does not mean that I agree with the comments made. Rather, I find that I have not been presented with sufficient evidence to enable me to conclude that the comments are incomplete, incorrect or misleading.

Finally, in respect of your request for amendment of the performance reports, I have considered your argument that the performance report for the period 11/11/96 to 11/11/97 should not have been completed by Mr A as Mr D replaced him as Mr X's immediate supervisor from 22 January, 1997. The Department says that there is normally an arrangement between the supervisors concerned during a hand over year whereby a previous supervisor may be asked to complete an assessment if the current supervisor feels that s/he has had insufficient time in the supervisory role to complete a fair assessment and that the current supervisor may or may not add comments to that assessment. It says that in this case, Mr D was happy to leave the completion of the report to Mr A as he had not had a full year experience of Mr X's performance to report on. In response, you allege that Mr D had indicated that he was both surprised and concerned that Mr A was the person to complete the report in question. This allegation was put to Mr D who explains that his recollection of the report was that it was sent to Mr A by Personnel Department for his comments, that Mr A commented that this would be the last report he would do and that he (Mr D) did not object to this nor did he feel it was his responsibility under the circumstances. He says it was not the case that he was surprised and concerned as alleged.

The appropriateness, or otherwise, of the procedures operated by the Department in cases where the supervisor changes during the year is not a matter that I can examine. The only question I must consider is whether the fact that Mr A completed the 1996/97 report even though he was not Mr X's direct supervisor for ten months of the period in question means that the information contained in the report is incomplete, incorrect or misleading. On this point I understand that Mr A continued to work in the same office as Mr D and was in fact Mr D's supervisor. It seems to me therefore, that Mr A would not have been so removed as to be unaware of Mr X's performance. Given also that Mr D could have added his comments to the performance report completed by Mr A had he deemed it necessary to do so and that he did not do so, I am not satisfied that the contents of the report are incomplete, incorrect or misleading merely based on the fact that Mr A completed the report.

Section 18

Section 18 of the FOI Act provides that provides that a person who is affected by an act of a public body and has a material interest in a matter affected by the act or to which it relates is entitled to a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of that act. As you are aware, I decided in case number 98095 - Mr AAV and the Department of Social, Community and Family Affairs, that section 18 does not operate retrospectively and that, as a consequence, a public body cannot normally be required to give reasons for an act which took place prior to the commencement of the FOI Act, i.e. 21 April 1998. I also indicated that the position might be different were the act in question to have continuing effect after that date. I note that Mr Rafferty explained to you that, in my view, the types of decisions which could have continuing effect would mainly involve the withdrawal or refusal of a material benefit and are decisions which are capable of alteration or reversal at any point during the period in which the decision continues in effect.

In this case, you sought a statement of reasons for (a) the decision of the Department not to promote Mr X to the position of Senior Wildlife Ranger in 1996 and (b) the ratings and remarks contained in the three performance reports described above. It is clear that the acts/decision of the Department in both cases were taken before 21 April, 1998. It seems to me, therefore, that you are only entitled to a statement of reasons in accordance with section 18 of the FOI Act if you can show that the decisions/actions of the Department have continuing effect.

Senior Wildlife Ranger Competition:

The competition for the position of Senior Wildlife Ranger was completed in 1996. Your argument is that Mr X continues to suffer the penalty of not having been promoted. However, I do not consider the fact that a decision continues to have consequences to mean that it has "continuing effect" in the sense in which that term was employed in case number 98095. It is clear that the Department is not now in a position to reverse its decision in respect of the competition in question. I do not consider the decision of the Department not to promote Mr X to be a decision which continues in effect as that decision was, in effect, irreversible on completion of the competition. While there may have been consequences resulting from the decision, the decision itself does not continue in effect. Therefore, I find that Department is not required to provide a statement of reasons for its decision not to promote Mr X to the position of Senior Wildlife Ranger.

Performance Reports:

You argue that the mere fact that the three performance reports are held on Mr X's personnel file and continue to exist means that they have continuing effect. I do not agree that this is necessarily the case. It seems to me that the question of the use to which such reports, and these reports in particular, are put is relevant to the question of whether they have continuing effect.

On this point, the Department says that specific assessment forms ("T.Gen3" forms) are issued annually in order to evaluate and assess the performance of staff for the purposes of granting or not granting an annual increment of salary. It says that you had reached the maximum of your original salary scale a number of years ago and that performance reports such as the ones at issue in this case are completed in cases where increments are no longer payable. The Department says that such reports are not shown to interview boards for promotional competitions, that they would not be used or referred to in the event of a future competition and that the reports at issue in this case were not made available to the interview board in the 1996 competition for promotion to the position of Senior Wildlife Ranger.

I must say that, having examined the Department's response, the exact purpose of the performance reports is not entirely clear to me. While it is clear that a negative assessment form can adversely affect individuals who are being assessed for the purpose of determining whether an increment should be awarded, the situation pertaining to those individuals who are already on the maximum of the salary scales has not been satisfactorily explained by the Department. I would envisage a situation where a negative performance report might result in the Department taking measures to address perceived difficulties with an individual's performance. Nevertheless, I accept the Department's assertion that the reports at issue in this case have no continuing effect in that they will not be put to any future use. Furthermore, it seems to me that if the Department had deemed it necessary to take specific measures as a result of the contents of the reports, such measures would have been taken by now and I am not aware of any such measures having been taken in this case. I should add that as it is entirely possible for a person's performance to change over time, I am not convinced that negative past performance reports would generally have continuing effect where subsequent positive reports exist. In the circumstances, I am satisfied that the three performance reports in this case do not have continuing effect. I find, therefore, that the Department is not required to provide a statement of reasons in respect of the ratings and remarks contained in these reports.

Decision

Having carried out a review under section 34(2) of the FOI Act I hereby vary the decision of the Department. I direct that the 1993/94 performance report be amended by the addition to it of a statement specifying the manner in which the report is incorrect. The statement to be added shall specify that the information therein is incorrect by virtue of the failure of the certifying officer to rate your performance under the headings of "Punctuality" and "Sick Leave" as "Excellent" as opposed to "Average" and "Very Good" respectively.

In respect of the performance reports for the periods 1994/95 and 1996/97, I direct that both reports be amended by the addition of a statement to each specifying the manner in which the reports are incomplete. The statement to be added to each shall specify that the information therein is incomplete by virtue of the failure of the certifying officer to rate your performance under the headings of "Punctuality" and "Sick Leave" as "Excellent".

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 the decision. Such an appeal must be initiated not later than four weeks from the date of this letter. You should note that effect cannot be given to this decision before the expiration of this four week time limit.

Yours sincerely

Information Commissioner