Case 000141. Application to have two increment forms amended - section 17 - standard of proof.

Case Summary

Facts

The applicant is an employee of the Department of Health and Children. Following an application to the Department under the FOI Act, she was given access to four increment forms, completed in 1996, 1997, 1998 and 1999. Each increment assessed her work performance during the preceding year. In the increment forms completed in 1996 and 1997 she received a rating of "Above Average" in respect of the five areas in which she was assessed - "Work Output"; "Quality of Work"; "Effectiveness with Others"; "General Conduct" and "Overall Rating". The increment form completed in 1998 rated her as "Below Average" under the heading of "Effectiveness with Others" and as "Average" in the other four categories. The increment form completed in 1999 gave her a rating of "Average" under each of the five headings. Ms X then made a request under section 17 of the FOI Act to have the increment forms for 1998 and 1999 amended. The Department refused to grant her request. Ms X then made an application to the Information Commissioner for a review of that decision.

Decision

The Commissioner found that the applicant had provided evidence which demonstrated that the 1998 form was incomplete. This was on the basis that the person assessing the applicant's performance had not consulted with the applicant's previous supervisor (for the first half of the year in question) and also that contrary, more favourable assessments of her performance during the period in question were not recorded on the forms. He found that the 1999 form was incomplete on the basis that the person reviewing the applicant's performance did not record other, more favourable views of the applicant's work performance in the period under review. The Commissioner directed that a statement be attached to each form outlining the respects in which he had found the increment forms to be incomplete.

Date of Decision: 23.07.2001

Our Reference: 000141

23.07.2001

Ms X

Dear Ms X,

I refer to your application under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the Department of Health and Children (the Department) on your FOI application of 14 June 1999. Your application was made under section 17 of the FOI Act and in it you sought the amendment of two work assessment forms which were completed in 1998 and 1999 for increment purposes. Please accept my apologies for the delay which has arisen in dealing with your case. Unfortunately, due to pressure of work I have not been able to deal with cases as quickly as I would wish.

Background

Following an application to the Department under the FOI Act, you were given access to four increment forms, completed in 1996, 1997, 1998 and 1999; each form assessed your work performance during the preceding year. In the increment forms completed in 1996 and 1997 you received a rating of "Above Average" in respect of the five areas in which you were assessed - "Work Output"; "Quality of Work"; "Effectiveness with Others"; "General Conduct" and "Overall Rating". The increment form completed in 1998 (the 1998 form) gave you a rating of "Below Average" under the heading of "Effectiveness with Others" and a rating of "Average" in the other four categories. The increment form completed in 1999 (the 1999 form) gave you a rating of "Average" under each of the five headings.

You wrote to the Department on 14 June 1999 contending that the 1998 and 1999 forms were incorrect and misleading and you applied to have these forms amended under section 17 of the FOI Act so that they would give "an accurate account" of your performance.

The Department reply of 12 July 1999 said that the "increment forms on file are a record of the assessments made", that they are evidential in nature and that it would be "inappropriate to replace or amend these records". It also told you that in accordance with section 17(4) of the Act, a copy of your application had been attached to the forms in question. This decision was upheld at internal review and on 20 March 2000 you made an application to my Office for a review of the Department's decision.

Ms Anne Moran, Investigator in my Office, wrote to the Department on 6 June 2001 setting out her preliminary views on the case and inviting the Department to respond to these views. The Department made a number of written responses to Ms. Moran's letter which included statements from Ms. Mary McLoughlin and Mr. Chris Fitzgerald who were the assessors for the 1998 and 1999 forms respectively. In carrying out my review, I have taken account of all the submissions, statements and documentary evidence provided both by yourself and by the Department. I have also had regard to the provisions of the FOI Act.

It is clear from the material provided to me in the course of this review that your section 17 application arises within a context of serious disagreement and conflict between yourself (supported perhaps by some colleagues) and the Department, your employer. While I cannot place any restrictions as to the use (if any) which may be made of my review decision, it is important to say that this review has been conducted strictly within the terms of section 17 of the FOI Act. It would be a mistake for any of the parties to seek to attach any wider significance to this review decision.

Scope of Review

My review is confined solely to the issue of whether or not you have provided sufficient evidence to support your contention that the opinions expressed in the 1998 and 1999 increment forms are so flawed as to warrant correction, or the addition of a statement, as provided for in section 17 of the FOI Act. I feel it is important to state clearly that my review does not involve the forming of any judgement on my part as to the actual quality of your work performance during the years under review.

Findings

Section 17 of the FOI Act states that

"Where personal information in a record held by a public body is incomplete, incorrect or misleading, the head of the body shall, on application to him or her in that behalf, ... by the individual to whom the information relates, amend the record —

(i) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,

(ii) by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate,
or

(iii) by deleting the information from it."

I am satisfied that the expressions of opinion in the 1998 and 1999 forms in relation to your work performance do constitute personal information in relation to you and that, accordingly, section 17 of the FOI Act may be invoked in relation to this personal information. The Department has not at any stage disputed that the opinions expressed in the forms do constitute personal information in relation to you. Accordingly, it is not necessary to consider this aspect further.

I have already outlined - in my decision in Case No. 98158 (Mrs ABZ and the Office of the Revenue Commissioners), [published 3 August 2000] - how an application under section 17 might succeed. In that decision, I found that while the expression of an opinion in relation to an individual can constitute personal information about that individual, and thus may attract a right of amendment under section 17, this right does not necessarily "permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 17 is made". I found that the "onus of proof in such cases lies with the applicant as the party asserting that the information is incomplete, incorrect or misleading" and that the standard of proof in such cases is that of the "balance of probabilities". I went on to describe what I would expect the applicant to provide in terms of proof, in that

"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."

Ms Anne Moran, Investigator, gave her preliminary views on your application in her letter to you of 4 December 2000. In response, you provided evidence in support of your claim that the opinions expressed in the increment forms for 1998 and 1999 are incorrect and misleading. For the sake of clarity, I will deal with each increment form separately. First, however, some comment on the increment forms in general is necessary.

Increment Forms - General

The purpose of the increment form is to certify "that this officer's performance during the year merits an increment". The form (T. Gen. 3) is a standard one in use across the civil service. The background to the award of increments for civil servants is set out in detail in Department of Finance Circular 9/87 issued on 17 September 1987. It is clear from the Circular that the decision on the award of an increment is to be based on an assessment of the officer's work performance throughout the year under review. Paragraph 3 of the Circular says:

"The onus is on individual officers to show that their performance during the year merits an increment."

Paragraph 6 quotes from the White Paper Serving the Country Better which says that "increments will have to be earned by positively favourable assessments of performance and commitment throughout the year".

Another relevant point is that the assessment contained in the increment form should be broadly consistent with other assessments conducted in other contexts. Attention was drawn to this in the Department of Finance letter of 26 April 1988 which provided clarification on the potential overlap of the increment form assessment and other work assessment measures such as appraisal schemes. In this letter, the Department of Finance clarified that decisions in relation to increments should be made "by reference to the report on overall work performance provided for on the increment form". However this letter points out that, in conducting the increment form assessment "the need for consistency between the increment report and any other reports on work performance should not be overlooked".

All of this suggests that managers completing such increment forms should be conscious (1) of the need to ensure that the assessment takes account of the views of all of the managers of the assessee during the assessment year (where the current manager has not been the only manager during that year) and (2) of the need to ensure consistency with other current assessments of the work performance of the assessee.

Increment Form 1998

The increment form in question appears to cover the period March 1997 to March 1998, although the form itself does not explicitly record the exact period to which it refers. During the time under review, you worked in the Blood Policy Division of the Department until August 1997 when you were transferred into the Women's Health Unit. The increment form was signed by Ms Mary McLoughlin (as your immediate superior officer) in the Women's Health Unit. You say you believe Ms. McLoughlin was transferred out of the Women's Health Unit in December 1997; however Ms. McLoughlin herself says this did not happen until the end of February 1998. In the circumstances, it seems correct to accept Ms. McLoughlin's statement. This means that Ms. McLoughlin was your manager for the six month period August 1997 - February 1998. In her statement to my Office, Ms. McLoughlin expresses the view that this six month period provided a sufficient basis for her to form a view as to your work performance and that it was not necessary for her to consult with your previous manager before completing the increment form.

In her statement to my Office, Ms. McLoughlin set out a detailed basis for the assessment she made of your work performance under the headings provided on the increment form. I see no basis on which I might seek to disagree with, or replace, the opinions she formed and, accordingly, I do not do so. However, I find that Ms. McLoughlin's statement of opinion is incomplete in that the assessment purports to be one covering the year under review whereas, on her own admission, her assessment necessarily relates only to the six month period August 1997 - February 1998. For the assessment to be complete, it would have been necessary for Ms. McLoughlin to have consulted with, and reflected the views of, your manager during the first six months of the assessment period. Given that your manager for the earlier half of the year had, in completing the 1997 increment form, assessed you as being "Above Average" in all relevant categories, and given that the (different) manager who completed the 1996 increment form had also assessed you as being "Above Average" in all relevant categories, I believe there was an even greater than usual onus on Ms. McLoughlin to have consulted with the person who was your manager for the first six months of the assessment year.

The issue of achieving consistency with assessments of your work performance, other than the increment assessment, must also be considered. I accept that Ms. McLoughlin would not necessarily be bound by other current assessments. I also accept that the circumstances of your dispute with the Department at the time must have created a very difficult situation for Ms. McLoughlin in her attempt to make an assessment which reflected the realities of the situation. Furthermore, the format of the increment form (T.Gen.3) is not at all helpful in a situation where the opinions to be recorded are complex and/or qualified. Overall, and in fairness to Ms. McLoughlin, I must say that her task was not made easy either by the difficult background created by your dispute with the Department or by the inadequacy of the actual increment form to be completed. Nevertheless, I find that her assessment is incomplete to the extent that it fails to acknowledge the existence of views as to your performance which rank that performance as being very high indeed.

In writing to the Department on 6 June 2001, Ms. Anne Moran of my staff set out details of views in relation to your work performance expressed by the then Secretary General of the Department (a) in the course of evidence in the High Court in November 1998 and (b) in correspondence with the Department of Finance in July 1997. I feel it is not necessary to repeat these views in detail in this decision letter given that all the parties are fully aware of these details. The then Secretary General expressed the view that your work performance was exceptional and the clear inference is that, in terms of the categories used in the increment form, your performance would be rated as "Above Average". It is clear that these views of the then Secretary General applied to your work performance during about five of the 12 months covered by the 1998 increment form.

Whereas Ms. McLoughlin was not required to accept the opinions either of the Secretary General or of your previous manager, I find that the 1998 increment form is incomplete to the extent that it fails to convey the existence of a contrary view as to your work performance during the period under review.

Increment Form 1999

This form appears to cover the period March 1998 to March 1999 though, again, the exact period under review is not noted on the form. The form was signed by Mr Chris Fitzgerald as your immediate superior officer throughout the period under review. As Mr. Fitzgerald was your manager throughout the review period, the question of his needing to consult any other manager does not arise. Mr. Fitzgerald has provided my Office with a detailed statement in relation to his completion of the increment assessment form. As noted earlier in relation to Ms. McLoughlin's assessment, I see no basis on which I might seek to disagree with, or replace, the opinions formed by Mr. Fitzgerald and, accordingly, I do not do so. In fairness to Mr. Fitzgerald, I must acknowledge that his position as your manager during the review year was inevitably made difficult by the fact of your on-going dispute with the Department which included a much publicised High Court action initiated by you. I accept Mr. Fitzgerald's statement that, in his working relationship with you, he took a conscious decision not to be influenced in any way by the contentious issues which surfaced in the context of your court action.

The question which arises in relation to the 1999 increment form is whether Mr. Fitzgerald's assessment is incomplete by virtue of failing to reflect the existence of other current assessments of your work performance which varied from his own. In this context, the other assessment of significance is that of Mr. Noel Usher, Principal Officer, Department of Health. In her letter of 6 June 2001 to the Department, Ms. Anne Moran of my Office referred extensively to the views conveyed by Mr. Usher to this Office in his letter of 20 February 2001. With Mr. Usher's consent, a copy of this letter was subsequently provided to the Department. As all parties are familiar with the details of Mr. Usher's letter, it is not necessary to repeat these details in this decision letter. The kernel of Mr. Usher's evidence is that, for all practical purposes, he was the senior officer with whom you "had the most official contact during the relevant period"; in support of this, he details the nature and extent of this contact. Mr. Usher says that, had be been asked, he would have had no hesitation "in confirming what the Secretary General himself was saying about Ms. X during 1998 i.e. that, by any standards, she was an exceptionally talented and dedicated officer". Mr. Usher also commented:

"As a former Personnel Officer in this Department I believe that it is unprecedented for an officer of Ms. X' s calibre and with her record to have been marked as an average officer. It is beyond comprehension. Therefore I can only conclude that these increment forms are indicative of the ongoing campaign of victimisation perpetrated by a very small number of officers against Ms. X "

Mr. Fitzgerald disputes much of the evidence of Mr. Usher, particularly the contention that you were "under-occupied" in the Women's Health Unit. Clearly, there are significant differences of view at a senior level within the Department in relation to your work performance during the year ending March 1999. It would be entirely inappropriate, and indeed futile, for me as Information Commissioner to attempt to resolve these differences or to choose between the opposing views. However, it is a matter of fact that in relation to the year under review a senior officer of the Department, with whom you worked on a regular basis, was of opinion that your performance warranted a rating of "Above Average". It is equally a fact that the increment form completed by Mr. Fitzgerald does not reflect the existence of this view. Accordingly, I find that Mr. Fitzgerald's assessment is incomplete by reason of its failure to reflect the existence of another, more favourable, assessment.

Comment

My decision, as set out below, is to annul the decision of the Department on your application under section 17 of the FOI Act. I am satisfied that this is the decision required of me by the FOI Act. However, I have no reason to believe that, in relation to these assessments, Ms. McLoughlin or Mr. Fitzgerald acted otherwise than in good faith and in accordance with what they understood to be standard practice. It is worth noting though that, in relation to each of the aspects of work performance being assessed, the increment assessment form does contain the heading "Remarks" and this heading does allow for any special factors affecting the various ratings to be recorded.

A situation such as was presented in your case is, fortunately, quite untypical. While this decision may prompt some reconsideration of how increment assessment forms should be completed, it is not intended to disturb the normal pattern of staff/management relations within the civil service which, in the normal course, are based on mutual respect, courtesy and a degree of informality.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby annul the decision of the Department of Health and Children of 12 July 1999. In place of that decision, I hereby decide that the 1998 and 1999 increment forms be amended by the addition to the forms of statements specifying the manner in which the information in the particular form is incomplete. In the case of the 1998 increment form, the statement to be added shall specify that the information therein is incomplete (a) by virtue of the failure of the certifying officer to consult with the officer who was your manager during the first six months of the assessment period and (b) by virtue of the failure of the certifying officer to reflect the existence of other current assessments of your work performance which varied from her own. In the case of the 1999 increment form, the statement to be added shall specify that the information therein is incomplete by virtue of the failure of the certifying officer to reflect the existence of other current assessments of your work performance which varied from his own.

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