Case 000542. Application for amendment of records containing personal information - section 17 - whether the information held on file by the Department is personal information - section 2

Case Summary

Facts

The applicant sought the amendment, under section 17 of the Act, of 15 records which she considered to contain personal information about her that is "incorrect, misleading and incomplete". The Department rejected her entire application on the grounds that none of the 15 records contain personal information. This was disputed by the applicant on the basis that she is "personally named in all five documents ...... " and is "... both identified and identifiable in these documents and the specific sections of these documents, which I sought to have altered relate to me, personally".

Decision

The Commissioner affirmed the Department's decision but in doing so he provided some further insight into his findings in case number 99168 (Mr. Richard Oakley and the Office of the Houses of the Oireachtas) and, to some extent, further focused his understanding of personal information. This, in turn, represents a clarification of the definitions provided by Mr. Justice O'Neill in the case of EH and the Information Commissioner. In the Oakley case, the Commissioner found that, "generally speaking, the enactment of the FOI Act does not affect existing understandings that information about an individual of an essentially private character be treated as confidential".

In this decision, the Commissioner found that a number of the records are not personal because they do not contain information about the applicant that can be regarded as being of an essentially private character i.e. they do not contain information that the Department would, in the ordinary course of events, be expected to treat as confidential and therefore do not meet the primary requirement of personal information. The Commissioner clarified that the information must in the first instance meet the requirements of section 2 (a) or (b) and, in order to do this, the information must be of an essentially private character. In the case of records numbered 4, 5 and 6 which contain the views or opinions of a Department official about the applicant's actions in carrying out her official duties, the Commissioner found that these records do not contain personal information because they do not reveal anything essentially private about the applicant and therefore the Department would not, in the ordinary course of events, be expected to treat this as confidential. The Commissioner added that he does not believe that it was the intention of the Oireachtas that non-private records such as these should be protected on the basis that they are personal.

A further decision taken in this review that is noteworthy is the Commissioner's finding that certain records, such as numbers 4, 5 and 6, are inter-related and cannot be considered in isolation. The Commissioner found that the question of whether record number 4 contains personal information could only be evaluated in the context of the two sentences that follow i.e. records numbered 5 and 6 which meant that a finding that any one of the three records was personal would have meant that the other two would also have to be similarly regarded, given that there is a sufficiently substantial link between each.

Date of Decision: 10.02.2003

Our Reference: 000542

10.02.2003

Ms. X

Dear Ms. X

I refer to your application under the Freedom of Information (FOI) Act, 1997 for a review of the decision of [a particular] Department (the Department) following your request dated 15 October 2000, under section 17 of the FOI Act, for the amendment of certain records that you believe are "incorrect, misleading and incomplete". In total, you sought the amendment of 15 separate records contained in five separate documents marked A to E.

I have now completed my review of the Department's decision. In carrying out this review, I have had regard to the following;

• your original application and the Department's subsequent decision dated 15 November 2000,
• your internal review request dated 20 November 2000 and the Department's subsequent decision of 12 December 2000,
• your review application to this Office dated 14 December 2000,
• the Department's submissions to this Office dated 22 February 2002, 21 March 2002, 27 May 2002 and 11 July 2002,
• your submission dated 18 June 2002 in response to the preliminary views of Mr. Cathal Duffy, Investigator, as outlined in his letter to you dated 31 May 2002,
• your submission dated 10 August 2002 in response to Mr. Duffy's letter to you of 24 July last,
• your further submission dated 22 November 2002 in response to Mr. Duffy's e-mail to you of 5 November last, and
• the provisions of the FOI Act.

Background

In your original application to the Department dated 15 October 2000 you identified a total of 15 records from five separate documents (marked A to E) that you believe should be altered, in accordance with Section 17 of the Act, because they are "incorrect, misleading and incomplete". In the Department's decision letter of 15 November 2000 you were advised that Section 17 provides for the alteration of personal information only, and as the records in question could not "be regarded as personal information" your request to have these records altered or amended was refused.

In your subsequent application for an internal review dated 20 November 2000 you disputed this decision on the basis that, inter alia, you were "personally named in all five documents submitted ...... " and you were "... both identified and identifiable in these documents and the specific sections of these documents, which I sought to have altered relate to me, personally". Arising from the internal review that was carried out by the Department, the original decision was affirmed on 12 December 2000. You subsequently requested this Office to carry out a review and your application in this regard was formally accepted on 2 May 2001.

The 15 records at issue in this review are contained amongst five separate documents which you marked A to E in your original application. The following is a description of each document and I have given a reference number to each record (extract) contained therein that you have sought amendment to.

Document ASubmission of 25 March 1999 from Department Official A to Department Officials B and C .:

Record number 1: Section 1.2 - Second Sentence

" " 2: Sections 2.7 - Third Sentence to end of First Sentence of 2.8

" " 3: Section 2.8 - Second Sentence

" " 4: Section 4.3 - First Sentence

" " 5: Section 4.3 - Second Sentence

" " 6: Section 4.3 - Third Sentence

" " 7: Section 4.3 - Final Sentence

Document BSubmission of 13 July 1999 from Department Official A to Department Official C.:

Record number 8: Page 1, Paragraph 5 - Last Sentence

" " 9: Page 1, Paragraph 7 - First Sentence

" " 10: Page 2, Paragraph 3

" " 11: Page 2, Paragraph 4

Document CSubmission of 16 July 1999 from Department Official C to Department Official D.:

Record number 12: Paragraph 4

Document DSubmission of 22 July 1999 from Department Official A to Department Official E. :

Record number 13: Paragraph 4 - Third Sentence

Document E "File Note" dated 30 July 1999 written by Department Official A on a hard copy of an e-mail he received from you dated 13 May 1999. A further document written by Department Official A dated 31 March 1999, also entitled "File Note", is attached.:

Record number 14: First File Note of 30/7/99

" " 15: Second File Note of 31/3/99

Scope of Review

The initial focus of this review is concerned with the question of whether the Department was correct in deciding that none of the records at issue contain personal information. Arising from correspondence between this Office and the Department, the latter conceded in its submission dated 27 May 2002 that records numbered 2 and 3 both contain personal information and are therefore valid section 17 applications. However, the Department rejected Mr. Duffy's preliminary view that records numbered 5, 10, 14 and 15 also contain personal information. In your submission dated 18 June 2002, in response to Mr. Duffy's preliminary views regarding personal information, I note that you accepted his preliminary view in relation to all records apart from numbers 4 and 6 which you believe contain personal information.

The first decision that I have to make in relation to this review is to determine which records contain personal information and, having done so, I must then consider your application for the amendment of those records, if any, that I find contain personal information. In this regard, I have received submissions from both you and the Department in relation to the six records identified by Mr. Duffy, in his preliminary views letter, as containing personal information viz. records numbers 2, 3, 5, 10, 14 and 15. As you are aware from Mr. Duffy's letter to you dated 24 July last, the Department rejected your application for amendment of these six records for reasons that were explained. Your submission dated 10 August last provided your response to the Department's decision.

Findings

Re: Personal Information

Section 17 of the FOI Act provides that where personal information in a record held by a public body is incomplete, incorrect or misleading, the record shall be amended;

"by altering it so as to make the information complete or correct or not misleading, as may be appropriate, 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 by deleting the information from it" [Section 17(1)(i), (ii) and (iii)].

As Mr. Duffy advised you in his letter dated 31 May 2001, personal information is defined in section 2 of the Act as information about an identifiable individual that;

"(a) would in the ordinary course of events be known only to the individual or members of the family or friends of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential."

Section 2 also contains a lists of twelve specific types of information which, without prejudice to the generality of the foregoing, are regarded as personal including;

".... (iii) information relating to the employment or employment history of an individual, (iv) information relating to the individual in a record falling within section 6(6)(a), and .... (xii) the views or opinions of another person about the individual,".

Section 6(6)(a) defines information relating to an individual as;

"relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member".

However, section 2(I) of the Act provides that where an individual is employed by a public body the following is not regarded as personal information in relation to that individual; the person's name, information relating to the position held, the terms and conditions of employment and anything written or recorded by that person in the course of the performance of his or her duties.

Apart from the above definitions of personal information, case law also elucidates the definitions of personal information provided by the Act. As you are aware, the Act provides a right of access to both pre- and post-commencement records which relate to personal information. This right of access is of course subject to the other provisions of the Act but a recently issued High Court judgement clarified the position concerning the type of records which relate to personal information.

In the case of EH and the Information Commissioner, O'Neill J. held that the test to be applied to determine whether or not a record "relates to" is ...... "whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question". Where a doubt or ambiguity exists, as to the connection of the record to the requester, a consideration of factors such as the circumstances in which the record was created, the purpose for which the record was created and whether it was created with the affairs of a particular individual in mind, may, inter alia, assist in determining "whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question". The Judge held that records containing an express reference to the requester, however insubstantial or trivial, clearly relate to personal information about the requester. Further, he held that where a record contains no express reference to the requester a substantial link will be established if the record relates to something in which the requester has a substantial interest.

It is in the context of the foregoing definitions and understandings of personal information that I will now outline my findings in relation to each of the records as to whether they contain personal information and are therefore valid section 17 applications.

In this regard, I note that you stated, in your reply of 18 June 2002 to Mr. Duffy's preliminary views letter of 31 May 2002, that you were happy to withdraw your section 17 application in respects of records numbered 1, 7, 8, 9, 11, 12 and 13. Notwithstanding this fact, I have nevertheless examined these seven records and I am satisfied that Mr. Duffy's view that they do not contain personal information is correct.

In these circumstances, I must now decide whether records numbered 2, 3, 4, 5, 6, 10, 14 and 15 contain personal information.

Records numbered 2 and 3

I note that in its response of 27 May 2002 to Mr. Duffy's preliminary views letter, the Department conceded that these two records contain personal information. However, before I can make any decision on your section 17 application in respect of these two records, I must satisfy myself that the Department was correct to accept that these records contain personal information.

Having considered the content of these records, I note that they both relate to matters concerning [the applicant's particular employment]. Having regard to section 2(I) of the Act, I find that these records do not contain personal information because they relate to matters concerning the terms upon which you were employed in the position of [details of particular position deleted]. Accordingly, I find that the Department's original decision that these two records do not contain personal information is correct.

Records numbered 4, 5 and 6

In his preliminary views letter to you dated 31 May 2002 Mr. Duffy stated, in relation to record number 4, that one of the arguments made by Department Official A in favour of [a proposal concerning the location of the applicant's place of employment]. In Mr. Duffy's view, Department Official A was commenting on how [the particular] post is perceived and therefore, Department Official A's opinion in relation to the post could not be regarded as personal information.

In your reply to Mr. Duffy dated 18 June 2002 you disputed his preliminary view on the basis of [the nature of the applicant's employment relationship with the Department]. Taken on its own, the sentence clearly relates to the position or functions of [applicant's job]. I believe that all three sentences are inter-related and cannot be viewed in isolation. It follows, therefore, that the question of whether record number 4 contains personal information can only be taken in the context of the two sentences that follow i.e. records numbered 5 and 6 which, having regard the above mentioned High Court ruling, means that a decision that any one of these three records is personal would mean that the other two should be similarly regarded as there is a sufficiently substantial link between each. This effectively means that my decision, on the personal information issue, will be taken in the context of the following content of paragraph 4.3 of document A;

(This extract has been deleted in order to protect the identity of the applicant.)

In considering the question of whether the above should be regarded as personal information, I have had regard to the content of section 2 of the Act insofar as it requires that, for information to be treated as personal, it must be about an identifiable individual that "(a) would in the ordinary course of events be known only to the individual or members of the family or friends of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential". As records numbered 4, 5 and 6 clearly do not contain the type of information that would be known only to you or members of your family or friends, the question that I must consider is whether the information contained therein is held by the Department on the understanding that it would be treated by it as confidential. In this context, I have also had regard to my decision in Case Number 99168 (Mr. Richard Oakley and the Office of the Houses of the Oireachtas - see www.oic.ie) where I found that;

"[m]any, if not all, of the types of information referred to in the list of items (i) to (xii) [in the definition of personal information] were understood by the parties to be confidential in the past .... because society expected (and still expects) these matters to be treated as confidential .... Generally speaking, the enactment of the FOI Act does not affect existing understandings that information about an individual of an essentially private character be treated as confidential".

Having examined the content and context of records numbered 4, 5 and 6 and having regard to my decision in the above mentioned case, it is clear to me that these three records do not contain information about you that can be regarded as being of an essentially private character. Accordingly, I am satisfied that these three records do not contain personal information. The reason that I have reached this conclusion is because none of the three records contains information that the Department would, in the ordinary course of events, be expected to treat as confidential i.e. there is nothing in the records that reveals anything essentially private about you. Whilst the records in question do contain the views or opinions of Department Official A about [the actions of the applicant at particular meetings] and how your position as [applicant's job] is perceived by third parties, I do not believe these views or opinions contain anything of an essentially private character about you in that his comments concern matters relating to how he believes third parties view [the particular] post. I do not believe that it was the intention of the Oireachtas that non-private records such as these should be protected on the basis that they are personal. I believe that it was intended that records containing the views or opinions of one individual about another would be treated as personal insofar as they refer to matters relating to, say for example, their perception of the ability and competency of the individual as opposed to records such as these which contain an account of [certain actions taken by applicant at particular meetings] or about how the post you hold is perceived by those third parties. Accordingly, I do not believe that records numbered 4, 5 and 6 meet the definition of personal information provided by section 2(xii) notwithstanding the fact that, in any event, they do not meet the primary requirement of personal information provided at section 2 (a) or (b).

In the case of these three records, I am satisfied that they contain information relating to the [particular] service you were providing. For this reason, I do not believe that records numbered 4, 5 and 6 could be regarded as personal information even if they had met the primary requirement of personal information provided by section 2 (a) or (b).

Record number 10

This record contains references to actions taken by your trade union on your behalf. In his preliminary views letter of 31 May last, Mr. Duffy pointed out that apart from the first sentence, there is, throughout this record, either a reference to you or at the very least a link established between the content of the record and matters in which you have a substantial interest. In this record, Department Official A expressed his view that you and/or the union acting on your behalf took certain tactical courses of action in order to secure [a particular outcome].

In its submission dated 27 May last, the Department disputed Mr. Duffy's preliminary view and maintained that this record should be treated similarly to those at 8, 9 and 11 which had not been regarded as personal information by Mr. Duffy.

Having considered the content of this record, I am satisfied that it does not contain personal information because it relates to matters concerning the background, as understood by Department Official A to the Labour Court hearing which was sought by your union in order to deal with [a particular issue]. Accordingly, on the basis of section 2(I) of the Act, I find that this record does not contain personal information.

Record number 14

Record number 14 (which you identified in your original application as the "First File Note") is an annotation written by Department Official A on 30 July 1999 on a hard copy of an e-mail circulated by you to [a particular committee on a particular date]. In his preliminary views letter of 31 May last, Mr. Duffy indicated that he felt that this record contains personal information on the basis that section 2(xii) of the Act provides that "the views or opinions of another person about the individual" shall be regarded as personal information.

In its submission of 11 July 2002 the Department disputed Mr. Duffy's preliminary view and maintained that this record does not contain personal information on the basis that the record does not include the views or opinions of Department Official A about you personally but does include comments made by the author about your actions when engaged in official duties.

Having examined the record in question, I am satisfied that it is a record that meets the example of personal information provided by section 2(xii) of the Act i.e. it is an expression of the views or opinions of a Department official regarding your performance of official duties in your capacity as [applicant's job]. However, similar to the situation outlined in respect of records numbered 4, 5 and 6 above, I must establish whether this record meets the primary requirement of personal information, as per section 2 (a) or (b). I have therefore considered this particular record in the context of whether its content would, in the ordinary course of events, be known only to you or to members of your family or friends, or is held by the Department on the understanding that it would be treated by it as confidential. The same issues that arose in the case of records numbered 4, 5 and 6 must also be considered in this instance.

In this regard, it is clear to me that record number 14 could not be regarded as containing the type of information that would be known only to you or to members of your family or friends and therefore the question that I must consider is whether the information is held by the Department on the understanding that it would be treated by it as confidential. Having considered the content of this record and its context, I am satisfied that it does not contain personal information. The reason that I have reached this conclusion is because the Department would not, in the ordinary course of events, be expected to treat the content of this record as confidential i.e. this record is a commentary on events, as perceived by Department Official A [at a particular meeting on a particular date] and there is nothing in this record that reveals anything about you that is of an essentially private character. The content of this record, insofar as it relates to you, concerns your actions, in your official capacity as [applicant's job] at the particular meeting and accordingly I find that this does not meet my understanding of personal information.

Record number 15

This is referred to in your original application as the "Second File Note" and, as Mr. Duffy pointed out in his preliminary views letter of 31 May last, it is directly related to record number 14 by virtue of the fact that it purports to be a more accurate record of the minutes of a particular meeting [on a particular date] as recorded by you. Having regard to the fact that there is a substantial link between record number 14 and this record, my finding is that this record does not contain personal information for similar reasons as those outlined above i.e. this is a record of Department Official A's recollection of certain events at this particular meeting and there is nothing in this record that reveals anything about you that is of an essentially private character.

Finally, I wish to state that your comprehensive submissions to this Office have provided me with a clear indication as to the strength of your feelings in relation to the content of the records that you had sought amendment to and the manner as to how, in your view, the opinions as expressed are flawed. However, on the basis that none of these records contains personal information, I am unable to consider your application for their amendment.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the Department's decision.

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.

Yours sincerely

Information Commissioner