Case 031100. Request for amendment of record in which the Office of the Revenue Commissioners deny ever having acted other than lawfully and within their powers in relation to the requester.

Case Summary

Facts

The requester applied to the Office of the Revenue Commissioners to have a record amended in which the Revenue Commissioners deny, inter alia, that they have ever been in violation of the exercise of their statutory powers under the Civil Service Regulation Act, 1956 in relation to him or that his statutory rights under that Act were ever denied as alleged by him. The Revenue refused to amend the record in question.

Decision

The Commissioner found that the record at issue contained the Revenue's stated response to allegations of having acted unlawfully in its dealings with the requester. She considered that for a right of amendment of the record to exist, the requester must show that the record is not, on the balance of probabilities, an accurate reflection of the Revenue's position. She found that the question of whether or not the Revenue Commissioners actually acted unlawfully as alleged is not a valid consideration in determining whether the statement, i.e. that the Revenue Commissioners position at the date of the creation of the record was to deny ever having done so, is incomplete, incorrect or misleading.

The Commissioner found that the requester had not shown that the information contained in the record was, on the balance of probabilities, incomplete, incorrect or misleading and she found the Revenue was justified in deciding to refuse his request for amendment of the record.

Date of Decision: 29.04.2004

Our Reference: 031100

29.04.2004

Mr. X

Dear Mr. X

I refer to your application under the Freedom of Information ("FOI") Act, 1997 for a review of the decision of the Office of the Revenue Commissioners ("the Revenue") to refuse your request for amendment of Mr Denis Hodson's letter of 14 October 2002.

Background

I have now completed my review of the Revenue's decision. In doing so I have had regard to your correspondence with the Revenue, to your letter of 3 December 2003 and enclosures to my Office, to correspondence between my Office and the Revenue and to your e-mail messages of 14 June, 2004 and 18 June, 2004 which you submitted following Mr Rafferty's letter of 24 May, 2004 setting out his preliminary views on the matter.

Scope of Review

Mr Hodson's letter of 14 October 2002 contains the following paragraph:

"The Revenue Commissioners emphatically deny that they have in any way ever been in violation of the exercise of their statutory powers, in relation to you, under the Civil Service Regulation Act, 1956 and the circulars made under same. The Commissioners further deny that your statutory rights under the Act were denied and that the exercise of their powers under the statute were invalid as alleged by you. The Commissioners further deny that your correspondence discloses any legal liability, whatsoever, on their part to you. The Commissioners have at all times acted lawfully and within their powers in relation to you."

You sought amendment of the letter to correct the statement to the effect that

"...The Revenue Commissioners had never breached their Statutory Functions under the Civil Service Regulation Act, 1956, that my statutory rights under that enactment had never been breached, and that the Revenue Commissioners had acted lawfully in my case at all times".

The Revenue refused your request for amendment of the record. Accordingly, my review is concerned solely with the question of whether the Revenue was justified in deciding to refuse your request for amendment of the relevant paragraph of Mr Hodson's letter of 14 October, 2002.

Findings

As you are aware, section 17 of the FOI Act provides for the right of amendment of a record held by a public body where personal information in the record is incomplete, incorrect or misleading. I am satisfied that the paragraph at issue in Mr Hodson's letter can, for the purposes of the FOI Act, be described as personal information relating to you. The question I must consider, therefore, is whether that personal information is incomplete, incorrect or misleading. My predecessor, Mr Kevin Murphy, examined the application of section 17 previously in case number 98158 (Mrs ABZ and the Office of the Revenue Commissioners).  In that decision Mr Murphy explained that, in the absence of any express statement in the FOI Act, he took the view that the onus of proving that the information is incomplete, incorrect or misleading lies with the applicant, as the party asserting that the information is incomplete, incorrect or misleading. He also took the view that the standard of proof required in such cases is that of the balance of probabilities. I am satisfied that this is an appropriate approach to adopt and have done so for the purposes of this decision.

It is clear from your e-mail of 14 June, 2004 that you have applied for an amendment of Mr Hodson's letter on the ground that the paragraph at issue is factually incorrect given your view that the Revenue "broke the law" in exercising its statutory powers in employment issues relating to you. Mr Rafferty, in his letter of 24 May 2004, advised you of his preliminary view that the paragraph merely contains the Revenue's stated legal position in the context of its dispute with you and that you have not shown that this position as stated is incomplete, incorrect or misleading. He further advised that the question of whether or not the Revenue's actions breached its statutory functions under the Civil Service Regulation Act, 1956 is not relevant to the question of whether the statement of the position adopted by the Revenue is incomplete, incorrect or misleading. In simple terms, the paragraph accurately reflects the position adopted by the Revenue in response to allegations of wrongdoing.

You clearly disagree with the basis on which Mr Rafferty formed his preliminary views. I note from your e-mail of 14 June, 2004 that you believe that he has placed undue emphasis on the context in which the record was created and that the context or reasons for the creation of a record cannot be a factor in determining whether the record is incomplete, incorrect or misleading. You argue that the determination of whether the record requires amendment depends exclusively on what the record itself actually states. I agree that the only question to be considered in determining whether a record should be amended pursuant to the provisions of section 17 is whether the personal information contained in the record is incomplete, incorrect or misleading. However, I disagree with your assertion that Mr Rafferty placed undue emphasis on the context in which the record at issue in this case was created. Rather he referred to the context in an effort to identify precisely what information the paragraph at issue contains.

In my view, the paragraph contains the Revenue's stated response to allegations of having acted unlawfully in its dealings with you, i.e. that the Revenue Commissioners deny ever having been in any way in violation of your statutory rights etc. It seems to me that for a right of amendment of the record to exist, you must show that the paragraph is not, on the balance of probabilities, an accurate reflection of the Revenue's position. I note that you believe that the result of adopting such an approach is to incorrectly limit section 17 to determining simply whether records are "a valid recording of the determination or opinion of the author, at the time such record was recorded" and that records which are the subject of every section 17 request could be similarly determined to be simply statements of the public body's position in relation to matters described in such records regardless as to whether or not the actual underlying information is incomplete, incorrect or misleading. I disagree. If a record contains personal information relating to an individual which purports to be factual information relating to that individual and the individual is in a position to show that the information is, on the balance of probabilities, incomplete, incorrect or misleading, then clearly a right of amendment exists. It would not be a sufficient defence for the public body to argue that the record reflects its position at the date of its creation. However, I see a difference between such records and the one at issue in this case. For example, the record at issue does not, in my view, purport to be a factual determination as to whether or not the Revenue Commissioners ever breached your statutory rights. Rather, it states that the Revenue Commissioners deny ever having violated those rights. The question of whether or not the Revenue Commissioners actually violated your statutory rights is not a valid consideration in determining whether the statement, that the Revenue Commissioners' position at the date of the creation of the record was to deny ever having done so, is incomplete, incorrect or misleading.

I further note from your e-mail of 18 June, 2004 that you believe that Mr Rafferty's preliminary views on the matter were deeply influenced by the fact that the Revenue sought legal advice on the issues you had put to it and that it was for this reason that he described the statement at issue as the Revenue's "stated legal position". You argue that the fact that legal advice was sought and provided should not have any bearing on whether the statement is incorrect, incomplete or misleading. I agree that the fact that legal advice was sought is not, of itself, relevant to the question of whether or not the record should be amended. However, I see nothing wrong with Mr Rafferty's description of the statement as it is an undisputed fact that the Revenue issued its response following receipt of legal advice on the matter. In any event, even if the Revenue had not received legal advice on the matter, it does not change the fact that the statement contains the Revenue's position in response to allegations of having acted unlawfully in its dealings with you.

You also make reference in your e-mail of 14 June, 2004 to the fact that Mr Rafferty did not address the reasons given by the Revenue for refusing your request in both its original decision and its decision on internal review. On this point, I should explain that a review which I conduct under Section 34(2) of the FOI Act involves a de novo decision, meaning that I must decide afresh upon the request in the light of the facts and circumstances prevailing at the time of my review. This approach is in accordance with the High Court judgment of Mr Justice Aindrias Ó Caoimh in the case of The Minister of Education and Science v the Information Commissioner . However, I would make the following comments on the decisions taken by the Revenue.

The Revenue originally refused your request on the basis that the letter at issue contained Mr Hodson's opinion and that you had not shown that that opinion was, on the balance of probabilities, incomplete, incorrect or misleading. It relied on guidance my predecessor had given in case number 98158 concerning the amendment of opinion. In that case, Mr Murphy explained that the right of amendment of personal information includes the right of amendment of opinions that are incomplete, incorrect, or misleading. He cautioned, however, that "section 17 does not 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". He went on to say that an applicant is expected to show 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". In my view, the Revenue was wrong to regard the letter at issue as containing Mr Hodson's opinion and to apply the guidelines concerning the amendment of opinions as set out in case number 98158. I note from your letter of 3 December 2003 to my Office that you are also of the view that the statement was not an opinion.

The Revenue subsequently decided, at internal review stage, to refuse your request on the ground that the decision maker did not consider it fair and just for her to amend the record as "to do so would necessitate me forming a judgement on the issues between yourself and Personnel Branch and not merely on the fact whether the records are incomplete, incorrect or misleading". In effect, the decision was that the use of section 17 was not an appropriate mechanism for dealing with disputes concerning disciplinary matters and, indeed, this point was made by the Revenue in its submission to my Office. While this of itself was not, in my view, a valid reason for refusing your request for amendment, I must admit that I have some sympathy with the sentiments expressed. I do not believe that it was envisaged by the Oireachtas that section 17 would provide an alternative mechanism for resolving disputes where existing duly authorised avenues for addressing such matters already exist. Rather, section 17 is limited to providing a procedure for the amendment of personal information which is incomplete, incorrect or misleading. I do accept, however, that a situation could arise where a successful application under section 17 to amend incomplete, incorrect or misleading personal information in a record significantly affects both the position adopted by one of the parties involved in a dispute and the outcome of the dispute. My predecessor made the following comments in case number 98158:

"A determination by a properly appointed authority is worthy of special mention. For example, a determination in relation to the entitlements of an individual as a beneficiary under the Social Welfare Acts, or a determination of the liability of an individual in respect of tax or duty payable, cannot be deemed to be incomplete, incorrect or misleading if made by a properly appointed and authorised person and in the absence of a successful appeal as provided by the appropriate legislation. Section 17 of the FOI Act does not provide an alternative appeal mechanism against such determinations. However, my comments above on the duty of the public body to "carry through" may be relevant if the facts underlying such a determination are amended on foot of an application under the FOI Act"

In this case, however, no such  determination is at issue. 

Finally, for the sake of completeness, I accept that it could be argued that the final sentence of the paragraph at issue, viz. "The Commissioners have at all times acted lawfully and within their powers in relation to you" purports to be a factual statement as to how the Revenue have carried out their functions in relation to you as opposed to being the Revenue's stated position in response to allegations of wrong-doing and that the statement requires amendment if it can be shown that the Revenue did, indeed, act unlawfully. However, I take the view that the sentence should instead be read as part of the Revenue's overall stated response given the context in which the paragraph was written.

In summary, therefore, I find that you have not shown that the information contained in the paragraph at issue is, on the balance of probabilities, incomplete, incorrect or misleading and I find the Revenue was justified in deciding to refuse your request for amendment of the record.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Office of the Revenue Commissioners in this case.

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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner