Case 040004 & 040005. Note: The Commissioner's decision in this case was appealed to the High Court on a point of law. The case was struck out by Mr. Justice Quirke on 24 October 2005 with no order as to costs.

Case Summary

Facts

Mr X applied to the Commissioner for a review of the decision of the Institute to refuse to amend a number of comments made by a member of staff in an e mail and memorandum. The e mail and memorandum were created by the staff member in response to Mr X's complaints about the Institute. In his application, Mr X requested that five separate comments be amended.

Decision

The Commissioner discontinued part of the application on the grounds that the application was frivolous in respect of four of the amendments requested. (The Commissioner affirmed the decision of the Institute to refuse to amend the remaining comment). In coming to her decision the Commissioner had regard to the OED definition of the word 'frivolous', the nature of the amendment requested and the effect the amendment might have on the meaning of the record. The Commissioner commented that in this case the amendments sought would either not change the substance or meaning of the content at all or, at most, would achieve an infinitesimal shift on how the information was presented.

The Commissioner was also satisfied that the Act allowed for the discontinuation of a review if part of an application is 'frivolous or vexatious'.

Date of Decision: 04.12.2004

Our Reference: 040004 and 040005

04.12.2004

Mr. X

Dear Mr. X

I refer to your applications for review of the decisions of the [education] Institute ("the Institute") in relation to your applications under section 17 of the Freedom of Information (FOI) Act, 1997 for amendment of an e mail dated February 2002 and a similar memorandum dated March 2002, from Dr Y to Dr Z. I also refer to Mr Nutley's letter to you of 16 September 2004 and your response.

Background

As Mr Nutley pointed out in his letter, the contents of both the e mail and memorandum are almost identical. Your applications to the Institute request the same amendments to both records. In both cases the Institute decided to refuse your applications for amendment. Accordingly, I consider it appropriate to address your applications in relation to both records in this letter.

In coming to my findings I have had regard to the comments in all your submissions to this Office, the decision of the Institute and I have carefully examined the contents of the e mail and memorandum in question. All references in this letter to particular sections of the FOI Act refer to the FOI Act, 1997 as amended by the Freedom of Information (Amendment) Act 2003.

Scope of Review

Findings

Mr Nutley's letter of 16 September describes the nature of the two records in question. In summary, they can be described as Dr Y's response to your complaints regarding the delivery of the XXX Course. Both records contain Dr Y's version of what occurred at a meeting with you on 6 July 2001. This version conflicts with your version of events.

Your applications for amendment of the e mail and memorandum are set out in your applications to the Institute dated 14 October, 16 October, 17 October and 22 October. Your applications can be summarised as follows:

1. In both records Dr Y refers to your letter dated September 2001 as a "report" containing a "...series of accusations". You object to this description of your letter. You wish to have Dr Y's description of your letter amended to "submissions containing complaints".

2. In both records Dr Y refers to the accusations/complaints as being "new". You object to the accusations/complaints being described as "new" as, in your own words, the "submissions included complaints that had already been submitted to Mr A, of the Institute in September 2001 and thus were not new to the Institute".

3. Dr Y also gives his version of a statement he claims you made at the meeting with him in July 2001. Dr Y claims that you said : " Now you and I both know Y that this just a bit a of ass-protecting by them (the staff)....". In your application you claim that you never made such a statement. You say that you would never refer to Dr Y as "Y" and that, in fact, what you said was "that's CYAing". You say that when Dr Y asked you to clarify what "CYAing" meant you translated the acronym into "the vernacular of some members of the class".

4. In paragraph three of both records Dr Y states that you chose to misrepresent information regarding a school based review as not being adequate. You say that you have not misrepresented anything and wish to have this statement amended accordingly.

5. Finally, in the e mail and memorandum Dr Y responds to your comments regarding possible confusion over the venue for the meeting of July 2001 which took place in ABC Street. You claim that during the meeting Mr B telephoned and told you that the meeting was supposed to be in XYZ Street. In response, Dr Y states that he would find it strange that Mr B would mention a meeting in XYZ Street when it had been agreed that the meeting take place in ABC St. You wish to have this amended to state that Mr B did in fact inform you that the meeting was supposed to be in XYZ Street.

In Part I of this letter I will deal with your application in respect of the amendment requested at 4 above.

Part I :

Section 17

Section 17 provides a right of amendment of "personal information in a record held by a public body" where the personal information is incomplete, incorrect or misleading. Personal information is defined in the FOI 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,...".

The FOI Act is silent on the question of where the onus of proof lies in section 17 cases. In your response to Mr Nutley's letter you claim that the onus is on the Institute as the holder of the records in question to show that its records are accurate. I do not accept that this is the case. I take the view that, in the absence of any express statement in the FOI Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading. This is consistent with section 17(2)(b) which provides that any application shall in so far as practicable "include appropriate information in support of the application." The Act is also silent as to the standard of proof which should apply in such cases. I take the view that the standard of proof required in such cases is that of "the balance of probabilities". It follows that an applicant, seeking to exercise the right of amendment under section 17, must show me that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

In order for an application under section 17 to be successful I must be satisfied that the information in question is personal information and that the information is incomplete, incorrect or misleading. If either of these criteria is not satisfied then an application under section 17 will not succeed. In this case I do not consider it necessary for me to decide whether or not the information is personal information as I do not accept that you have shown that the information is incomplete, incorrect or misleading.

In paragraph three of both records Dr Y states that you chose to misrepresent information regarding a school based review as not being adequate. You say that you have not misrepresented anything and wish to have this statement amended accordingly. In support of your application you state that Dr Y informed you that an appeal at school level would only involve a re-check of marks and not a review. You also state that you noted Dr Y's comments in your hand-written notes made during the meeting, in your summary made after the meeting and in an e mail to Mr D. Furthermore you contend that Dr Y has a selective memory and as a result, his version of events cannot be relied upon.

There are clear contradictions between Dr Y's view that you have misrepresented his advice and your contrary view. It seems to me that these contradictions arise as a result of differing interpretations of the same events. Notwithstanding your strongly held views on this matter, I do not consider that the evidence you have submitted to support your arguments is sufficient to satisfy me that the information in question is, on balance, incomplete, incorrect or misleading.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the Institute in relation to its decision to refuse to amend the records as outlined at 4 above.

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. You should note that such an appeal can only be made in relation to my decision to affirm the decision of the Institute in relation to your request for amendment as described at 4 above.

Part II :

Frivolous or Vexatious

Section 34(9)(a) of the FOI Act allows the Information Commissioner to discontinue a review if he or she becomes of the opinion that:

"(i) the application ... or the application to which the review relates is "frivolous or vexatious",

(iii) the matter to which the application relates is, has been or will be, the subject of another review..." .

Section 34(9)(b) provides that in determining whether to discontinue a review the Commissioner shall act in accordance with his or her own discretion.

In your response to Mr Nutley's letter of 16 September 2004 you state that you have made two applications in this case - one for each record. As the FOI Act provides for discontinuance on the basis that "an application" is frivolous or vexatious you argue that I cannot find that one part of an application is not frivolous or vexatious while the remaining parts of the application are frivolous or vexatious. However, I am satisfied that I can discontinue part of my review in these circumstances. If I were to accept your argument it would mean that I would be obliged to carry out a full review of all matters referred to in an application where some of those matters are (i) frivolous or vexatious or (ii) where some of the matters have been, or will be, the subject of another review (as provided for in section 34(9)(a)(iii)). I do not accept that this is the intention of the Act. I believe that my approach is consistent with section 34(9)(b) which provides that in determining whether to discontinue a review the Commissioner shall act in accordance with his or her own discretion.

The Oxford English Dictionary describes the word "frivolous" as :

"1.Of little or no weight, value, or importance; paltry, trumpery; not worthy of serious attention; having no reasonable ground or purpose.

b.Law. In pleading: Manifestly insufficient or futile."

A decision to discontinue a review on the grounds that the application is frivolous or vexatious is not a decision I take lightly. However, having carefully examined the circumstances in this particular case I consider that your applications, in so far as they relate to the amendments described at 1, 2, 3 and 5 above, are frivolous. In coming to my view on these applications I have had regard to the legal maxim "de minimis non curat lex", i.e. the law does not concern itself with trivialities.

In this regard, the changing of the description of your letter to "complaints " rather than "accusations" for example does not in any significant way alter the meaning of the record particularly where one of the Oxford English Dictionary definitions of the word "complaint" reads, "a formal accusation or charge". In general, Dr Y's description of your statement at the meeting with him does not differ in substance from your account of what you said. Under the FOI Act alteration of personal information is required where the information is incorrect, incomplete or misleading. When the issue at hand is to do with minor presentational nuances, as in this case, I do not consider it useful to devote the resources of my Office to considering the matter further. To put it bluntly, I do not believe that the purpose of section 17 of the FOI Act is to allow amendments of such a minor nature as those in question here.

In your submission and in support of your contention that the nature of the amendment requested is irrelevant, you have drawn my attention to the comments of the then Commissioner in decision 99151 - Mr ABW and Department of Enterprise Trade & Employment. The comments concern the requirement in section 8(4) for a public body to disregard any reason the requester gives for the request. The then Commissioner commented that it seemed to him that such a provision is incompatible with an approach that would permit public bodies to refuse to grant a request on the grounds that they were of little or no value. The Commissioner went on to acknowledge that, notwithstanding this view, it is not impossible for a request to be judged as frivolous or vexatious by virtue of its contents.

However, section 8(4) has since been amended by the Freedom of Information (Amendment) Act 2003. Section 8(4), as amended, allows a public body to take into account the motive of a requester when considering if a request is "frivolous or vexatious". In any event, section 8(4), by its very terms, only applies to a decision as to whether to grant or refuse to grant a request for access to records under section 7 and not an application for amendment under section 17. I am satisfied therefore that section 8(4) is not applicable, and in no way limits, the exercise of my discretion under section 34(9) of the FOI Act.

You have also referred me to an earlier decision of mine involving both you and the Institute. In that decision I found that the Institute was required to add the words "to try" to a record in order to make it complete, correct or not misleading. You contend that a finding in the present case that the amendments sought are frivolous contradicts my finding in the earlier case given that I found that a mere two words should be added to the record. However I do not accept that the quantity of words that are requested to be added to a record is an indicator of whether or not an application is frivolous. In considering whether an application is frivolous I must consider a number of criteria including the nature of the amendment and the effect the amendment might have on the meaning of the record. In this case, the amendments you seek would either not change the substance or meaning of the content at all or, at most, would achieve an infinitesimal shift on how the information in the record is presented.

Accordingly, I have decided to discontinue my review in relation to the amendments described at 1, 2, 3 and 5 above on the ground that your applications are frivolous.

I wish to add that during my deliberations I considered carrying out a full review of your applications. However, having considered the matter further I believe that giving serious contemplation to whether the matters referred to in 1, 2, 3 and 5 above consist of your personal information as defined in the FOI Act, and whether such information is incomplete, incorrect or misleading would be to bring the Act into disrepute.

Yours sincerely

Emily O'Reilly
Information Commissioner