Case 040143. Application for deletion of medical certificate certifying the applicant as unable to perform the duties of his employment by reason of permanent infirmity - whether the record was incorrect, incomplete or misleading at the time it was created - whether the record is now incorrect, incomplete or misleading - whether the record should be deleted or amended by means of attaching a statement - section 17.

Case Summary

Facts

The applicant - Mr X - sought the deletion of a number of records from a file held by the public body concerned. One record was a medical certificate, signed by Dr Y in 2000, that certified the requester as incapable of carrying out the duties of his employment by reason of permanent infirmity. Dr Y signed the certificate without having examined Mr X, whom he had never met. However, he had based his opinion on a letter, dated June 2000, provided by the applicant's own GP, Dr A.

The applicant contended that the opinion in the medical certificate was not supported by Dr A's letter, that Dr Y's opinion as contained in the medical certificate was flawed, and that the certificate should be deleted from the file.

Decision

The Commissioner noted that Dr A's letter was not particularly clear as to the permanence of Mr X's infirmity. However, while it would have been sensible for Dr Y to have clarified this with Dr A, the Commissioner accepted that Dr Y had some grounds for understanding Dr A to have said that Mr X was incapable of performing his duties by reason of permanent infirmity. She did not find the certificate to be incomplete, incorrect or misleading at the time of its completion by Dr Y.

However, the Commissioner found that two factors suggested that, at this stage, Dr Y's opinion had become dangerous to rely on. The factors were:

• clarification provided by Dr A, in a letter dated July 2004, as to exactly what his letter of June 2000 had been intended to convey; and
• the fact that Mr X had subsequently taken up employment in a capacity similar to that from which he had retired.

Accordingly, the Commissioner found the certificate to have become misleading, in that a person reading it today would draw the conclusion that Mr X remained incapable of performing the duties of his office by reason of permanent infirmity.

While Mr X had sought the deletion of the medical certificate, the Commissioner found that the potential harm arising from the continued existence of the certificate could be dealt with adequately by adding to it a statement noting (1) that the certificate was to be read in conjunction with Dr A's letters of June 2000 and July 2004, and (2) that Mr X was no longer suffering from a permanent infirmity and had been able to return to work.

The relevant section of the decision letter is reproduced below. Furthermore, certain details have been deleted therefrom in order to protect the identity of the applicant concerned.

Date of Decision: 30.08.2005

Our Reference: 040143

30.08.2005

Mr. X

Dear Mr X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of [the public body] on your FOI application of 4 January 2004. [text deleted] I regret the delay that has arisen in dealing with your application.

Background

On 4 January 2004, you made an application under section 17 of the FOI Act to [the public body] in relation to a file ("the file") concerning yourself which had been transferred to [the public body] from your former employer, [deleted]. Your application sought:

1. [details deleted]
2. [details deleted]
3. the removal from the file of a medical report written by Dr Y and dated 30 June 2000 (the medical certificate).

[The public body] did not reply to your application and, on 26 February 2004, you sought an internal review of its effective decision to refuse your application. In a letter dated 24 March 2004, [the public body] told you that it was unable [text deleted] to remove anything from your file that had been entered prior to the file's transfer from [text deleted] On 12 April 2004, you made your application to this Office.

[text deleted]

However, the Board's position in relation to the other two items of your application is that you have not provided sufficient evidence to show that the information in the records at issue is incomplete, incorrect or misleading and that section 17 does not apply.

In conducting this review, I have had regard to all of the correspondence and contacts between yourself and this Office [text deleted]. I have had regard also to the submissions of [the public body]. Finally, I have conducted this review in accordance with the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. All references in this letter to particular sections of the FOI Act refer to the FOI Act, 1997 as amended.

Scope of Review

The only issue for decision arising from this review is whether the Board is justified, in terms of the provisions of the FOI Act, in its decision to refuse to delete from the file the records identified in items 2 and 3 of your application. [text deleted]

Findings

Section 17

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 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

(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 information in the records in question does 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 public body] has not, at any stage, disputed that the information in the records does constitute personal information in relation to you. It is not necessary, therefore, to consider this aspect further.

Once the information at issue has been found to be personal information in relation to the applicant, there are two further steps in dealing with section 17 applications. The first step is to decide whether or not the personal information in question is "incomplete, incorrect or misleading" and thus requires to be amended. Where the information has been found to be "incomplete, incorrect or misleading", the second step is to decide what form that amendment should take. Section 17 identifies three possible forms of amendment (see above).

The onus of proof and the standard of proof

The previous Information Commissioner has already outlined - in his 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, he 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". The full text of the decision in Case No. 98158 is available on my Office website at <www.oic.ie>. For the purposes of this decision, I am happy to adopt the approach of my predecessor, as set out above.

The meaning of "incomplete, incorrect or misleading"

The Oxford English Dictionary defines "incomplete" as "not complete; not fully formed, made, or done; not whole, entire, or thorough; wanting some part; unfinished, imperfect, defective". It defines "complete" as "having all its parts or members; comprising the full number or amount; embracing all the requisite items, details, topics, etc.; entire, full". It defines the term "incorrect" as "not in accordance with fact; erroneous, inaccurate". It defines the term "correct" as "in accordance with fact, truth, or reason; free from error; exact, true, accurate; right." It defines the term "misleading" as "that leads astray or causes to err." Clearly there is an element of overlap between the three terms in the sense that information which is incomplete or incorrect may also have the propensity to mislead.

In Case No. 98158, my predecessor commented as follows in relation to the application of section 17:

"Care is needed in applying the above definitions in the context of section 17. For example, it should be noted that it is the information rather than the record which must be incomplete, before the right of amendment may be exercised. Personal information in a record is not incomplete merely because the record does not contain all the information which the applicant might like it to contain. It seems to me that the word incomplete in section 17 is used in the sense of imperfect or defective or lacking certain requisite items or details. In deciding whether the information can be so described, regard has to be had to the purpose for which the information is held. It can be said to be incomplete if it lacks certain requisite details i.e. details required by the circumstances in which the record is created or required for the uses to which the record is put or which might put a different complexion on the information."

In that same decision (Case No. 98158), my predecessor considered the implications of deleting information from a record which has been found to be incomplete, incorrect or misleading:

"The word "delete" means "To strike or blot out, obliterate, erase, expunge (written or printed characters)". Thus the third option for amending a record is to strike or blot out, obliterate, erase or expunge the incomplete, incorrect or misleading information. It should be noted that it is the information which is being deleted, not the record itself. However, it is possible that where the contents of a record consist entirely of incomplete, incorrect or misleading information, then the deletion of the information will be equivalent to the destruction of the record.

In my view the deletion of information from a record, on foot of an application under section 17, is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. Without wishing to lay down an inflexible rule on this point, it seems to me that deletion of incorrect information from a record is only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect."

I find this is useful guidance and I am happy to have regard to it for the purposes of this decision.

[text deleted]

Item 3 - The Medical Certificate

Preliminary Matters

The record at issue here is a medical certificate in relation to yourself signed by Dr. Y and dated 30 June 2000. In it, Dr. Y certifies that, as from 30 June 2000, you were incapable of performing "the duties of [your] office/employment by reason of permanent infirmity, of mind or body, namely: anxiety and depression". In your application of 4 January 2004 you seek to have this record "removed from my file as it never had any validity. I wasn't aware of its existence until thirteen months after it was written". In correspondence with my Office, you lay particular emphasis on the fact that you have never met Dr. Y and I understand it is your case that his certificate lacks validity for this reason. In your letter to this Office of 18 August 2005, you say:

"The issue of the medical report being written by a doctor whom I have never met and it being inserted into my personal file is a different matter to foolishness. It is a fundamental attack on my freedom as a citizen. The challenge now is for the Information Commissioner to examine that report and to decide if it is reliable or not. There is no compromise about this matter. It is either acceptable or it is not."

It appears that your case for having the certificate removed from your file is based, at least in part, on a view that there was a fundamental breach of your legal rights involved in the procurement of the certificate by the [text deleted] and in the signing of the certificate by Dr. Y. [text deleted] You appear to invite me to take a position on whether the process, whereby the certificate was procured and signed, involved a breach of your legal rights; furthermore, you appear to hold the view that my review decision should be influenced by that position. In order to put the matter beyond doubt, I must make it clear that I do not have the jurisdiction to make any finding on whether your legal rights were breached in the course of the certification process; nor can I adjudicate on whether the process was, as you put it, "acceptable". In this case, the only matter on which I have jurisdiction to adjudicate is whether the information in the certificate is incomplete, incorrect or misleading. The circumstances in which the certificate was procured and signed constitute matters to which, I believe, I may have some regard for the purposes of this review; but having regard to these circumstances does not include the taking of any position on whether your legal rights were breached.

The FOI Act provides that, in dealing with a request for records, a decision maker must not have regard to the motivation of the requester in seeking those records. In the case of a person seeking the amendment of personal information in a record, in accordance with section 17 of the FOI Act, there is no explicit prohibition on having regard to the motivation of the applicant. However, I take the view that the motivation of a section 17 applicant is not a matter to be taken into account in dealing with such an application. A decision as to whether information is incomplete, incorrect or misleading is an objective exercise. The fact that the existence on record of certain personal information may have certain consequences is a separate matter and not one which should influence the decision as to whether that information is incomplete, incorrect or misleading. On the other hand, where personal information in a record is found to be incomplete, incorrect or misleading and where the continued existence of the record may have certain consequences (for example, may cause harm), this is a consideration in deciding which of the three forms of amendment of the information should be adopted.

Finally, I note that the matter of amending Dr. Y's certificate has already been the subject of a review by this Office in Case No. [details deleted]. I have had to consider whether I should deal with this record again given the discretion I have, under section 34(9)(a)(iii) of the FOI Act, to discontinue a review where the matter to which it relates has been the subject of another review. I have decided that I should proceed with the review in relation to the certificate on the basis that you have provided new evidence in this instance which had not been available at the time of the earlier review. The new evidence is the letter of 29 July 2004 from your GP, Dr. A. I note also that, since our decision in Case No. 020636, you have returned to work in the same broad area as that in which you served with the [text deleted] and I regard this as a relevant factor.

The Facts

For the purposes of this review it is important to identify those facts which have a bearing on whether the information in the certificate is incomplete, incorrect or misleading. My findings of fact in this case are based on the documents provided by the parties as well as on my Office's contacts with Dr. Y. (My Office wrote to Dr. Y seeking clarification from him on a number of points. Dr. Y opted to reply to these enquiries by way of a telephone call. I am satisfied that Dr. Y's reply by telephone is sufficient for the purposes of this review.) My findings of fact are as follows:

• on 28 June 2000, your GP (Dr. A) wrote to the [text deleted], at your request, in support of your application for early retirement ("I would strongly endorse his application for early retirement");
• Dr. A's letter states that you were unable to work for the time being ("He is unable to work at present") and that he agrees with your view that you "would be unable to work in the new environment proposed";
• on 29 June 2000, the [text deleted] wrote to Dr. Y (as the Chief Medical Officer to [text deleted]) enclosing your GP's letter and requesting Dr. Y's "judgement on the issue as our medical advisor in the matter"; this judgement was required by the following day, 30 June 2000, which was the "final day for winding up [text deleted] affairs";
• Dr. Y signed the certificate on 30 June 2000 within 24 hours of having been contacted by the [text deleted];
• Dr. Y signed the certificate without having examined or met you nor did he have any knowledge of you prior to [this] contact;
• the only medical information about you available to Dr. Y was that contained in the letter of your GP;
• the only other information about you available to Dr. Y was that contained in the letter of the previous day from the [text deleted] which stated that you had "applied for early retirement on health grounds".

Dr. Y's Opinion

As I understand it, you take issue with Dr. Y's opinion that you had a "permanent infirmity" which rendered you incapable of performing the duties of your office/employment. I note that you say you "had no duties at all" on 30 June 2000 because the [text deleted] had been dissolved on 12 June 2000. This comment sits very uneasily with your apparent interest in seeking early retirement from a post which, presumably, carried with it certain duties. In the circumstances, I see no value in pursuing this aspect of your argument. The issue arises as to whether an opinion expressed in relation to an individual constitutes personal information which is capable of amendment under section 17. My predecessor dealt with this matter in his decision in Case No. 98158:

"I believe that section 17 does provide a right of amendment of this type of personal information [opinion]. The definition of "personal information" includes "the views or opinions of another person about the individual", so the right of amendment of personal information includes the right of amendment of opinions that are incorrect, in addition to the right of amendment of incomplete or misleading opinions. However, in my view, 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. It is not my intention to present an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading". However, 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."

I am happy to adopt this reasoning for the purposes of this review.

Dr. Y was the Chief Medical Officer of the [text deleted] and I understand, its medical advisor in the case of applications for early retirement on the grounds of ill health. I take it that at the time (June 2000) he was an experienced medical officer and appropriately qualified. Furthermore, I am not aware of any reason to consider that Dr. Y displayed bias or ill will in relation to you. In terms of the categories outlined by my predecessor, as cited above, I take it that the matter requiring to be addressed is whether Dr. Y's opinion is flawed "by reason of the total inadequacy of the factual information underlying it" or "because of some other particular factor which renders the opinion dangerous to rely upon".

In a matter of such significance as early retirement from employment because of ill health, it is reasonable to expect that the certifying doctor will base his opinion either on his own examination of the employee and/or on medical evidence from an external source. I do not take the view that it is always necessary for the certifying doctor to examine a prospective retiree; but I do take the view that the certification must be based on relevant information. Dr. Y has told this Office that, generally speaking, he would have been guided by the head of the particular public body as to whether or not he should see a prospective retiree to determine whether or not the applicant was fit to work. Notwithstanding this, I accept that it was for Dr Y, in his capacity as Chief Medical Officer, to decide as to whether or not he saw a prospective retiree.

The principal information available to Dr. Y was the letter from your GP, Dr. A. You contend that Y's opinion is not supported by your GP's letter and that, accordingly, Dr. Y's opinion is flawed or invalid. Dr. A's letter says that you were "unable to work at present", suggesting that you may not have been permanently incapable of work; it says that you "would be unable to work in the new environment proposed", suggesting that you could not work, in the future, on the basis of whatever re-deployment offers were being made; it also "strongly endorsed" your application for early retirement. In a context in which being granted early retirement depended on a finding of "permanent infirmity", and where both you and your GP can be presumed to have been aware of this requirement, Dr. Y may have felt entitled to draw the inference that Dr. A supported the view that you had a "permanent infirmity".

While I may incline to the view that your GP's letter did not set out a clear-cut statement of his opinion as to whether you did, or did not, suffer from a "permanent infirmity"; and while it may seem to me that it would have been sensible for Dr. Y to have sought clarification from your GP as to the precise nature of his assessment; I nevertheless accept that Dr. Y had some grounds for understanding your GP to say that you were incapable of performing your duties "by reason of permanent infirmity". In these circumstances, I cannot conclude that the opinion of Dr. Y was "flawed, by reason of the total inadequacy of the factual information underlying it". This test is quite a strict one and is not satisfied in a situation where (as I believe is the present case) the factual information is somewhat confused or capable of more than one interpretation.

It remains to be decided whether Dr. Y's opinion is flawed "because of some other particular factor which renders the opinion dangerous to rely upon." In this regard, there are two separate items which suggest that Dr. Y's opinion has become, at this stage, "dangerous to rely upon." The first of these is the clarification provided by your GP as to his intentions in writing to the [text deleted] in support of your application for early retirement; the second is the fact that you have now taken up employment with the [text deleted] in a capacity similar to that of your employment with the [text deleted].

You have supplied this Office with a copy of a letter from Dr A dated 29 July 2004, which clarifies the position he intended to convey in his letter to the [text deleted] of 28 June 2000. This is the type of clarification which, ideally, Dr. Y should have had before taking any view on the question of whether or not you suffered from a "permanent infirmity". Dr A's letter of 29 July 2004 says that the difficulties being suffered by you then were "in relation to the abolition of [your] post and [your] subsequent enforced re-deployment and not in any way permanent beyond that context." He says that his endorsement of your application for early retirement was "based on the lack of other options and not an expectation of permanent incapacity". In fairness to Dr. Y, it must be said that Dr A's earlier letter (28 June 2000) did not make this clear.

Of greater relevance, however, is the fact that you are now back in employment and that this fact is at odds with the opinion expressed by Dr. Y in June 2000. It is important to understand that Dr. Y's opinion, while relating to the future, was given at a particular point in time. I have already accepted that, at the time it was given, this opinion could not have been characterised (at least for the purposes of section 17 of the FOI Act) as being incomplete, incorrect or misleading. The passage of time has shown that Dr. Y's opinion has been overtaken by subsequent developments. However, this has no implications for the opinion as given on 30 June 2000. The opinion of June 2000 is not undermined simply because, subsequent to it, you have shown that you are capable of work and no longer incapable of "performing the duties of [your] office/employment by reason of permanent infirmity ...". It is clear from the terms of the Local Government (Superannuation) (Consolidation) Scheme, 1998 - the relevant portions of which you have provided to my Office - that the Scheme itself envisages that there will be occasions in which a person, found to have had a permanent infirmity, no longer suffers from such infirmity and is capable of resuming his or her duties. However, while being clear that I am not taking issue with the certificate in the context in which it was originally signed, I find that it has become misleading in as much as a person reading it today would draw the conclusion that you remain incapable of "performing the duties of [your] office/employment by reason of permanent infirmity ...".

Form of Amendment

Having found that the information in the certificate has become misleading, as set out above, the remaining issue is to determine the appropriate form of amendment in accordance with section 17.

You have sought the deletion of the record concerned. I note that in my Office's decision in Case No. 020636 it was outlined to you that an application for deletion of records will only be granted in situations where it has been demonstrated that the actual or potential harm arising from the continued existence of the records is such that it cannot adequately be dealt with by means of an alteration of, or addition to, the records in question.

In some of your submissions I understand you to claim that you were unable to take up a post with [text deleted] because as you saw it, of the existence of the Dr. Y certificate. I understand that in the meantime you have taken up this post on a part-time basis. Having considered all of the very detailed arguments you have made, I am not satisfied that this is a case in which the potential harm arising from the continued existence of the certificate is such that it cannot adequately be dealt with by means of an alteration of it or an addition to it. I consider, therefore, that the appropriate form of amendment of the certificate is the addition to it of a statement containing the following elements: (1) that it is to be read in conjunction with Dr A's letters of 28 June 2000 and 29 July 2004 which are to be attached to the certificate and (2) that you are no longer suffering from a permanent infirmity and have been able to return to work.

Under section 17(5)(b), a public body against whom a decision to amend a record under section 17 has been given, or where it has itself decided to amend a record, is required to notify any other public body to whom a copy of the record has been given, of the amendment. I take it that the [name of public body] will comply with this requirement.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended) I hereby vary the decision to refuse your application and direct, in relation to the medical certificate of 30 June 2000, that the [name of public body] add to it a statement containing the two elements identified immediately 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.

Yours sincerely

Emily O'Reilly
Information Commissioner