Case 090147. Whether the Department is justified in its decision under section 17 of the FOI Act to refuse to amend records in which personal information is held.

Case Summary

The Senior Investigator affirmed the Department's decision.

Date of Decision: 18.12.2009

Review Application to the Information Commissioner under the Freedom of Information (FOI) Acts 1997 & 2003

Background:

On 13 March 2009, the Applicant wrote to the Department seeking, inter alia, that the following records be amended in accordance with section 17 of the FOI Act, as they contained:-

"incomplete incorrect and misleading information......

- z's email dated 13/7/2007

- w's email dated 24/2/2009

- x's email dated 12/2/2009

- w's 'Narrative' totally written by her before the meeting of 24/6/2008, and her unilateral 'rating', based on her unilateral 'Narrative'."

On 26 March 2009, the Department emailed her advising her that "The guidelines for considering such requests (section 17) place the onus to a large extent on the Applicant to produce EVIDENCE to support his/her claim that the records are incomplete, incorrect or misleading. The requester must also specify the actual AMENDMENT that he/she requires to the record." The Department's Officer also offered to discuss any of the issues in confidence.

On 3 April 2009, the Applicant confirmed that she wished to pursue her section 17 application but did not provide any of the supporting evidence requested by the Department. The Department replied on the same day asserting that the onus was on her to produce evidence in support of her claim, and also to clearly specify the actual amendments that she required to be made to the records concerned.

Also on that day the Applicant again wrote to the Department and contended that she had provided detailed information to support her section 17 FOI request and that she wished to pursue it. For the purposes of this review, I take this letter from the Applicant as confirmation she did not accept the Department's position on her request, and her request to have that position pursued. Accordingly, I take the letter to be the Applicant's request for internal review of the Department's position as set out in its letter to her of 3 April, 2009.

Conducted in accordance with section 34(2) of the FOI Act by Seán Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of the Review

My review is confined solely to the issue as to whether or not the Department is correct in its refusal to amend the records as requested by the applicant under section 17. I would like to emphasise at this point that I do not consider it necessary to address the other issues raised by the applicant in her submission of 1 December 2009, as these issues are not relevant to this Offices consideration of her application.

Submissions

.

Findings

Preliminary Matter

As stated above, the Department refused to process the Applicant's request as, in its view she did not specify the amendments she required it to make to the records. For the purposes of this review, I take this to be a refusal by the Department to amend the records specified by the Applicant.

On 6 April 2009, the Department again wrote to the Applicant and advised her that as, in its view, she had not provided the detail requested in previous correspondence, it was not in a position to process the request. For the purposes of this review, I take this as a refusal by the Department of the Applicant's request for internal review.

On 4 June 2009, the Applicant applied to this Office for review of the Department's position as set out in its letter of 6 April, 2009.

On 26 November 2009, having corresponded with both the Applicant and the Department and having taken account of the submissions from both parties, this Office issued its preliminary view on the application. That preliminary view confirmed, that because of the Applicant's failure to supply requested information, this Office considered that the Department was correct in its decision not to amend the records in question.

On 1 December 2009, the Applicant confirmed that she did not accept the preliminary view and that she wanted a formal decision, as is her right.

Findings

As was explained in this Office's preliminary view, Section 17(1)(i) 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, "

It was also explained that in previous decisions the Commissioner has upheld the view that the onus of proving that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading lies with the requester (see for instance case no. 98158 on our website www.oic.gov.ie).

In addition, under section 17(2) of the FOI Acts there is an additional onus on the requester to:-

(a) specify the record concerned and the amendment required, and

(b) include appropriate information in support of the application.

Notwithstanding the Applicant's contentions that she has supplied the necessary information requested initially by the Department and subsequently by this Office, having reviewed her correspondence on the matter, I am satisfied that having been given the opportunity by both the Department and this Office she has failed to do so. In the absence of this information and as stated above I am taking the Department's refusal to process the Applicant's request as a decision by it to refuse to amend the records in question. As I am satisfied the Applicant has not specified to this Office the amendments she requires to the records, I find that she has not met the "balance of probabilities"standards of proof to justify amendment of the records. I accordingly affirm what I take to be the Department's decision to refuse to amend the records in question.

Decision

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

Right of Appeal

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 decision.

Seán Garvey

Senior Investigator

18 December 2009