The Senior Investigator found that the HSE is not justified in its decision and directed that the personal information at issue be partly deleted and amended in the manner specified.

Case Summary

Whether the HSE is justified in its decision to refuse an application, made under section 17 of the FOI Act, to amend by deletion personal information in a record held by it.

Date of Decision: 22.04.2010

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

Background:

By letter dated 25 January 2008 the Applicant sought to have certain personal information contained in a record to which she had been granted access by the HSE "altered" because it was "untrue". The information at issue consisted of references to "mental health issues" and to her having been a patient in a (named) hospital. On 18 March 2008 the HSE issued its decision on the application. That decision did not refer to the accuracy or otherwise of the information; it advised the Applicant that it had been decided that the "most appropriate method" of altering the information was to add a statement to the file to reflect the Applicant's statement that it was untrue that she had been a patient in the (named) hospital or that she had mental health issues. It further advised the Applicant that the "alteration" would include a sentence to the effect that she had received "psychiatric intervention" from another (named) hospital.

On 11 April 2008, the Applicant applied for an internal review of the decision. The Applicant stated that section 17(1) of the FOI Act provided for amendment by deletion of what she described as "false statements". She further stated that she wished to have "these details completely deleted" because they are "untrue" and that an amendment (by adding a statement) "is not sufficient". On 4 June 2008, the HSE issued its decision following internal review. The HSE varied its original decision. The Decision Maker expressed the view that "on the balance of probabilities it was incorrect to conclude without supporting documentation on file that you were a patient of (named) hospital or that you have mental health issues". However, she went on to find that this did not warrant the deletion of any material from the record and decided instead to add to the record a statement of the Applicant's position.

On 5 October 2009, the Applicant applied to the Information Commissioner for review of the HSE decision. She raised further questions in relation to the background to the creation of the record at issue. The Commissioner, having considered the Applicant's circumstances, accepted under section 34(4)(b) of the Act, the late application for review. In doing so, the Commissioner took account of the fact that the time limits for dealing with both the initial request and the request for internal review had been exceeded. The Applicant was advised that the Commissioner's review would be confined to the question of the information for which she sought amendment by deletion.

In conducting this review, I have had regard to the following:

1. the submissions of the Applicant,
2. the submissions of the HSE,
3. the record containing the personal information at issue,
4. the provisions of the FOI Act.

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

Scope of the Review

This review is concerned solely with the question of whether the HSE's refusal to amend, by deletion, in accordance with section 17 of the FOI Act, the personal information in a record held by it is justified.

Submissions

.

Findings

Analysis and Findings

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

correct or not misleading, as may be appropriate,

(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."

It is accepted that the record at issue does contain personal information relating to the Applicant and, accordingly, section 17 of the FOI Act may be invoked in relation to the information.

It is clear from section 17 that a decision under the FOI Act to delete personal information from a record can be taken only where it is established that the particular information is "incomplete, incorrect or misleading". The responsibility for showing that personal information in a record is "incomplete, incorrect or misleading" lies with the person to whom the personal information relates and who is seeking to have that information amended under section 17. The standard of proof required in this type of case was established by the previous Commissioner in Case No. 98158 and is one of the "balance of probabilities". A second finding in Case No. 98158 was that the deletion of incorrect information from a record is only justified 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.

The record containing the personal information at issue is numbered 1263. That personal information is: "(Name of Applicant) has her own mental health problems and in the past has been hospitalised in (name of hospital). Her issues with her mental health ....". and the reference is within a context of a social work referral relating to a third party. The Applicant has requested the amendment of the information by means of the deletion of the references to hospitalisation and to mental health issues because they are "blatantly untrue".

In its first submission in the matter to this Office the HSE, the HSE acknowledged the delays in the issuing of both the original decision and the decision following internal review, delays which were attributed to administrative reasons. The HSE advised that, in the original decision it had been decided to amend the record by

append the following to the record:

"(Applicant) has stated that it is untrue that she was a patient in (named) hospital or that she has mental issues. It should instead state that (Applicant) received psychiatric intervention from (another) hospital."

In its decision following internal review, the original decision was varied to provide that the following statement should be attached to the record:

"(Applicant's name) wishes to confirm that she was not a patient of (named) hospital and that she does not have mental health issues".

In that decision, the HSE Decision Maker stated that it was incorrect "on the balance of probabilities" to conclude that the Applicant had been a patient at (named) hospital or that she had mental health issues without supporting documentation. Nevertheless, the Decision Maker continued to state that this did not "warrant the deletion of any material from the record", that there were "inherent difficulties in altering contemporaneous social work notes, particularly in relation to the evidential value of such notes." The Decision Maker added that "the piece at issue did not purport to be a statement of fact", that it was a record of what was "in the mind of the social worker personnel at that time" and that it shows that at the time of creating the record, information was received by the Social Worker in this regard.

There are two statements which the Applicant has asked to be amended by deletion:

1. that she was a patient at (named hospital) and
2. that she had mental health issues

The purpose of section 17, as set out in the Long Title to the FOI Act is to allow "PERSONS TO HAVE PERSONAL INFORMATION RELATING TO THEM IN THE POSSESSION OF SUCH (public) BODIES CORRECTED." Section 17 provides for "the amendment of personal information in a record where such information is incomplete, incorrect or misleading.

It is of importance that the HSE Decision maker found that "on the balance of probabilities it was incorrect to conclude without supporting documentation on file that you were a patient at (named hospital) or that you have mental health issues." The information at 1 is presented as a fact in the context of the record. The information at 2, while also arguably presented as factual, is somewhat less specific or objective, being more of an opinion on a state of health. Nevertheless, both are statements which, the HSE has acknowledged, are not supported by documentation in the particular context. The reference to "mental health issues" may derive from the Applicant's attendance at another hospital which was not referred to in record no. 1263.

The HSE contends that the record includes information received from another Social Worker and reflects what was in the mind of social work personnel at the time of its creation. In the normal course, and as found by the previous Commissioner in a number of cases e.g. Case 020220 there is a presumption that personal information contained in a record is not incomplete, incorrect or misleading and that the onus of showing that it is either incomplete, incorrect or misleading is a matter for the person seeking to have that information amended. In this case, however, the HSE's acknowledgement that the information is not correct together with the Applicant's assertion that the information is "blatantly untrue" combine to satisfy me that, on a balance of probabilities, the Applicant's contention is the more probable in all the circumstances.

I consider that, in relation to the reference to the Applicant having been a patient at (named) hospital, deletion of the information is required to the extent that the harm caused by its continued existence cannot adequately be undone by means of an alteration of, or addition to, the record in question.

The situation in relation to the two references to mental health "problems" and "issues" is somewhat less clear. I accept that it would have been relevant for the author of the record to make some mention of Applicant's health. I consider that it would be reasonable to direct the HSE to amend the information in the record to confine the reference to the Applicant's health in general. I find accordingly. Alteration of the record in this manner is sufficient to remove any significant adverse effect to the Applicant arising from the references to ''mental health'' issues.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby annul the decision of the HSE and direct that the sentences containing the personal information in the record be amended by deletion of the reference to the named hospital and amendment of the reference to mental health problems and issues so that the sentence reads as follows:

"(Applicant) has her own health problems. Her issues with her health have..."

I draw attention to the following provisions of the FOI Act:

Section 17(4)(a)(i) requires a public body to "attach to the record concerned the application or a copy of it ..."

Section 17(5) requires that, where a record is amended pursuant to section 17 "the public body concerned shall take all reasonable steps to notify of the amendment _

(a) any person to whom access to the record was granted under the Act, and

(b) any other public body to whom a copy of the record was given,

during the period of one year ending on the date on which the amendment was effected."

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. Any such appeal must be initiated not later than eight weeks from the date of this decision.

Elizabeth Dolan

Senior Investigator

22 April 2010