Case 100204

The Commissioner's authorised official affirmed [the Public Body] 's refusal to amend the record.

Case Summary

Whether [the Public Body]  is in accordance with the provisions of the FOI Act in its refusal to grant an application under section 17 of the Act for the amendment of certain details in a letter sent to the applicant by the [Head of the Public Body], dated 4 December 2009.

Date of Decision: 25.01.2011

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

Background:

On 10 May 2010, the applicant sought the amendment under section 17 of the FOI Act of the following excerpts of a letter sent to him by the [Head of the Public Body] , dated 4 December 2009:

1. "I acknowledge that you are dissatisfied at the result of this review, which concluded that 'the board are satisfied with the outcome of the interview and see to reason to change the scores'.

It would seem that the applicant contends that two members of the board were not eligible to be on the board in the first instance and were thus not eligible to reconvene to review the marks initially awarded to him in a selection process for a Post of Responsibility (POR); and that it was not possible for them to have conducted a "meaningful review" due to the shredding of a presentation document that the applicant had initially given to the interview board. Thus, according to the applicant, the statement “the board are satisfied” is incorrect, incomplete and misleading.

2. "I am happy to confirm that, as recommended by me, a through review of how you were awarded marks at your POR interview took place ...".

The applicant appears to contend that the reference to a “thorough review” is incomplete, incorrect and misleading, because of the absence of the presentation document; the lack of evidence in the board's report that it had reviewed the marks awarded to the applicant for relevant experience (which the applicant said was contrary to the instructions given to the review board by the [Head of the Public Body], further to the outcome of Stage 3 of the Grievance Procedure as initiated by the applicant further to not having been awarded a POR). The applicant goes on to say that the marks originally awarded to him under this heading did not reflect his education and experience; that teleconferencing was not an appropriate way to conduct the board's review, and again that due to the ineligibility of two panel members, their views should not be relied upon.

He also specified the nature of amendment that he considered appropriate to make to the above. [The Public Body] ’s decision letter of 2 June 2010 refused the application. The applicant sought an internal review of this decision on 8 June 2010, largely reiterating points made above, and stating that the decision maker had ignored relevant facts contained in his initial application. [The Public Body] 's internal review decision of 14 June 2010 upheld its earlier refusal of the application.

The applicant made his application for review to this Office on 23 August 2010. In that application, in addition to repeating points made above, he stated that an error in the marks awarded to him at interview had only come to light before the hearing of his appeal to the Employment Rights Commissioner, which was further evidence of the lack of a thorough review; that the [Head of the Public Body] did not examine the board's report thoroughly and should have ensured that his recommendations were acted on; that material facts may have been withheld from the [Head of the Public Body] in this regard; that the [Head of the Public Body] allowed himself to be misled and that the internal review had not been carried out with due diligence.

In conducting my review, I have had regard to relevant details in the above correspondence (including copies of the letter the subject of the FOI application and the board's report); to relevant details in the various correspondence between the applicant, [the Public Body] , and this Office; and to the provisions of the FOI Act.

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

Scope of the Review

The scope of this review is confined to the sole issue of whether [the Public Body] 's refusal to make the amendments listed above is in accordance with the conditions of the FOI Act. It is not part of a review conducted under section 34 of the FOI Act, such as this, to assess the adequacy of [the Public Body] 's practices and procedures for dealing with FOI matters; thus, I will not be considering the adequacy of the internal review process as complained of by the applicant. Equally, it is not this Office's role to assess whether or not the members of the board should have been so appointed, or to assess the adequacy of the board's review of the marks awarded to the applicant in his interview.

Submissions

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Findings

Section 17 & The Onus of Proof

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.

The Information Commissioner considers that the onus of proof is on the applicant to provide evidence to support the contention that the personal information at issue is incomplete, incorrect or misleading. It should also be noted that, while previous decisions from this Office have found that opinions are capable of amendment under section 17 of the FOI Act, the applicant must demonstrate that the opinion is 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 factor rendering the decision dangerous to rely on. In the event that the details are demonstrated to be incomplete, incorrect or misleading, the review will then go on to consider whether the amendments suggested by the applicant are required, as opposed to another form of words.

Section 17 & the Amendments Sought

1. Amendment of the phrase "I acknowledge that you are dissatisfied at the result of this review, which concluded that 'the board are satisfied with the outcome of the interview and see to reason to change the scores".

In short, the applicant is seeking that this Office direct that the [Head of the Public Body]'s comment be amended on the grounds that the members of the board had no standing to conduct their review in the first place and furthermore, due to the inadequacy of their review, they had no reason to be satisfied with the outcome of the initial interview. While the applicant clearly feels that this Office is required assess these matters, such assessment would be outside the Office's remit. Having regard to the board's report, it is clear to me that it was satisfied with the outcome of its review, and that the [Head of the Public Body] had adequate factual evidence before him when stating his opinion that this was the case. I find the above statement does not warrant any amendment further to section 17 of the FOI Act, accordingly.

2. Amendment of the phrase "I am happy to confirm that, as recommended by me, a through review of how you were awarded marks at your POR interview took place ... ".

It is evident that the [Head of the Public Body] considers the interviewing panel to have conducted a thorough review of the applicant’s interview. His opinion can only be subject to amendment if the applicant demonstrates that the factual information underlying that opinion was totally inadequate; if there exists bias, ill will, incompetence, lack of balance or necessary experience in the [Head of the Public Body], or because of some other factor rendering his opinion dangerous to rely on. 

Firstly, I do not consider there to be any evidence before me in support of any notion that there existed any bias, ill will, incompetence, lack of balance or necessary experience on the [Head of the Public Body]'s part.

The applicant appears to contend that the [Head of the Public Body]'s opinion is based on an inadequate factual information: specifically that the report does not comment on whether or not the board had access to the presentation document, or on the appropriateness of marks awarded for relevant experience (notwithstanding the [Head of the Public Body]'s recommendation in this regard).

[The Public Body] states that the [Head of the Public Body] was satisfied that he had assigned the review to highly competent people whom he trusted to do what he directed in a right and honourable manner. He is stated as believing that, as nine people were initially interviewed, it would not have been difficult to recall the performance of the individual interviewees. [The Public Body] also states that the [Head of the Public Body] did not request a lengthy report, but that he had asked for a careful, methodical consideration of the marks awarded and a report to say whether or not the marks should be altered after such consideration. Accordingly, I do not consider it appropriate for me to find the fact, that the board's report may not contain as much detail as the applicant would like, to be sufficient proof of the contention that the factual information to which the [Head of the Public Body] had regard in forming his opinion was "totally inadequate" or that his opinion has been rendered dangerous on which to rely. I find the above statement does not warrant any amendment further to section 17 of the FOI Act, accordingly.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm [the Public Body]'s refusal to amend the above excerpts of the letter sent to the applicant dated 4 December 2009.

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 on which notice of the decision was given to the person bringing the appeal.

Seán Garvey

Senior Investigator

25 January 2011