Case 100205

The Commissioner's authorised official affirmed [the Public Body]'s refusal to make the requested amendments the subject of the review.

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 FOI Act for the amendment of two elements of a letter sent to the applicant by the [Head of the Public Body], dated 15 April 2010.

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 25 May 2010, the applicant sought, under section 17 of the FOI Act, the amendment or deletion of the following excerpts of a letter sent to him by the [Head of the Public Body], dated 15 April 2010:

1. Amendment of the term "Interview Board" (contained in paragraph 2 of the letter) to "Selection Panel/Committee";
2. Deletion of the term "[t]hat letter stands as it is", which was contained in paragraph 3 of the letter. The comment referred to various attempts made by the applicant to have the contents of a separate letter amended;
3. Amendment of the statement (contained in paragraph 4 of the letter) that states "[a]s [Head of the Public Body], I write to inform you that [the Public Body] Human Resources cannot accept any more requests for records in this connection inside or outside of the Freedom of Information [Act]" so that it refers only to requests made outside of the FOI Act;
4. Amendment of the statement (contained in paragraph 5 of the letter) that states "[s]hould any future requests be received, they will be filed on your personnel record. Confirmation of filing will be issued by E-mail to which you have full ... access" so that it refers only to any requests for information made by the applicant outside of the FOI Act.

[The Public Body]'s decision, dated 21 June 2010, refused the application, of which the applicant sought an internal review on 28 June 2010. [The Public Body]'s internal review decision of 13 July 2010 affirmed its earlier refusal of the application. On 23 August 2010, the applicant sought a review by this Office of [the Public Body]'s decision on his section 17 application.

Further to correspondence from this Office, [the Public Body] agreed to amend the statement at 3 above to read "[the Public Body] Human Resources cannot accept any more requests for records, in this connection, outside of the Freedom of Information Acts", and to amend the statement at 4 above to read "[s]hould any future requests be received, outside of FOI, they will be filed on your personnel record."

In conducting my review, I have had regard to relevant details in the above correspondence (including a copy of the letter the subject of the FOI application); 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

In light of [the Public Body]'s willingness to make the changes as set out above at points 3 and 4, I do not intend to consider these issues further. Thus, the scope of this review is confined to the sole issue of whether [the Public Body]'s refusal to make the amendments listed at 1 and 2 above is in accordance with the conditions of the FOI Act.

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 information the subject of the application is personal information in the first instance, and then that the information concerned is incomplete, incorrect or misleading and thus requires to be amended. 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.

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).

1. Amendment of the term "Interview Board" (contained in paragraph 2 of the letter) to "Selection Panel/Committee"

I do not consider the above description to comprise the personal information of the applicant, in that it is a description given by the [Head of the Public Body] to the group with responsibility for determining which [the Public Body] employee obtained a Post of Responsibility. Thus, I do not consider it to be capable of amendment under section 17 of the FOI Act in the first place. I find accordingly.

2. Deletion of the term "That letter stands as it is".

The comment referred to the [Head of the Public Body]'s statement that a letter sent to the applicant on 4 December 2009 would not be amended, despite various attempts on the applicant's part to this end. I have no grounds to consider that the statement is incorrect, incomplete or misleading, in that it is clearly an accurate statement of fact (or perhaps opinion) by the [Head of the Public Body] that, at the time of writing the letter the subject of the current application, the letter of 4 December 2009 would not be amended. Furthermore, my decision of today's date in case 100204 has found that [the Public Body] was in accordance with the provisions of the FOI Act in refusing to amend the letter concerned, further to an application under section 17 of the FOI Act. Under the circumstances, I have no reason to consider the term at issue to be in any way incorrect, incomplete or misleading, and so I have no grounds to direct its amendment. 

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 two excerpts of the letter sent to the applicant, dated 15 April 2010.

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