Case 120016

The Senior Investigator found that the decision of the HSE was justified in this case.

Case Summary

Whether the decision by the HSE not to grant a request under section 17 of the FOI Act to amend records held on a personnel file is justified.

Date of Decision: 06.06.2012

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

Background:

On 13 June 2011, the applicant sought the removal of two employment references dated 28 February 2011 and on 4 May 2011 from her personnel file in accordance with the provisions of section 17 of the FOI Act on the ground that they are misleading.  The HSE refused the application, a decision which was affirmed on internal review on 18 August 2011. On 24 January 2012, the applicant sought a review by this Office of the HSE's decision.

During the course of the review, this Office received a number of reports from the HSE and copies of the records at issue. On 8 May 2012, Maurice Kiely, Investigator, informed the applicant of his preliminary view that the decision of the HSE was justified in this case.  Mr. Kiely invited the applicant to make further submissions if she disagreed with his preliminary view but as none have been received I have decided to conclude this review by issuing a formal decision.

In conducting this review I have had regard to the provisions of the FOI Acts, the relevant submissions of the HSE and those of the applicant, and to the records at issue.

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

Scope of the Review

The scope of this review is concerned solely with the question of whether the decision by the HSE not to remove the two employment references from the applicant's personnel file is justified under section 17 of the FOI Act.

Submissions

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Findings

Section 17 of the FOI Act provides for the amendment of personal information in a record held by a public body where that information is incomplete, incorrect or misleading.  The Act is silent on the question of where the onus of proof lies in such cases.  The Information Commissioner takes the view that, in the absence of any express statement in the FOI Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading.  The Act is also silent as to the standard of proof which should apply in such cases.  The Commissioner takes the view that the standard of proof required is that of "the balance of probabilities".  It follows that an applicant, seeking to exercise the right of amendment under section 17 must show that the information which is the subject of the application is on the balance of probabilities, incomplete, incorrect or misleading.

The records at issue in this case consist of employment references, entitled Reference Check Forms, which were jointly completed by the applicant's former managers.  The two references are identical in terms of content, apart from the completion dates.  The applicant seeks the removal of the references from her personnel file as she considers that  they contain misleading information. In accordance with section 17(4)(a)(i) of the FOI Act, the HSE attached her FOI application to the references on the personnel file in order that her comments thereupon would be noted.

Having examined the references at issue, I am satisfied that they contain the opinions of the applicant's former managers of her work performance for the period covered by the references.  Mr Kiely has explained in his preliminary views letter of 8 May 2012 how the Commissioner and her Office approaches such cases so I do not propose to repeat same in detail other than to re-iterate that where an amendment (including a deletion) of an opinion is sought certain expectations apply. The Commissioner would expect the applicant to satisfy her 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.

In this case I am not satisfied that the applicant has sufficiently established a deficiency in the opinion of the HSE referees as expressed in the references. Indeed, it seems to me that the applicant does not dispute the accuracy of the opinions. Instead, she argues that the references are misleading as they do not refer to an incident which the applicant considers to have led to the performance issues.  Having regard to the submissions of the HSE on the matter, I find that the applicant has not shown, on the balance of probabilities, that the records contains personal information which is incomplete, incorrect or misleading.  I find, therefore, that the decision of the HSE to refuse to remove the records at issue from the applicant's personnel file is justified in this case.

Decision

Having carried out a review under Section 34(2) of the Freedom of Information Act 1997, as amended, I hereby decide that decision of the HSE to refuse to remove the records at issue from the applicant's personnel file is justified.

Right of Appeal

A party to a review, or any other person affected by the 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 on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator

06 June 2012