Whether amendment of a record of allegations made against the applicant that had been prepared by a social worker was required under section 17 of the FOI Act

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

Background

In an application to the HSE dated 21 January 2012, the applicant sought amendment under section 17 of the FOI Act of a record of allegations made against him. The record had been prepared by a social worker named Ms. Y in connection with another application that had been made to the Social Work Department and which was ultimately unsuccessful for reasons relating to the allegations. The applicant's amendment application was refused by the HSE on the basis that the applicant had produced no evidence to show that the record of allegations was inaccurate, incomplete or misleading. By letter dated 2 April 2012, the applicant applied to this Office for a review of the HSE's decision.

On 19 July 2012, Mr. Sean Garvey, Senior Investigator, wrote to the applicant and notified him of his view that the HSE's decision to refuse his application for amendment was correct. However, Mr. Garvey invited the applicant to provide some objective evidence in support of his application. In reply, the applicant provided his own written statement dated 25 July 2012 regarding the events underlying the allegations, but he did not provide any supporting objective evidence.

Subsequently, on 27 September 2012, Ms. Melanie Campbell, Investigator, issued a letter to the applicant to explain to him the scope of the review in this case and her preliminary view on the matter. In Ms. Campbell's view, the applicant did not establish any basis for amendment of the record concerned. The applicant was given a period of three weeks in which to reply.

In a reply dated 29 September 2012, the applicant suggested that relevant evidence may be found by contacting the Garda Síochána and the St. John of God Centre in Stillorgan, Dublin. He also indicated that "other official records" would be "dealt with later". However, although it has been explained to the applicant that he bears the burden of proof in this matter, he has not produced any evidence in support of his application to date, nor has he requested an extension of time in which to do so.

Accordingly, with the authority delegated to me by the Commissioner, I have decided to conclude the matter by way of a formal, binding decision. In carrying out my review, I have had regard to the applicant's submissions, including his reply to Ms. Campbell's preliminary view letter.

Scope of the Review

My review in this case is concerned solely with the question of whether amendment of the record of allegations made against the applicant that was prepared by Ms. Y is required under section 17 of the FOI Act.

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 record shall be amended "by altering it so as to make the information complete or correct or not misleading, as may be appropriate, 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 by deleting the information from it" (section 17(1)(i), (ii) and (iii)). Section 17(2)(b) specifies that any application for amendment of records relating to personal information must, insofar as is practicable, "include appropriate information in support of the application."

It is well settled that an applicant seeking to exercise the right of amendment under section 17 of the FOI Act bears the onus of proving that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading. It is also generally accepted that the right of amendment of personal information includes the right of amendment of views or opinions of another person about the individual concerned that are shown to be incomplete, incorrect, or misleading. However, as the former Commissioner explained in Case Number 98158, Mrs. ABZ and the Office of the Revenue Commissioners(2000), which is available on this Office's website at <www.oic.gov.ie>, "section 17 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 17 is made." An applicant is expected to show 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 relation to this case, I note that a record of allegations is not intended to be read as a record of the truth of the statements recorded; rather, it is simply a record that the statements have been made. The applicant's primary objection to the record at issue seems to be, not the facts underlying the allegations themselves, but rather the understated nature in which the allegations were recorded by Ms. Y. He believes that his sister was the source of the allegations and that the nature and number of the allegations were far more excessive than what is reflected in the record. The inference is that Ms. Y deliberately understated the allegations in writing in order to protect herself and the applicant's sister from legal action for the manner in which the applicant believes that they have violated his Constitutional and human rights.

However, as Ms. Campbell explained in her preliminary view letter to the applicant, the fact that the allegations may not be recorded in a verbatim manner does not necessarily mean that the record is incomplete, incorrect or misleading for the purposes of section 17 of the FOI Act. Despite being given ample opportunity in which to do so, the applicant has not produced any evidence to show that the record does not, in substance, accurately reflect the allegations that were made against him. While the applicant also disputes the truth of the allegations, at least in part, again, he has not any presented evidence to show that the allegations as recorded are without factual basis or otherwise "dangerous to rely upon". On the contrary, some of the applicant's own statements tend to substantiate a number of the allegations, though he provides a different version of the events concerned. In the circumstances, I find that no amendment of record of allegations is required under section 17 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.

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 after notice of the decision was given to the person bringing the appeal.

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Stephen Rafferty
Senior Investigator
31 October 2012