Whether the CRS was justified in refusing to amend a birth certificate under section 17 of the FOI Act

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

Background

On 20 April 2012, Ms KSA's representative applied to the Civil Registration Service under section 17 of the FOI Act to have her daughter's birth certificate changed. The birth certificate had been issued in Roman script and the applicant requested the CRS to reissue it in Polish script.

On 23 April 2012, the CRS refused the application on the basis that it was not possible for it to produce documents in the form requested. On 27 April 2012, the representative sought an internal review of that refusal and on 10 May 2012, the CRS upheld its original decision. The representative then sought a review by the Information Commissioner on 22 May 2012.

Mr Derek Charles, Investigator, outlined his preliminary views to the applicant on 19 November 2012 and invited a response within two weeks. The applicant responded that she had no further submissions to make and thus I have decided to conclude this review by way of a formal binding decision.

In carrying out my review, I have had regard to the correspondence between the CRS and the applicant as detailed above; to correspondence between this Office and the applicant, particularly Mr Charles' letter of 19 November 2012; and to correspondence between this Office and the CRS. Finally, I have also had regard to the provisions of the FOI Act.

Scope of the Review

The Commissioner's review is concerned solely with the question of whether the CRS was justified in deciding to refuse Ms. KSA's application under section 17 of the FOI Act for the amendment of her daughter's birth certificate, to which I shall refer as " the record" throughout the rest of this decision.

Findings

Section 17(1) of the FOI Act provides that where personal information in a record held by a public body is incomplete, incorrect or misleading, the head shall 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.

Section 17(6) of the FOI Act provides a right of amendment of personal information, about an applicant's minor child, where information about that child as contained in a record held by a public body is incomplete, incorrect or misleading.

Mr Charles' letter of 19 November 2012 told the applicant that the Commissioner takes the view that the onus of proof lies on her as the party asserting that the information is incomplete, incorrect or misleading and the standard of proof required in such cases is that of "the balance of probabilities". Therefore, an applicant seeking to exercise the right of amendment under section 17 must satisfy the Commissioner that the personal information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

The applicant maintains that the birth certificate issued by the CRS is misleading in that, due to the spelling of her child's name in Roman rather than Polish script she "has been unable to access a Polish passport and PESL number for her child. The Polish authorities have indicated that they consider the birth certificate to be incorrect and therefore misleading as to her(the child's) identity".

In a letter from the CRS to this Office dated 5 July 2012, the Registrar General has stated "[t]hat the birth of the child is registered on the Register of births in English and any copy of this registration has to be an exact replica of what is inserted on the register to be authorised as a true and verifiable copy of the entry on the birth register". Apart from this I also understand that the software used in the CRS does not accommodate the use of characters from a range of other languages, including Polish, and that the implications of making such changes would involve significant costs which the CRS contends are not feasible at this time.

In the case at hand, I do not intend to make a finding on whether or not the fact that the name is not in Polish script, of itself, makes the record incomplete, incorrect or misleading. This is because section 17 empowers the Commissioner to direct that a public body carries out one of the three remedies listed at (i) to (iii) above. Given that the Commissioner has no legal power to direct the CRS to obtain the required software that would enable it to issue a certificate in a form acceptable to the applicant, it would seem to me that any direction by the Commissioner that the CRS attach to the impugned record a statement, or amend it, would be irrelevant, in that it would still not be possible for the CRS to issue any material in Polish script.

Accordingly, I find that I have no basis to direct the amendment of the record in the format sought by the applicant, even if I were to accept that the information at issue is incomplete, incorrect, or misleading.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the CRS's refusal to alter the record under section 17 of the FOI Act.

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.

Elizabeth Dolan
Senior Investigator
17 December 2012