Whether the Defence Forces was justified, pursuant to section 17 of the FOI Act, in its decision to refuse to amend a report on Naval Transportation

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

Background

The applicant made an undated FOI request to the Defence Forces seeking a number of amendments to information contained in a record entitled Naval Transportation Working Group Report ("the Report"), dated 16 April 1999. The amendments sought were in relation to the following statements:

NO rating presently serving as a Motor Transport Driver ("MTD") or Motor Transport Fitter ("MTF") has any desire to become part of the sea-going navy.
2. ALL personnel serving in Naval Transport Section joined that section in the full knowledge that they were leaving the mainstream navy to go into a promotional backwater....
3. All serving MTDs have been interviewed and all stated that they do NOT see themselves either commencing or re-commencing a seagoing career.
4. ...[t]he initial stance adopted by the present MTDs is that they do NOT wish to join, or rejoin, the Seaman's Branch.
[original emphasis]

The applicant contended that not all serving staff were interviewed for the preparation of the Report and that the comments above did not reflect his opinions or aspirations and sought amendments to the statements on that basis.

In its decision on 6 August 2013, the Defence Forces refused the request on the grounds that it did not consider the relevant information to be misleading or incorrect. The applicant made an internal review request on 16 August 2013 and, on 16 September 2013, the Defence Forces upheld its original decision on the same grounds. On 16 October 2013 the applicant applied to the Commissioner for a review of the Defence Forces' decision.

As the positions of the applicant and the Defence Forces fundamentally differ, I have decided to conclude this review by way of a formal binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the Defence Forces' decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Defence Forces, to the record at issue and to the provisions of the FOI Act. I have also had regard to various letters sent by Ms Sandra Murdiff, Investigating Officer to the applicant and the Defence Forces, as well as their submissions in reply.

Scope of Review

This review is concerned solely with the question of whether the Defence Forces was justified in refusing to amend the record as sought by the applicant.

Preliminary Matters

It is important to note that the Commissioner's remit does not extend to adjudicating on how public bodies carry out their functions generally. This Office does not have the authority to investigate complaints against public bodies. The Commissioner's role in relation to section 17 of the FOI Act is confined to deciding if information in a record is personal information, whether that information is incomplete, incorrect or misleading, and if so, the appropriate form of amendment.

I also note that the Defence Forces has raised a number of issues in its submission relating to the applicant's motives for his request. Section 8(4) of the FOI Act requires that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the requester has for making a request. Consequently, this review is confined to considering whether the Defence Forces' decision was justified in the context of the FOI Act.

Analysis and Findings

Section 17
Section 17(1) of the FOI Act deals with the amendment of personal information relating to an applicant. It provides:

"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, in writing or in such other form as may be determined, 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."

Personal Information

Section 2 of the FOI Act defines personal information as "information about an identifiable individual" that meets certain conditions. In addition, the definition contains a list of twelve specific types of information, including information relating to the employment or employment history of an individual, as well as the views or opinions of another person about an individual.

The comments in question are ascribed to all of the MTDs serving in the section, of which the applicant was one. While the applicant is not referred to specifically, the Report is written in such a way that it would appear to anyone who read it and knew that he served in that section that he was interviewed for its preparation and held the opinions mentioned. I am satisfied that the statements above constitute personal information in relation to identifiable individuals, including the applicant and that, accordingly, section 17 of the FOI Act may be invoked in relation to this personal information. The Defence Forces has not at any stage disputed that the information in the Report comprises personal information in relation to the applicant. Accordingly, in my view it is not necessary to consider this aspect further.

The onus of proof and the standard of proof
The previous Commissioner has already outlined in the decision in Case No. 98158 (Mrs ABZ and the Office of the Revenue Commissioners, available on our website www.oic.ie) how an application under section 17 might succeed. In that decision, the then Commissioner found that the "onus of proof in such cases lies with the applicant as the party asserting that the information is incomplete, incorrect or misleading" and that the standard of proof in such cases is that of the "balance of probabilities". The former Commissioner went on to describe what the applicant would be expected to provide in terms of proof, stating that:

"The assessment of whether certain factual information is incorrect will often be straightforward. However, it is possible to envisage a case in which an applicant challenges the version of events concerning him or her contained in a record. In such cases a right of amendment exists provided the applicant shows that, on the balance of probabilit[ies], the account of events, to the extent that it concerns him or her, is not in accordance with the facts or is erroneous or inaccurate."

The Commissioner went on to say that:

".....However, in my view, 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. ............... I would expect the applicant to satisfy me 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."

The current Commissioner concurs with his predecessor's views in respect of the standard of proof and he accepts that there is an obligation in section 17(2)(b) which requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application." The amount of information provided to support a claim and whether or not it is capable of being verified, and by what means, will vary depending on the type of record at issue. However, the onus is on the applicant to satisfy the Commissioner that, on the balance of probabilities, the information is incomplete, incorrect or misleading.

The Commissioner does not see his role, arising from section 17, as being to conduct his own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, he must have regard to the evidence actually provided by the applicant, to any rebutting evidence put forward by the public body and make a decision on that basis. The applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

Directing the amendment of the records of a public body is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of a public body is not something to be decided upon lightly. It is reasonable, particularly in view of the requirement that the applicant's account be attached to the file concerned, that the applicant be asked to provide evidence to support his or her contention that the record is flawed.
In requiring the applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, the Commissioner is not making any prior judgement as to the accuracy of a record. The fact that an applicant fails to provide sufficient evidence that the information in a record is incomplete, incorrect or misleading will cause the records to remain undisturbed; but this does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.

The question I must consider in this case is whether the evidence the applicant has submitted to support his argument is sufficient to satisfy me that the information contained in the statements he wishes to have amended is, on balance, incomplete, incorrect or misleading. In the course of this review I have carefully examined the Report in question and the submissions from both parties. I note that the events in question occurred over 15 years ago and I note also the absence of contemporaneous records. I acknowledge the difficulty involved in expecting people to recall these events with a high degree of accuracy.

The applicant contends that he worked in the section referred to in the Report at the relevant time and was not interviewed for the purposes of its preparation. He also contends that not all of his colleagues were interviewed in this regard, despite what is stated in the Report and that the record should be amended to reflect this. He admits that while he cannot categorically state that none of the personnel were interviewed, he is of the opinion that not all were. In support of his contentions he has submitted signed statements from a number of staff who served in the section at the time the Report was prepared, which say that they were not interviewed for the purposes of its preparation, and has stated that he could provide statements from other staff if required. The applicant also submitted a copy of a letter from his Commanding Officer dated 4 March 2013 which states that there is no record in the applicant's personnel files or any files in the Road Transport area of the applicant being interviewed in respect of the Report. I note, however, the Defence Forces' contention that records were not kept of the interviews/meetings held while drafting the Report, which would explain the lack of records on file.

The applicant asserts that the statements in the Report relating to the expectations and aspirations of the staff concerned do not reflect his own personal experience or opinions. He also asserts that he was assigned to the section straight out of recruit training and would not have known that he was entering a "promotional backwater".

The decision maker's decision not to amend the Report was based on the submission of the Flag Officer Commanding the Naval Service, who is the only member of the Working Group who authored the Report still serving in the Naval Service. The Defence Forces contends that it would not be normal practice to retain notes created by a Working Group preparing a report like the one in question. In the absence of interview notes or any supporting records regarding the drafting of the Report, the Defence Forces has supplied statements to this Office from the three authors of the Report which assert the following:

A meeting was held wherein the staff expressed the views referred to in the Report.
The staff were interviewed on a one-to-one basis.
A frank, open discussion was held and all MTDs were clear that they wanted to remain in the section, and were aware of their options, including those who had responded to the request for MTD volunteers when they were in recruit training.
That it was made perfectly clear to the section that the consequences of their desire not to skill up for seagoing duties would drastically diminish their already limited promotional prospects.

I note that one of the authors of the Report states that the staff were interviewed "on a one on one basis in the old [Commanding Officer Haulbowline] block next to the new Wardroom", but then goes on to state that he was not present at these interviews. The second author states that it is his recollection that the staff were interviewed but he does not elaborate further and the third does not refer to interviews at all. I note that Ms Murdiff asked the Defence Forces to clarify exactly who conducted the interviews in question and to provide any other information it could to support the authors' views that they took place. Despite the above assertions and the authors' stated recollections that the staff were interviewed, the Defence Forces has been unable to supply any details of when the interviews took place or who conducted them. It cites the time lapsed and the absence of contemporaneous records as reasons for this inability to provide any further details. However, it contends that the Report has stood unchallenged for over a decade and continues to maintain its accuracy in all respects. It also contends that the authors of the Report were aware that two members of staff in the section had entered it directly from recruit training and were satisfied that they understood the nature of the section and the lack of promotional prospects therein. It further contends that the criteria for promotion within the Naval Service is clearly set out in the Defence Forces Administrative Instructions A10, which are circulated widely prior to each promotion competition and would have been available to the applicant and his colleagues in the section.

Conclusion

While assertions by the applicant or other staff members do not, of themselves, constitute evidence which would warrant an amendment of all of the statements in question, I am of the view that, on the balance of probabilities, not all of the staff in the section were formally interviewed for the purposes of the Report. While I am of the opinion that the Working Group spoke to staff in the section in the course of completing the Report and that the issues concerned were discussed, there is no evidence before me to show that all of these discussions took the form of formal, one-to-one meetings, which is what most people, including the Defence Forces, the applicant and his colleagues, would understand as "interviews". Accordingly I find the statement "[a]ll serving MTDs have been interviewed and all stated that they do NOT see themselves either commencing or re-commencing a seagoing career" to be misleading or incorrect. On that basis, I direct that the Defence Forces attach a statement to the Report as follows:

"Following a section 17 application under the Freedom of Information Act, the Information Commissioner found, based on the evidence available, that the applicant was not interviewed for the purposes of the preparation of the Report."

This statement should be added to all copies of the Report dated 16 April 1999, both paper and electronic versions.

In respect of the other three statements the applicant has sought to have amended (numbered 1, 3 and 4 above) it seems to me that, in the course of this review, the applicant has relied primarily upon his own assertions of fact to contradict the contents of these statements, and has produced little by way of satisfactory independent evidence. Clearly there are different accounts of the consultation which took place in preparation of the Report. It seems to me that the Report contains what is essentially the opinions of the authors of the Report following the Working Group's examination of the structures in place. In my view the Group was entitled to form these opinions, having spoken to a number of the staff concerned and I have no reason to believe that the Report was prepared in anything other than a fair and honest manner. I note that the Defence Forces has stated that none of the 13 other member of the Naval Transportation section at the relevant time have sought to have the Report amended. It also states that the applicant has not sought to go to sea at any time since the publication of the Report in question, nor has he opted to skill up for seagoing duties in this time, both of which would negatively affect his promotional prospects. It asserts that this does not support his contentions relating to the inaccuracy of the statements in question. In the course of this review the Defence Forces has continued to strenuously defend the accuracy of the Report and the opinions therein. In my view, the applicant has not demonstrated that, on the balance of probabilities, the statements in question are incomplete, incorrect or misleading.

Having regard to the foregoing, as well as the absence of evidence to support his application, I am of the view that the applicant has not discharged the onus upon him to show sufficient reasons for the statements in question (numbered 1, 3 and 4 above) to be amended pursuant to section 17 of the FOI Act. I find accordingly.

It should be emphasised that the finding that the applicant has failed to discharge the burden of proof does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.

It is important to note that in all cases where a section 17 application is refused, the FOI Act requires the public body to attach to the record concerned a copy of the application for amendment which will contain the details and contentions put forward by the applicant. In its submissions to this Office the Defence Forces has stated that a copy of the applicant's request to amend the Report is now attached to the Report and that this will leave any future reader of the Report in no doubt that the validity of the Report is contested by the applicant.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby vary the Defence Forces' decision and direct that a statement be attached to the Report as follows: "Following a section 17 application under the Freedom of Information Act, the Information Commissioner found, based on the evidence available, that the applicant was not interviewed for the purposes of the preparation of the Report." I affirm the Defence Forces' decision to refuse to make the amendments sought to the three remaining statements concerned in accordance with 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.

Stephen Rafferty
Senior Investigator