Case Number: 160011

Whether Revenue was justified in its decision to refuse to amend an opinion contained in a record stating that Revenue has always helped the applicant in every way that it could, on the ground that the opinion did not comprise personal information relating to the applicant

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review has its origins in a comment made by an Access Officer of Revenue during a telephone conversation with the applicant that "Revenue has always helped you in every way that they could". The statement was subsequently included in an email of 20 February 2015 from Revenue's Inquiry Officer to the applicant in response to his complaint under the Disability Act 2005 about his dealings with the Access Officer concerned.

On 4 December 2015 the applicant sought an amendment of the aforementioned statement under section 9 of the FOI Act. On the same date Revenue refused the applicant's request on the ground that he had not provided sufficient evidence to support his request for amendment.

On 15 December 2015 the applicant sought an internal review of Revenue's original decision. On 6 January 2016 Revenue issued an internal review decision, in which it refused the applicant's request on the ground that the statement did not constitute personal information within the meaning of section 2 of the FOI Act.

On 7 January 2016 the applicant applied to this Office for a review of Revenue's decision. During the course of the review Mr Benjamin O'Gorman of this Office contacted the applicant and outlined his view that the statement at issue was not personal information relating to him, for the purposes of the FOI Act. The applicant indicated he did not agree with Mr O'Gorman's view. Therefore, I consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between Revenue and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and Revenue.

Scope of Review

This review is concerned solely with the question of whether Revenue was justified in refusing to amend the statement specified by the applicant under section 9 of the FOI Act on the ground that the information contained in the record is not personal information relating to the applicant.

Analysis and Findings

In this case, the applicant is seeking amendment of the statement "Revenue has always helped you in every way that they could". For the purposes of this decision, I think it would be useful to quote in full the relevant paragraph in the record to put the statement at issue in context. In her email response to the applicant's complaint concerning his dealings with the Access Officer, the Inquiry Officer made the following observation:

"[The Access Officer] maintains that during your conversation you stated that you were not receiving assistance from Revenue Access Officers. It was in relation to this specific point that Ms [X] explained to you that Revenue has always helped you in every way they could. She was in a position where she could rightly make this assertion as it is based on fact and is backed up by Revenue records."

Section 9 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. For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would ordinarily be known only to the individual or members of his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Revenue's argument is that the statement in question does not fall within (a) or (b) of the definition, based on its understanding that this Office considered a similar argument previously in Case 000542 (Ms X. & A Department). In my view, Revenue's application of the Commissioner's findings in Case 000542 to this case is flawed. In the earlier case, the record at issue was described as a commentary on events at a particular meeting, as perceived by an official of the body, which contained nothing about the applicant of an essentially private nature but rather, concerned the actions of the individual, in her official capacity as a specified employee.

In this case, the statement, which appears to have been accepted by Revenue's Inquiry Officer as justified and supported by Revenue records, is essentially concerned with how Revenue considers it has treated the applicant in its dealings with him as a customer. In my view, such information is of a type that would, indeed, be held by Revenue on the understanding that it would be treated by it as confidential. Accordingly, I am satisfied that it is personal information relating to the applicant.

The FOI Act is silent on the question of where the onus of proof lies in cases where the amendment of personal information is sought. 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 9 must show that the information which is the subject of the application is on the balance of probabilities, incomplete, incorrect or misleading.

In his submission to this Office the applicant argued that the comment implies that Revenue's access officers have done not only what was required by the Disability Act 2005 but that they have gone longways beyond that, even to the point where a disproportionate effort was made, possibly even up to and including, the paying of his property tax. I do not accept that argument as I believe it to be an entirely unreasonable interpretation of the meaning and intent of the comment.

The applicant also argued that the number of communications he had to make to ensure his financial and taxation affairs were being handled correctly was a onerous burden on him. He further contended that Revenue had withdrawn the assistance of a legal interpreter it had previously provided to him to help him understand the legislative basis for the property tax and household charge. He argued that this withdrawal of assistance prevented him from understanding the correct interpretation of those pieces of law.

In a submission to this Office, Revenue detailed the assistance it contends it has offered the applicant over the past number of years. Revenue stated that its officials have made over 100 telephone calls lasting more than 10 minutes to the applicant's mobile number from 1 January 2013 to date. It also stated that Revenue offered to have a member of staff visit the applicant at his address and help him complete his Local Property Tax return.

In relation to the applicant's contention that Revenue withdrew the services of a legal interpreter, Revenue stated that the official in question spent 30 hours liaising with the applicant, primarily on the telephone. It stated that the applicant raised issues with the official as to the constitutionality of the Local Property Tax legislation. Revenue explained that as the official was not an expert on constitutional law he could only comment that the Attorney General had approved the legislation and that therefore he was of the view that it was constitutional. Revenue stated that the applicant insisted that it was Revenue's responsibility to explain the constitutionality of the legislation and that Revenue was in breach of disability legislation in its handling of the matter. Revenue stated that the applicant said it was pointless for the phone calls to continue and that is where the assistance ended.

Having considered the submissions of both parties, I am satisfied that the applicant has not demonstrated, on the balance of probabilities, that the statement that Revenue has always helped the applicant in every way that they could is incomplete, incorrect, or misleading. I find therefore, the Revenue was justified in refusing to amend the comment in question.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Revenue in this case. While I find that the comment at issue comprises personal information relating to the applicant, I find that Revenue was justified in refusing the request for amendment on the ground that information concerned is not incomplete, incorrect, or misleading.

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

Stephen Rafferty,
Senior Investigator