Case Number: 160099

Whether UCD was justified, pursuant to section 9 of the FOI Act, in refusing to amend a record containing personal information relating to the applicant in the manner sought

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

On 7 December 2015 the applicant submitted a request to UCD to remove a comment relating to him contained in an interview scoresheet. UCD refused the request on the ground that the information concerned was not incomplete, incorrect or misleading. On 24 January 2016, the applicant sought an internal review of UCD's decision. On 15 February 2016, UCD issued its internal review decision, affirming the original decision. The applicant sought a review by this Office of UCD's decision on 29 February 2016.

During the course of this review UCD agreed to amend the comment at issue in an effort to settle the case. The applicant has indicated that he was not wholly satisfied with the amendment made. Accordingly, I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review I have had regard to correspondence between the applicant and UCD in relation to the request and to correspondence between this Office and both the applicant and UCD on the matter.

 

Scope of Review

This review is solely concerned with whether UCD was justified in refusing to remove the comment contained in the interview scoresheet on the ground that it is not incomplete, incorrect or misleading.

 

Preliminary Matters

In his original FOI request, the applicant also sought access to records and a statement of reasons from UCD in relation to the matters concerned. These aspects of his request and subsequent applications for review to this Office were dealt with separately (Case Nos. 160101 and 160102 refer) and do not form part of this review.

 

Analysis and Findings

Section 9 of the FOI Act provides that where personal information in a record held by an FOI body is incomplete, incorrect or misleading, the body shall amend the record-

"(a) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,
(b) 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
(c) by deleting the information from it."

The record at issue in this case is entitled "Definitive Interview Score-Sheet". It contains details of the ratings awarded by the Interview Board under various headings in relation to the applicant. It also contains a number of comments under the heading "Qualitative Feedback Agreed by All Board Members" including the comment "LACKING ENTHUSIASM ABOUT SOME ASPECTS OF JOB". It is this comment that the applicant sought to have removed. In its internal review decision, UCD stated that the comment reflected the opinion of the interview panel and that it saw no reason to regard the comment as misleading or inaccurate.

In a submission to this Office, the applicant stated that he contacted UCD and asked that the record at issue be corrected in a common sense manner and that he made suggestions as to how the record might be modified. He suggested, as an example of a satisfactory correction, that the comment could be amended to read "The Board felt he may have been lacking enthusiasm for some aspects of the job". He expressed his view that "the absolutism of the original comment written in all caps should be removed", and that the comment is "inaccurate, derogatory, poorly written, ambiguous and unprofessional" and that it is "grammatically inaccurate".

During the course of the review, Ms Sandra Murdiff of this Office asked UCD if it would be willing to make the change suggested by the applicant. While UCD stated it remained of the view that the statement was not incomplete, inaccurate or misleading, it agreed to make the amendment in an effort to settle the case, and the applicant indicated to this Office that he would be willing to settle the case on that basis. UCD notified the applicant of the amendment on 15 June 2016. The original comment was struck out and the new comment, as suggested by the applicant was included on the record. However, the applicant subsequently contacted this Office and stated that he was not happy with UCD's response as the original comment was still legible.

Ms Murdiff then informed the applicant of her view that he had not provided sufficient evidence to demonstrate that the statement was incomplete, incorrect or misleading and invited him to make a submission in this regard. He stated that he did not accept that he was lacking enthusiasm about some aspects of his job and felt that "rigour should be applied to written comments recorded by UCD" concerning the formal interview.

The FOI Act is silent on the question of where the onus of proof lies in cases where the amendment of a record is sought. The 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 in such cases is that of "the balance of probabilities". It follows that an applicant, seeking to exercise the right of amendment under section 9, must show the Commissioner that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

The Commissioner does not see his role, arising from section 9, 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, and to any rebutting evidence put forward by the FOI body, and make a decision on that basis. 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 to enable the Commissioner to conclude 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 definition of "personal information" includes "the views or opinions of another person about the individual". Thus, the right of amendment of personal information includes the right of amendment of opinions that are incorrect, in addition to the right of amendment of incomplete or misleading opinions. Where the amendment of an opinion is sought, the Commissioner would expect an applicant to satisfy him 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 the particular circumstances of this case, I do not consider that the applicant has provided sufficient evidence to support his assertion that the original comment is incomplete, incorrect or misleading. The comment reflects the opinion of the interview panel which it formed having interviewed the applicant. The fact that the applicant may disagree with the opinion does not, of itself, provide a sufficient basis for amending the opinion. As Ms Murdiff informed the applicant, generally speaking, this Office is slow to disturb the marks awarded and comments made by interview boards in the absence of strong evidence that such decisions or comments are somehow flawed. I would add that in my view, there is very little difference in substance between the original statement and the amendment suggested by the applicant, which UCD made to the record. Furthermore, the fact that the comment was written in capitals or that it may not be gramatically correct does not mean that it comprises personal information that is incomplete, incorrect or misleading.

Even if I was to accept that the original comment is incomplete, incorrect or misleading, the Commissioner's view is that the deletion of information from a record on foot of an application under section 9 is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. Furthermore, if a statement is added to the record by an FOI body and the matter is appealed to the Commissioner, it is only if the statement is found to be less than adequate that it becomes necessary for the Commissioner to consider what alternative form the statement might take.

In any event, as I do not consider that the applicant has provided sufficient evidence to support his application for amendment, I find that UCD was justified in refusing to amend the comment in question in the manner sought.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm UCD's decision to refuse to amend the record in the manner sought by the applicant.

 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, 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