Case Number: 160434

Whether the HSE was justified in its decision to refuse to amend certain personal information about the applicant, under section 9 of the FOI Act

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

Background

On 9 June 2016 the applicant applied to the HSE for the permanent removal of certain personal information from her medical files, on the basis that it was "unsettling, inaccurate and damaging...these comments, statements and this unwarranted and inaccurate information and diagnosis bear no place in my medical records". By letter dated 14 July 2016, the HSE refused the applicant's request on the ground that the applicant had not proven on the balance of probabilities that the information was incorrect, incomplete or inaccurate. On 13 September 2016, the applicant applied for an internal review. By letter dated 22 September 2016, the HSE issued its internal review decision, in which it affirmed its original decision. On 3 October 2016 the applicant applied to this Office for a review of the HSE's decision.

In conducting this review I have had regard to the HSE's decision on the matter; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the content of the records, provided to this Office by the HSE for the purposes of this review; and to the provisions of the FOI Act.

Scope of the Review

In her submissions, the applicant refers to negative experiences which she had at a certain hospital and it is clear that she was not happy with her treatment by certain medical professionals. I should emphasise at the outset that my remit does not extend to conducting an investigation into the HSE's treatment of the applicant. The sole question for me is whether the HSE was justified in refusing the applicant's request to have certain personal information amended or removed from her medical files, on the basis that it is incomplete, incorrect or misleading, under section 9 of the FOI Act.

I have adopted the HSE's numbering of the records (1 - 17). During this review, the applicant referred me to two additional records. As it is not clear to me that these records fell within the scope of the HSE's internal review decision, I have excluded them from the scope of this review. In any event, the amendments which the applicant seeks in respect of these records are of the same kind as those which I address in my decision below.

Analysis and Findings

Section 9 - Amendment of records relating to personal information

Subsections 9(1) and (2) of the FOI Act provide as follows:

"(1) Where personal information in a record held by an FOI 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 -

(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.

(2) An application under subsection (1) shall, in so far as is practicable --

(a) specify the record concerned and the amendment required, and
(b) include appropriate information in support of the application."

The Information Commissioner's approach to Section 9

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 Commissioner also considers 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.

Section 9(2)(b) requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application". The Commissioner does not see his role 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. The Commissioner takes the view that he would not be justified in directing that an FOI body amend its records on the sole basis of contrary statements or opinions - however strongly held - by the person seeking the amendment. Thus, the applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

The information concerned must be personal information within the meaning of the FOI Act. If it is not personal information relating to the applicant, the right of amendment under section 9 does not exist. 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 about opinions that are incorrect, in addition to the right of amendment of incomplete or misleading opinions. The Commissioner's view, however, is that section 9 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 9 is made. He would expect an applicant to satisfy him that an opinion is somehow flawed, by reason of the total inadequacy of factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely on.

Finally, the Commissioner does not consider that medical notes must contain a word for word account of what was said between medical staff and patient, but rather that they are intended to contain an overall summary of the relevant consultation, treatment etc. The evidential value of the record and the extent (if any) to which any decisions or other actions would be potentially affected by the information in the original record are also relevant concerns.

Submissions

During this review, this Office asked the applicant to clarify which information she sought to be amended or removed and on what basis. The applicant clarified that she seeks amendments and/or deletions in relation to certain statements and terms contained in records 1, 2, 3 (copied at 17), 4 (copied at 5), 6, 7 (copied at 9), 8, 10, 11, 12, 13, 14, 15-16. She submits that the information concerned is inaccurate and misleading. She gives reasons in respect of each relevant record. I would like to highlight three particular concerns which the applicant raises. First, she submits that all references to a certain doctor should be removed from her file. This is for reasons which I have taken into consideration but do not propose to set out here, in the interests of protecting the applicant's personal information. Secondly, she submits that the use of a particular term about her is inaccurate and misleading, as she has never been diagnosed with the condition which the term denotes. Thirdly, she says that record 6 should be removed since it is unnamed and unsigned.

The HSE submits that the records reflect the applicant's contacts with the hospital, the care given and the clinical opinions of healthcare professionals. It says that the clinical notes reflect the view and clinical assessment carried out at that particular date and time by the treating clinician. It says as follows about the three points which I highlight above. First, it submits that removing references to the doctor concerned would render the records incomplete and inaccurate. It submits that it would not be in a position to redact information that would undermine evidence in a record that standards are being met, including the standard which requires referring patients to other doctors or health professionals. Secondly, it submits that the term which the applicant disputes reflects the medical view of the treating clinician after the clinical assessments were carried out. Thirdly, it says that record 6 is a handwritten note which mirrors information outlined in a certain doctor's letter and as it is consistent with other information on file, it should not be removed. The HSE further submits that the amendments requested are not something to be taken lightly, given the implications for the evidentiary value of the care that was provided to the applicant at that time. It says that deletion of information may leave gaps in the medical record chart and make other documents and events in the applicant's medical record chart inexplicable in the light of the deletion.

Analysis & Finding

The information concerned consists of opinions and observations by medical professionals about the applicant, in addition to factual statements about the applicant having seen and been diagnosed by a particular doctor. I accept that this information qualifies as personal information under section 2 of the FOI Act, on the ground that it includes "information relating to the educational, medical, psychiatric or psychological history of the individual" (i) and the "views or opinions of another person about the individual" (xiv).

The applicant's submissions set out a context for each of the various statements and terms which she disputes and her reasons for objecting to their inclusion in her medical records. I
recognise that the records involve sensitive and personal matters and, moreover, I respect the fact that the applicant's opinions differ from those of the records' authors in certain aspects. Yet the fact that the records may not reflect the context and background in the way the applicant wishes does not, of itself, render the records incomplete, incorrect or misleading.

My role is confined to considering whether the applicant has provided sufficient evidence to satisfy me that the records are incorrect, incomplete or misleading. I consider that directing the amendment of, or deletion of information from, 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.

I have no evidence before me to doubt that the factual statements reflect the applicant's contacts with the hospital and that the opinions and observations reflect the opinions and observations of the medical professionals at that time. I have no supporting evidence before me to indicate that the opinions expressed in the information concerned are biased, in bad faith or otherwise flawed. As noted above, a statement by the applicant to the contrary is, of itself, an insufficient basis for concluding that the information should be amended under section 9 of the FOI Act.

In the circumstances, I do not have evidence before me on which to find that on the balance of probabilities, the information concerned is incomplete, incorrect or misleading.

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to refuse to amend the records.

In cases such as this where a section 9 application is refused, the FOI Act requires the FOI body to attach to the record concerned the application for amendment, a copy of the application or a note indicating that it has been made. This in itself is quite significant as it alerts all future users of the record that aspects of its contents are disputed by the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse to grant the applicant's application under section 9 of the FOI Act. I direct that a copy of the applicant's request and supporting documentation is included in the applicant's medical records in accordance with the provisions of section 9(4)(a)(i) of the FOI Act.

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.

Elizabeth Dolan
Senior Investigator