Case Number: 170259

Whether TUSLA was justified in its decision to refuse to grant the applicant's section 9 application, for the deletion of any comments on its records reflecting what the applicant was alleged to have said in an admission to a particular hospital (the Hospital)

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 2 March 2017, the applicant sought, under section 9 of the FOI Act, the deletion of certain comments in records held by TUSLA about her family and herself.

TUSLA's decision of 22 March 2017 told the applicant it was refusing to grant her section 9 application, particularly because she had not provided appropriate supporting information. The applicant sought an internal review of this decision on 3 April 2017, which TUSLA affirmed on 24 April 2017.

On 26 May 2017, the applicant sought a review by this Office of TUSLA's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, TUSLA, and the applicant. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not TUSLA was justified in refusing the applicant's section 9 application to have certain details deleted from her family's records, on the basis that they are incomplete, incorrect, or misleading. It does not extend to assessing the adequacy of the Hospital's record keeping, or establishing, as a matter of fact, what the applicant said to the Hospital's nursing staff on the admission in question.

Findings

The Information the Subject of the Section 9 Application
The Hospital sent a referral to TUSLA saying that, during the applicant's recent admission, she had told staff in the Emergency Department that she had certain intentions in relation to her children. A Supervision Order was granted by the Courts further to TUSLA's intervention. I understand that TUSLA closed its file on the family some time ago.

The applicant denies making such a comment to the Hospital's Emergency Department staff, and does not want this allegation to remain on her file. She says that the Hospital's admission notes do not record her as having said that she wanted to harm her children, but that a nurse subsequently emailed TUSLA, at TUSLA's request, to confirm that this conversation took place. Finally, the applicant says that the Hospital has "apologised for the admission records being below standard." She also says that a child protection Care Order was denied by the Courts.

Section 9 - Amendment of records relating to personal information
Section 9 of the FOI Act provides 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.

Onus of Proof on Applicant
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 nature and extent of information to be provided to support a claim and whether or not it is capable of being verified, and by what means, will vary on the type of record at issue. The question I must consider in this review is whether the evidence which the applicant has submitted to support her arguments is sufficient to satisfy me that the information the subject of her section 9 application is, on balance, incomplete, incorrect or misleading. It is also important to note that where an applicant fails to provide sufficient evidence to enable the Commissioner to conclude that the information in a record is incomplete, incorrect or misleading, the records 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.

Arguments Made
The applicant has supplied this Office with copies of records released to her by TUSLA. She has also supplied some letters she received from the Hospital, including a letter expressing regret that "the record keeping regarding her admission ... did not meet the HSE's record management standards. ... The process of record-keeping is being reviewed currently and workshops on the new HSE Policy on Child Protection will include emphasis on the importance of thorough and complete record-keeping." She also provided copies of her nursing notes from the Hospital regarding the admission concerned. They do not appear to say that the applicant said she wished to harm her children.

TUSLA maintains its position that the applicant has not provided sufficient information in support of her application. It refers to the Hospital referral, and other contacts, which it says give context to its involvement with the family. It also refers to the duty imposed on it under the Child Care Act 1991 to pursue concerns raised about the protection and welfare of children. It says it is required to keep records on its activities and actions and is obliged to keep such records indefinitely. TUSLA says that any alteration of records would be a significant step and "may render such remaining records wholly incomplete in terms of the context and circumstances [in which it] engaged with the family and others arising from communication received from third parties about the welfare of children."

Analysis
It is clear that the applicant feels very strongly that she did not make the statement she is said to have made to Hospital staff. I would not be justified, however, in directing that an FOI body amend its records on the sole basis of a contrary statement - however strongly held - by the person to whom those records relates.

The Commissioner does not expect medical notes to contain a word for word account of what was said between medical staff and patient. Rather, he considers them to be intended to give an overall summary of the relevant consultation, treatment etc. That said, and although such notes are normally summary in nature, it is reasonable to expect that they would reflect any claim made by a person that they had thoughts of harming others and/or themselves. In this instance, the nursing notes supplied to this Office by the applicant do not appear to refer to such a statement having been made. Nonetheless, the fact that an account of disputed claim or event does not appear in medical notes does not mean that subsequent information recorded in other records about it - including that in the referral from the Emergency Department to TUSLA on the day after the applicant's admission to the Hospital - must be incorrect. Having considered the matter carefully, I am not satisfied that I have sufficient, substantive, evidence that would allow me to conclude that the comments in the records held by TUSLA, including the referral sent to it by the Hospital, are incomplete, incorrect or misleading.

Having considered the submissions made in this case, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the disputed comments are incomplete, incorrect, or misleading. There is therefore no reason for me to consider whether deletion of the relevant comments is appropriate and I find that TUSLA was justified in refusing to grant the applicant's section 9 application.

It is important to note that, 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. TUSLA has confirmed to this Office that the section 9 application and decision letters have been placed on the substantive file held by the Social Work department.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUSLA's refusal to grant the applicant's section 9 application.

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