Whether QQI's decision to amend a record containing incomplete, incorrect or misleading personal information relating to the applicant by way of deletion is in compliance with the requirements of section 9 of the FOI Act

27/11/2018

Background

On 28 April 2017 the applicant applied to QQI under section 9 of the FOI Act for the amendment of an email held by it on the ground that the email was incorrect, misleading and incomplete. He alleged that the red text in the body of the email is falsely attributed to him as being the content of an email he sent to a QQI staff member at a particular time and date and he suggested that the amendment "would possibly be best done with an added statement". In its decision of 30 June 2017, QQI did not dispute that the record should be amended. Rather it contended that the record should be deleted "so there is no attribution" to the applicant.

On 4 July 2017, the applicant sought an internal review of QQI's decision on the ground that the appropriate method was the addition of a statement. On 21 July 2017, QQI issued an internal review decision in which it stated that the text of the email would have a note attached to it confirming that it is not attributed to the applicant for as long as QQI retains the record.

On 1 March 2018, the applicant sought a review by this Office of QQI's decision. Following correspondence with this Office, QQI issued a revised internal review decision on 9 April 2018 in light of the fact that the internal review decision of 21 July 2017 had apparently been made by the same staff member who issued the original decision and not by a staff member of higher rank as required by the FOI Act.

The revised internal review decision varied the original decision and stated an added statement would recorded against the red text of the email. On 21 May 2018, the applicant informed this Office that he was not satisfied with the statement suggested. During the course of the review, QQI informed this Office that having reconsidered the matter, it now proposes to delete the record in question on the ground that it serves no ongoing business purpose for QQI.

On 19 October 2018, Ms Hannon of this Office wrote to the applicant wherein she notified him of QQI's proposal and informed him of her view that the method of amendment now proposed was appropriate. She invited him to make submissions on the matter. He did so by letter of 5 November 2018. Having regard to that submission, I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to correspondence between the applicant and QQI as described above and to the correspondence between this Office and both the applicant and QQI on the matter. I have also had regard to the contents of the record at issue and related emails.

Scope of the Review

As I have indicated above, QQI did not dispute that the record at issue should be amended. Rather, the main point of contention is the manner of amendment proposed. The applicant has raised concerns about the shifting positions of QQI on this point. Nevertheless, the fact remains that during the course of the review, QQI reconsidered its position on the matter and decided that the most appropriate course of action would be to delete the record. 

A review by the Commissioner under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner [2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) stated as follows: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]"

The current position is that QQI proposes to delete the record at issue. As I have stated above, the applicant was given an opportunity to make a submission on the proposed deletion of the record and he did so. Given the de novo nature of reviews, I am satisfied it is appropriate to consider QQI's revised position on the method of amendment of the record. Accordingly, this review is solely concerned with whether QQI's decision to delete the record at issue is in compliance with the requirements of section 9 of the FOI Act.

Preliminary Matter

During the course of the review, the applicant has expressed various concerns about the fairness of the review process. While I do not propose to engage with those arguments in this decision, I can confirm that I have considered the applicant's arguments and do not accept them. I am satisfied that the applicant was given a reasonable opportunity to comment on all material issues arising and that he has, indeed, done so.

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.

It is not in dispute that the information at issue is personal information relating to the applicant and that it should be amended. The QQI has decided to grant the application for amendment by deleting the record. It is noteworthy that while an application under section 9 must specify the amendment required (subsection (2)(a) refers), it is a matter for the public body, where it decides to grant the application, to notify the applicant of the manner of such grant (subsection (3) refers). As I have outlined above, the question before me is whether the QQI's decision to delete the record is in compliance with the requirements of section 9 of the FOI Act. 

The record at issue is this case was previously released to the applicant in connection with a separate FOI request and review by this Office. Taken in isolation, it looks to be an email that contains red text in the body of the email with a salutation at the top (addressed to a QQI staff member) and the applicant's name on the bottom in black text. As such, it could, on its face, be interpreted as an email that was issued by the applicant. However, when considered in the context of the email string in which it is included, and having regard to the particular contents of the red text, it is apparent that this is not the case. 

The record has its background in the following exchanges. The applicant sent an email to a named QQI staff member, Mr A, on 17 June 2016. Mr A forwarded a copy of that email to his colleague, Ms B, on 23 June 2016, presumably so that she could prepare a draft response for him to issue. Later that day Ms B replied to Mr A, stating "See email in red below". Attached to her email was the record at issue. The "email in red below" comprised red text that was contained in, and in place of, the body of the original email sent by the applicant on 17 June 2016. Subsequently, on 30 June 2016, Mr A issued his response to the applicant's email of 17 June 2016. The text of that email response was a verbatim copy of the red text draft contained in Ms B's reply to Mr A. 

QQI's position is that the record at issue serves no ongoing business purpose for QQI, hence its decision to delete the record. The applicant has made detailed submissions as to why he considers that the record should not be deleted. While I do not propose to address every point made by the applicant in his submissions, I can confirm that I have had regard to his submissions in their entirety for the purposes of this decision.

I must say at this stage that the manner in which the applicant has engaged with this Office to date caused me to consider whether to discontinue the review under section 22(9)(a)(i) on the ground that the application for review is frivolous or vexatious. On this point, it is noteworthy that the Courts have accepted that a person's motivation is, indeed, relevant, when considering whether a request or application for review is frivolous or vexatious.

It seems to me that the applicant has taken quite an adversarial approach in his engagements with QQI and in his engagements with this Office during this and a number of related reviews, all of which relate to his pursuit of a long running grievance with QQI. He has made extensive detailed submissions wherein he has taken an almost forensic approach to the interpretation and meaning of certain correspondence and sought to challenge such correspondence as lacking in the level of detail that he believes it ought to contain to answer any questions he may have based on possible interpretations of such correspondence. His submissions also lead me to question if his motivation for seeking the amendment of the record at issue is something other than simply seeking to ensure that personal information relating to him is not incomplete, incorrect or misleading. Rather, he appears to be more concerned with the potential future uses he can make of the record in pursuit of his grievance. For example, he argued that if the record was to be deleted, it would impact on his ability to pursue further avenues such as making a data protection request relating to the red text or seeking a judicial review of QQI's engagements with him. 

Having considered the matter, however, I have decided, on balance, that the most appropriate course of action to take is to complete the review by issuing a binding decision on the substantive issue of the manner of amendment of the record at issue in an effort to bring the matter to a close. In her email of 19 October 2018, Ms Hannon of this Office informed the applicant of her view that the record at issue has no evidentiary value in terms of the performance by QQI of its functions. The applicant took particular issue with that view and suggested that this Office has no role in determining what, if any, evidentiary value it might have. It is worth noting that Ms Hannon formed her view in light of her understanding of the nature of the record at issue as described above and in light of QQI's position that the record serves no ongoing business purpose for it. 

On the question of whether or not the record serves an ongoing business purpose, the applicant argued, among other things, that the record was not an isolated random record but rather was part of a large chronological sequence of emails, processes, and QQI activities. In essence, he argued that the record has an ongoing business purpose as it is relevant to other reviews currently before this Office involving the applicant and QQI and that the record has evidentiary value in terms of how QQI dealt with him. It seems to me that much of the applicant's argument is based on his assertion that someone in QQI deleted his email content and attributed the red text to him. As I have outlined above, it is apparent that this is not the case when one considers the record in the context of the email string in which it is included, and the actual contents of the record. 

Nevertheless, on the matter of the record having evidentiary value in terms of how QQI have dealt with the applicant, it seems to me that it serves to show the detail of the draft response prepared for Mr A and that Mr A's eventual response was a verbatim copy of the draft response. As such, I accept that is has some evidentiary value and while I draw no conclusions as to the importance or otherwise of that evidentiary value, it seems to me that, of itself, it is sufficient to suggest that deletion is not the most appropriate form of amendment in this case. 

As the applicant has indicated, this Office has previously commented that the deletion of a record is not something to be undertaken lightly. In case 98158 (Mrs ABZ and the Office of the Revenue Commissioners), the then Commissioner stated as follows:

"Without wishing to lay down an inflexible rule on this point, it seems to me that deletion of incorrect information from a record is only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect."

The applicant's argument is that the record at issue purports to be an email authored by him. As I have indicated above, I accept that it could be interpreted as such, notwithstanding the fact that the contents of the record do not readily support that interpretation. As such, I accept that the record is, at a minimum, misleading and, as outlined above, that the record has some evidentiary value as outlined. I also accept QQI's contention that the record serves no ongoing business purpose. However, it seems to me that if a record held by QQI serves no ongoing business purpose, it will generally fall to be deleted when all other similar records fall due for deletion in accordance with an agreed records management policy or practice and not in response to a request for amendment under section 9.

As such, I have concluded that, on balance, deletion of the record is not an appropriate form of amendment in this case. Rather, it seems to me that the incomplete, incorrect or misleading personal information in the record relating to the applicant can readily be amended by the addition of am appropriate statement. Prior to QQI's decision to delete the record, it had attached to it the following statement:

"In accordance with [the applicant's] wishes, the following text (referred to by [the applicant] as the "Red Text") for as long as it exists and howsoever it is retained will no longer be attributed to [the applicant]."

It seems to me that this statement does not adequately specify the respects in which personal information relating to the applicant is incomplete, incorrect or misleading. It seems to me that an adequate statement should explain that the record is not an email that was authored by the applicant and that the red text in the record was prepared as a draft response to the applicant's email of 17 June 2016 and forwarded to the recipient of that email for consideration in the format shown.

In conclusion, therefore, I find that QQI was not justified in deciding to amend the record at issue by way of deletion and instead I direct it to add a statement to the record as outlined. I would also like to draw QQI's attention to section 9(5) of the FOI Act which requires FOI bodies to take all reasonable steps to give notice of the making of amendments to a record under section 9 to any person to whom access to the record was granted under the the FOI Act, and any other FOI body to whom a copy of the record was given, during the period of one year ending on the date on which the amendment was effected.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of QQI to amend the record at issue by way of deletion. Instead, I direct QQI to add the following statement to the record:

"This record is not an email that was authored by the applicant. The red text was prepared as a draft response to the applicant's email of 17 June 2016 and forwarded to the recipient of that email for consideration in this format".

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