Whether the Hospital was justified in its decision to refuse the applicant's request, under section 9 of the FOI Act, to amend certain personal information in records

03/10/2018

Background

In 2013 the applicant made a complaint to the Hospital following the death of her husband who passed away in early 2012. In considering the complaint, the Hospital issued a letter in March 2014 on behalf of a Multi-Disciplinary Team (MDT). In that letter, entitled 'MDT response', the Hospital responded to what it regarded as the main issues of the applicant's complaint. 
On 27 November 2017, the applicant made a request to the Hospital under section 9 of the FOI Act for the amendment of a number of comments contained in the MDT response. In her request, the applicant highlighted 13 points relating to the response and referred to the accuracy of records concerning the response of the Hospital to the complaint. 
The Hospital issued a decision on 19 December 2017 and refused the applicant's request concerning all 13 points. In its decision the Hospital identified the MDT response as records 20-26 in Part 'B' of its decision schedule. The Hospital stated that a copy of the applicant's request will be attached to the records to which she referred in her request. In cases such as this, where a section 9 application is refused, section 9(4)(a)(i) 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. 
On 16 January 2018, the applicant applied for an internal review of the Hospital's decision. In its internal review decision, the Hospital amended one point and affirmed its original decision as it applied to the remaining 12 points. On 20 June 2018, this Office received an application for review from the applicant.
I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submissions of the Hospital and the applicant, and to correspondence between this Office, the applicant and the Hospital. I have also had regard to the content of the records and to the provisions of the FOI Act. 

Preliminary matters

Before explaining my analysis and findings on this review, I would like to offer my condolences to the applicant on the death of her husband who passed away in early 2012. I understand that the subject matter of the applicant's complaint to the Hospital relates to her late husband. However, while I have considered very carefully the submission provided by the applicant in support of her application, it is clear that the records relating to this review and the submissions are very personal and sensitive. As such, I have decided not to provide specific details of the content of the records or the submissions made in this decision lest identifying information be released.
For the sake of clarity, I note that in her request and submission the applicant refers to a meeting held in November 2011. While she seeks to have records amended in relation to this meeting, the applicant also refers to specific wording contained in the MDT response.

Scope of Review

This review is concerned solely with whether the Hospital was justified in refusing the applicant's request to have personal information on records amended or deleted, on the basis that it is incomplete, incorrect, or misleading, under section 9 of the FOI Act. 

Analysis and Findings

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.
Section 9(6) - deceased person
Section 9(6) provides that the Minister for Finance may provide by regulations for the making of an application for amendment of personal information in a case where the individual to whom the information relates is deceased.  The relevant regulations are the Freedom of Information Act 2014 (Section 9(6)) Regulations 2017 (S.I. 53 of 2017) (-�the 2017 Regulations-�).

The Regulations provide that, subject to the other provisions of the FOI Act, an application under section 9 may be made by "the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request".
The amendments sought relate to the personal information of the deceased as well as to the applicant herself. The Hospital confirmed that its records list the applicant as the deceased's "next of kin". However, factors such as the confidentiality of the deceased's personal information, whether the deceased would have consented to the amendment of the records when living and any other relevant circumstances, have to be considered in deciding whether the public interest, including the public interest in the confidentiality of personal information, would be better served by granting the application. I note that the FOI Act recognises a very strong public interest in protecting privacy rights. However, given my findings below, I did not consider it necessary to go on to apply the Regulations here.

The 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 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 Commissioner accepts that the right of amendment of personal information includes the right of amendment of opinions that are incorrect, incomplete, or misleading.  However, he takes the view that he would not be justified in directing that an FOI body amend its records to substitute a different opinion 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. While the Commissioner has not presented an exhaustive list of the circumstances in which an opinion might be found to be incomplete, incorrect or misleading, he would, however, 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. 

Directing the amendment of information, as required in this case, from the records of an FOI body, is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of an FOI body is not something to be decided upon lightly. The Commissioner takes the view that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts, or with the way the contents of a record explain subsequent actions and decisions of public bodies. 

Submission from the Hospital

The Hospital said that the applicant wrote to it in February 2013 and said she was unhappy with a meeting which was held in November 2011 to discuss matters concerning her husband. The Senior Social Worker sought a multi-disciplinary team (MDT) meeting to review the applicant's complaint. The MDT consisted of the Director of Nursing, a Ward Manager, a Senior Occupational Therapist and two Healthcare professionals. The MDT issued its response to the applicant on 10 March 2014. The Hospital also said that in October 2014 following an investigation, a Review Officer of the HSE Advocacy Unit "found the Hospital had made every effort to accommodate the applicant and recommended that the complaint be closed". The Hospital said that the applicant's objections to Medical Social Work notes and the MDT response to her complaint have been filed with the relevant records as per section 9 of the FOI Act. The Hospital said it would like to acknowledge the applicant's feelings at the passing of her late husband and that it would like to reiterate its apology of 31 August 2017.

Consideration of the applicant's request

The applicant acknowledges the care afforded to her late husband by Hospital staff. However, it is clear she disagrees with certain views and opinions of the Hospital. It is also clear that certain records of personal matters relating to her and her late husband are very sensitive. 
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 in the records the subject of this review are, on balance, incomplete, incorrect or misleading.
I accept that the applicant has provided information to the Hospital and to this Office explain her view of certain events but I do not consider that sufficient evidence to find that on the balance of probabilities, the information in the records is 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 persons forming the opinion to the extent that it should be amended. I note that in the case of one point of the application, the Hospital considered that evidence supplied by the applicant's solicitor in relation to a property atter was sufficient to allow it to amend the record at internal review stage. I do not consider that I have sufficient evidence to direct what would amount to the substitution of a different opinion, in relation to the remaining points, for that of the authors of the Multi-Disciplinary Team (MDT) response. 

At point 6 of her request, the applicant is seeking the addition of certain information to a record on the ground that it was not given at the time of a meeting. Section 9 does not provides for such amendments. 
The applicant states that she wishes to have certain information amended in the records of her late husband.  My review does not require me to categorically determine what either the applicant or other medical professional recorded as a result of a consultation or meeting. The mere statement by the applicant as to a contrary version of events, is of itself an insufficient basis for concluding that the information should be amended under Section 9 of the Act. It seems to me that it would not be appropriate to accept one party's version of events over the other's, unless there is compelling evidence which requires me to do so. I note however, that in relation to comments made at a family meeting held on 2 November 2011, the Hospital confirmed that it would include a note in the deceased's social work record confirming comments made by the applicant at that meeting. 
The right of amendment is confined to the amendment of incomplete, incorrect or misleading personal information contained in the record. I am unable to conclude that the information requires amendment in this case. Accordingly, having considered the submissions of both parties and the statutory provisions, I find that the Hospital was justified in refusing the applicant's request for the specific amendments sought.
It is very important to note that where an applicant fails to provide sufficient evidence to enable me to conclude that the information in a record is incomplete, incorrect or misleading, the record remains undisturbed but this does carry any judgment on the part of this Office that the record is in fact complete, correct and not misleading.

Decision

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