Whether the NCSE was justified in refusing the applicant's request to amend records on the basis that the information contained in them is incomplete, incorrect or misleading within the meaning of section 9 of the FOI Act

5 March 2019

Background

On 14 June 2017 the applicant submitted an application to the NCSE under section 9 of the FOI Act for the amendment of certain records it holds relating to him in connection with the provision of special educational needs services. He argued that the authorisations issued for special education provision issued by the Special Educational Needs Organiser (SENO) were incorrect and he sought their retraction and replacement with corrective authorisations. As part of the same correspondence the applicant also submitted a request for access to records and a request for a statement of reasons under section 10 of the FOI Act, both of which were the subject of separate reviews by this Office.

The applicant, who is now an adult, indicated that his mother was acting on his behalf. The applicant's mother represented the applicant in all subsequent correspondence in relation to the request. At an early stage in this review, she provided this Office with a letter from the applicant authorising her to act on his behalf. Accordingly all references to correspondence with the applicant should be taken to include correspondence with his mother on the basis that she was corresponding on his behalf.

On 21 November 2017 the NCSE refused to amend any records. It stated that the amendments sought relate to a disagreement over professional opinions and how they were interpreted by officials of the NCSE. It stated that the applications for support were received from the applicant's school with parental consent and enclosing professional reports and that decisions were made to allocate additional resources. It stated that the records on file reflect the opinions of those involved at the time and support the decision making process.

The applicant sought an internal review of that decision, following which the NCSE affirmed its original decision to refuse to amend the records at issue. On 30 April 2018, the applicant sought a review by this Office of the decision of the NCSE. 

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 the NCSE's correspondence with the applicant as outlined above and to communications between this Office and both the NCSE and the applicant on the matter.

Scope of the Review

This review has its background in a long running dispute between the applicant's mother and the NCSE concerning a diagnosis made in relation to her son in 2008 which has formed the basis for a number of applications for resource teaching hours and special needs assistance in the intervening years. She is clearly deeply opposed to that diagnosis and it is clear from the substantial correspondence submitted that there is a considerable divergence of opinion between the applicant's mother and others in relation to her son's diagnosis.

It is important to note at the outset that an application under section 9 for the amendment of records must, in so far as practicable, specify the record concerned and the amendment required. In his application to the NCSE the applicant identified the authorisation issued by the SENO for special education needs teaching as requiring retraction and replacement with corrective authorisations. Accordingly, the scope of this review is concerned solely with whether the NCSE was justified in refusing to amend the authorisations in question.

During the course of the review, the applicant's mother identified a large list of records to which she required amendments. The question of whether any other records require amendment does not form any part of this review, although it is noteworthy that this Office considers that it is a matter for the FOI body to carry through the effects of the amendment of records to any subsequent rights or liabilities.

Preliminary Matter

During the course of the review the applicant raised many issues that are not capable of consideration by this Office. As the applicant has already been informed, this Office has no remit to examine, or investigate complaints about, the administrative actions of the NCSE or to act as an alternative dispute resolution mechanism. The remit of this Office is confined to establishing whether decisions taken by FOI bodies on requests or applications made under the FOI Act were in accordance with the provisions of the Act.

Analysis and Findings

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.

Before I address the specific issues arising in this case, it is important to note that this Office has previously set out its approach to, and interpretation of, section 9 and has established a number of principles, including the following;

• In the absence of any express statement in the FOI Act, this Office considers that the onus of proof in section 9 cases lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading and that the standard of proof required is that of "the balance of probabilities" .
• It is not the role of this Office to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, it has regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body, and makes a decision on that basis. 
• In requiring the applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, this Office 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. 
• This Office would not be justified in directing an FOI body to 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 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. However, section 9 does not permit this Office to substitute a different opinion for the one in respect of which the application under section 9 is made. 
• This Office has not presented an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading". However, an applicant would be expected to satisfactorily show 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.

I should state at this stage that the applicant's mother took issue some of those principles during the review. For example, she argued that the onus should be on the NCSE to rebut the arguments she made in relation to the inaccuracy of the relevant records. I am satisfied that the approach taken by this Office to date in relation to the onus of proof and the other principles outlined above is appropriate and I see no reason to change that approach in this case.

In his section 9 application to the NCSE, the applicant argued that the SENO authorisations issued for special education needs training were incorrect, unhelpful, misleading and harmful. He aksed for the authorisations to be retracted and replaced with corrective authorisations. During the course of the review, the applicant's mother identified a number of SENO authorisations as requiring amendment. She identified authorisations that issued in 2008, 2010, and 2014 in response to applications submitted by the applicant's school, with the consent of the applicant's mother, for special education needs teaching support.

The first of the applications that was submitted to the NCSE in 2008 was accompanied by a report of a psychological assessment of the applicant that was carried out in 2008 with the consent of the applicant's mother (the 2008 Report), due to concerns in relation to his behaviour in school. It is important to note, as accepted by all parties, that two versions of the 2008 report exist.  One version of the report indicated that the applicant met certain specified criteria for "a diagnosis of severe Oppositional Defiant Disorder", which is described as a childhood behavioural disorder characterised by uncooperative, defiant, annoying behaviours towards parents, peers, teachers, and other authority figures. The report indicated that the applicant was, at the time, "a child presenting with complex learning, behavioural, and emotional needs" who required "a high level of support in school". There is also a version of the 2008 report which stated that the applicant had met the criteria for 'a diagnosis of Oppositional Defiant Disorder'. In the course of her submissions to this Office the applicant's mother indicated that at the time of the assessment she was only aware of the version of the report referring to a diagnosis of oppositional defiant disorder and she has indicated that she was at that point unaware of the version of the report referring to a diagnosis of severe oppositional defiant disorder.

In the course of the review by this Office Ms Connery of this Office queried the fact that two versions of the 2008 report appear to be in existence, that referring to "severe Oppositional Defiant Disorder" and the other referring to a diagnosis of "Oppositional Defiant Disorder".  In response the NCSE indicated that when the first application was made to the NCSE in June 2008, the application for resource teaching hours and special needs assistant support was made on the basis of category 4 (emotional behavioural disturbance (EBD)). This application was signed by the Deputy Principal of the applicant's primary school and the applicant's mother. The NCSE have indicated that it would appear that both reports; that referring to "severe Oppositional Defiant Disorder" and the other referring to a diagnosis of "Oppositional Defiant Disorder" were supplied at the time of this application. The SENO, having considered the application and the 2008 Report, issued an authorisation for the provision of support services in which the category of assessed disability (category 5) was described as "Severe Emotional Disturbance and/or Behavioural Problems" and allocated five hours of resource teaching to the school for the applicant. The NCSE indicated to this Office that in order to grant the maximum number of resource hours (5 hours) the accompanying professional report must state that the disorder is 'severe'.

The 2010 application described the category as "Emotional Severe EBD" and the corresponding authorisation described it as "Severe Emotional/Behavioural Disturbance". The 2014 application, however, contained the following text in the category field - "Exceptional Intelligence, Exceptional Academic Ability (Please see Parent)", apparently at the request of the applicant's mother. The resulting SENO authorisation (or Decision Statement) described the category as "Severe Emotional/Behavioural Disturbance".

During the course of the review, Ms Connery afforded the applicant's mother several opportunities to provide relevant evidence in support of the applicant's section 9 application. In response, she stated that she disagreed with the validity of the two versions of the 2008 Report, and the NCSE's acceptance, interpretation and reliance upon those reports. The applicant's mother has submitted lengthy and detailed submissions, including a 63 page submission dated 26 June 2018, the vast majority of which was in support of her argument that the categorisation of the applicant as described in the SENO authorisations is incorrect and misleading. While I do not propose to repeat the full details of those arguments her, I can confirm that I have had regard to all of the arguments she raised in her submissions for the purpose of making my decision.

The fundamental argument presented by the applicant's mother in support of the request for amendment of the SENO authorisations is that the diagnosis of severe oppositional defiant disorder as set out in the 2008 Report on which the authorisations were based is incorrect. Instead, she believes that the correct diagnosis should have been one of exceptional ability. Among other things, the applicant's mother argued that she was not aware of the contents of the 2008 Report when she gave consent for the assessment to be undertaken. She referred to matters such as extracts from the 2008 Report relating to her son's academic ability, and extracts from results of ratings recorded in respect of the applicant in 2002 and 2004 on a commonly used scale aimed at measuring child behaviour problems.

In addition the applicant's mother made reference to two 2011 reports in relation to her son which, in her view, call into question the findings of the 2008 report(s). At the request of this Office the applicant's mother supplied these two reports - carried out by the National Educational Psychological Service (NEPS) and the Child and Adolescent Mental Health Services (CAMHS). In a submission accompanying the two reports the applicant's mother made clear that she is not in agreement with all aspects of the CAMHS report and highlighted a significant number of what are, in her view, discrepancies in the report. That said she drew attention to the fact that the 2011 CAMHS report states that her son 'is not presenting with significant evidence of a mental health problem'.  Likewise the applicant, in her submission to this Office, has taken issue with a number of findings in the 2011 NEPS report. The conclusion of this report is that the applicant's  'overall cognitive functioning is in the Average range'.

As part of her submissions to this Office the applicant's mother has also supplied the outcome of a review which was undertaken by a consultant psychiatrist at the request of the HSE in 2013. It would appear that this review took place following the mother's dissatisfaction in relation to a diagnosis of Oppositional Defiant Disorder made in relation to the applicant's son in January 2008 by another doctor (Dr. X) separate to the psychological report supplied to the NCSE.  The conclusion of this review is that 'it was reasonable for [Dr. X] and the team to consider a diagnosis of Oppositional Defiant Disorder in [the applicant's] case'.

In its submission to this Office the NCSE outlined the processes in place in relation to applications for resource teaching hours and special needs assistance. Individual schools make applications to the local SENO, who examines such applications and any supporting professional reports before making a decision to allocate resource hours based on the information contained in the application and corresponding professional reports in line with the applicable Department of Education & Skills criteria. The application is recorded on the NCSE's administrative system and the relevant school is notified of the outcome.

The NCSE has indicated that the amendments sought by the applicant's mother stem from a disagreement over professional opinions and in particular the fact that she is unhappy that the applications for resource teaching hours for her son contained a number of references to 'severe emotional and behavioural disturbance', 'emotional and behavioural disturbance' and 'severe ODD [Oppositional Defiant Disorder]' and were submitted with the support of a psychological report making references to these diagnoses. The NCSE have indicated that the applicant's mother's preferred diagnosis, that of  'exceptional ability', is not a category of disability under the relevant Department of Education & Skills circular (Circular 02/05 - Special Education Support Service). In addition the NCSE has indicated that 'it is not responsible for the assessment, compilation or content of the professional reports' submitted by a school seeking additional resources for a student.

If the NCSE is arguing that it cannot amend professional reports as it is not responsible for their assessment, compilation or content, I disagree. Section 9 applies to records held by an FOI body, regardless of who was responsible for their creation. If an applicant can show, on the balance of probabilities, that the personal information in a record held by the body is incomplete, incorrect or misleading, then the body must amend the record if requested to do so.

Bearing in mind the principles outlined above, the question I must answer is whether the applicant has shown, on the balance of probabilities, that the disputed information in the relevant records is incomplete, incorrect, 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.

The applicant's mother has presented considerable information to this Office as to why she believes the diagnosis(es) contained in the 2008 report is/are incorrect. She has made a number of references to other reports or assessments, including the two 2011 reports which were supplied to this Office. She has argued that these call into question or negate the findings of the 2008 Psychological Assessment, and by association the NCSE authorisations for resource teaching hours which were allocated on the basis of this report.

I accept that the applicant has provided background and contextual information to explain her view that the diagnosis(es) in the 2008 report(s) is/are incorrect. In essence, she disagrees with the diagnosis set out in the reports on which the SENO authorisations are based and she believes that she has presented information which supports her preferred diagnosis. Having carefully considered the matter, I am satisfied that the applicant has not satisfactorily shown that on the balance of probabilities, the diagnosis 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 person forming the opinion to the extent that it should be amended in the manner sought by the applicant. In particular I have no reason to find that a qualified psychologist must be presumed to be other than competent to form an opinion as to a diagnosis and/or prognosis of a person in his or her care at a particular point in time. The fact that the applicant and his mother are not in agreement with this assessment is an insufficient basis, in and of itself, for concluding that the information should be amended under section 9 of the Act. Likewise I consider that the fact that another clinician may reach a different conclusion at a different point in time is also not sufficient to demonstrate that the information contained in the relevant records is incomplete, incorrect or misleading.

In addition, regard has to be had to the purpose for which the information is held. The relevant records demonstrate that a number of applications were made for resource teaching hours and special needs assistance to assist the applicant and following consideration of these applications by the NCSE a certain numbers of hours were allocated. As set out in Department of Education & Skills Circular 02/05, resource teaching hours can only be allocated in a number of specified categories, one of which relates to severe EBD (category 5) under which the applications relating to the applicant were granted.  As set out above any amendment to records under section 9 should, as far as possible, not interfere with the way the contents of records explains subsequent decisions of public bodies. If the applicant's request to amend these records to reflect 'exceptional ability' was granted then a scenario would arise whereby it would appear as if the NCSE had allocated resource hours for a category not set out in the relevant circular. I cannot accept that such an outcome is what was intended by section 9.

Finally, with regard to the fact that two versions of the 2008 report appear to be held by the NCSE, one referring to "severe Oppositional Defiant Disorder" and the other referring to a diagnosis of "Oppositional Defiant Disorder", I must admit that I consider it to be a somewhat unusual scenario which appears to have arisen. However, having carefully considered the matter, I am satisfied that in the context of a section 9 application, the FOI Act does not require me to prefer one version over the other as the authoritative text. It is evident from the relevant records in this case that it is clearly documented that two versions of the 2008 report exist and therefore I do not accept that it can be seen to be 'misleading' for any subsequent reader of these records.  Bearing in mind the established principles set out above, in circumstances where I have found that the applicant has not discharged the requisite burden of proof with regard to one or other or both reports, I am satisfied that nothing in section 9 requires me to suggest an amendment or alteration which would prioritise one version of the 2008 report over the other, nor has the applicant requested this.

Accordingly I find that the NCSE 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 significant as it alerts all future users of that file that aspects of its contents are in dispute and future users will have access to the views of the applicant and his mother. This requirement under the FOI Act ensures that any future reader of the file will be in a position to read the records of the NCSE, along with the applicant's own comments as to the accuracy of these records, and in this way come to a reasonable conclusion using his or her own judgement on the matter. In this regard the NCSE have confirmed to this Office that a copy of the applicant's section 9 application and correspondence in relation to the matter is contained on the applicant's file.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the NCSE 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.

Stephen Rafferty
Senior Investigator