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

12/02/2019

Background

Section 9 of the FOI Act provides a mechanism for the amendment of records held by FOI bodies which contain personal information relating to the applicant. It provides for the amendment of such records where the personal information in the record is incomplete, incorrect or misleading. 
On 23 April 2018, the applicant made a request to the HSE under section 9 of the FOI Act for the amendment of a number of records in a file held by a regional mental health service in his name. In his request, the applicant referred to the accuracy of three records and the file itself. The applicant stated that the records at issue gave the impression that he had been admitted to a mental health facility. The applicant stated that he had never been admitted to the facility or to any other mental health institution and that the records are incomplete, incorrect and misleading. He proposed amendments to the records in the file in the form of statements to be attached for which he provided text.
The HSE issued a decision on 21 May 2018 refusing the applicant's request. The HSE stated that a copy of the applicant's request and other correspondence will be attached to the file. 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. 
Following a request for an internal review, the HSE affirmed its original decision. On 27 September 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 HSE and the applicant, and to correspondence between this Office, the applicant and the HSE. I have also had regard to the content of the records and to the provisions of the FOI Act. 

Preliminary Matters

While I have considered very carefully the submissions provided by the applicant in support of his application, it is clear that the records relating to this review and the information in the submissions are very personal and sensitive. Consequently, while it is necessary to explain the nature of the records, I have not provided specific details in this decision lest identifying information be released. 
The applicant raised an issue of concern about how his request was processed by the HSE. I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. I stress that the findings which follow concern the applicant's rights under the FOI Act and do not extend to other matters concerning the applicant and the HSE.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing the applicant's request to have personal information on records amended, 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.

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, in 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. 

Consideration of the applicant's request

The applicant identified the records at issue as numbers 1, 37 and 38 in his file and says that he wanted those records amended. He also referred to 'The file itself in it's [sic] creation and existence' and said he wanted a "general caveat" ( a statement drafted by the applicant) to be signed and attached to the file. 
The question I must consider in this review is whether the evidence which the applicant has submitted to support his arguments is sufficient to satisfy me that the information in the records the subject of this review are, on balance, incomplete, incorrect or misleading. Among the relevant considerations are the nature of the information, the purpose for which it is held and the context of the records created. 

Record 1 is titled 'Admission sheet' and is on headed paper in the name of a hospital. The record contains a small amount of handwritten information about the applicant and is signed, presumably by a hospital official, but for the most part the admission sheet is not filled in. I note that it is not dated but from information provided by the applicant and confirmed in other records and submissions, record 1 was created in 1988. The Commissioner has found that the right of amendment can apply to a record created prior to the commencement of the Act. Page 2 of the record is a copy of the first page but with the addition of a small amount of personal information of a third party. The applicant said that he wanted the record amended by attaching a statement that he was never admitted to the mental health service facility. 

Records 37 and 38 are handwritten notes of a consultant psychiatrist on hospital headed paper titled 'Clinical Notes' and created on two dates in 1993. The information in the records also contains a small amount of personal information of a third party. The applicant states that the type of discussion he had with the consultant psychiatrist was not one that would give rise to the creation of clinical notes. 

'The file itself ...'
The applicant stated that the file in his name is incomplete, incorrect and misleading. He gave an example of an occasion when a doctor told him that he was aware that the applicant had been admitted to the hospital mental health service facility. The applicant said that he wanted a statement (referred to earlier) to be signed by the HSE and attached to the file.

Submission from the HSE

The HSE said that it refused to amend record 1 by attaching a statement because another record (39) in the applicant's file states that the applicant was not admitted to the mental health service facility and that this is sufficient to satisfy the request as made. 
The HSE said that records 37 and 38 relate to meetings which took place between the applicant and a consultant psychiatrist in another hospital in February 1993. It said that all entries retained on the applicant's file were made on headed paper and that "no significance should be attached to the term "clinical notes"". Its original decision referred to records 27-36 by way of examples of entries by another doctor which were on headed paper. The HSE also quoted the psychiatrist who said that he "attended [sic] to endeavour to make a concise and accurate summary of the issues raised and I am satisfied that I followed this principle in making notes detailed in documents 37 and 38. 25 years on, I can neither add to nor subtract from these notes".
Concerning 'The file itself...', the HSE said that when a member of the public attends a meeting with a clinician, a note of that meeting is taken for future reference. It said that notes etc. are compiled in a file with the name and other details of the person. It said that any alteration of the records may render such remaining records wholly incomplete in terms of context and circumstances of the applicant's interaction with the clinicians involved.
It is useful to bear in mind that it is the information, rather than the record, which must be incomplete, incorrect or misleading before the right of amendment may be exercised There is an element of overlap between the three terms -“ incomplete, incorrect or misleading - in the sense that information which is incomplete or incorrect may be misleading. 

The information in Record 1 is, on the face of it incomplete. For example, there is no date or category of admission; neither is there an entry for 'Diagnosis'. It lacks the details required for the uses to which an admission record might properly be put. Further, I consider that, in the light of evidence accepted by the HSE and, indeed, by the Courts, the applicant was not admitted at all, the admission sheet on his file is misleading. It seems to me that a person looking at the applicant's file could reasonably conclude from the first document (record 1) on that file that he had been admitted as an inpatient to the hospital with perhaps the date of such admission having been inadvertently omitted. While the HSE has explained that the admission form was pre-printed to be completed "as the need arises", the fact remains that some of the applicant's particulars were filled in and he is identified on the admission sheet completed and signed by a hospital employee. Record 39 is a letter written by a psychiatrist in 2009 which states that the applicant was not hospitalised "either voluntarily or involuntarily" at the particular hospital. I agree with the appellant that one cannot presume that a person misled by record 1 will continue to read on as far as record 39 in the same file. Moreover, as record 1 is incomplete, the date or even the year of the incident referred to in record 39 might not be known to an uninformed reader of the file. In other words, the link between record 1 and the much later record 39 is not obvious.

On the basis of the material before me, I am satisfied on the balance of probabilities that the information in record 1 is incomplete and misleading. I consider that this is a case where the addition of a statement correcting the position is an appropriate amendment to the information concerned. The application under section 9 sought such addition. I am satisfied that the information should be amended in accordance with section 9(1)(b) and I find that the amendment should be made by adding to the record the following statement:

"The information in this record is incomplete and misleading. {Applicant's name} was never admitted to {the Hospital}."
As regards records 37 and 38, I am not required to categorically determine what the applicant or a consultant or other medical professional said at any point in a meeting or wrote in a file. This would not be feasible. While the applicant provides explanations as to why he said or did certain things, the fact that the account recorded in the records may not include everything that transpired or reflect the context and background as the applicant wishes, does not of itself render the records incomplete, incorrect or misleading. The fact that the applicant was not a patient being treated by the consultant at the time of the meetings or at any other time is not determinative of the issue either. I accept that it is the practice of the HSE and hospitals generally to create file notes of meetings between health professionals and members of the public on pre-printed forms often with the heading "Clinical Notes" or similar. The content of the records themselves does not, it seems to me, imply that the author was treating the applicant or that he was or had been a patient. In fact, the content of the records reflects the fact that the applicant requested the meetings. Having considered all of the applicant's submissions carefully, I do not consider that I have sufficient evidence to find that, on the balance of probabilities, the information in records 37 and 38 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 find that the HSE was justified in refusing the applicant's request for the amendments sought to records 37 and 38. 
 
As regards the overall file as referred to in the section 9 application, I note that, insofar as parts of the application are effectively being refused, section 9(4)(a)(i) of the Act obliges the HSE where practicable to attach the section 9 application to the record concerned. I consider that it would be practicable ((subject to section 9(4)(b)) for the application which includes statements drafted by the applicant to be attached to the composite record i.e. the file. I consider that the application should be attached to the beginning of the file i.e. beside Record 1. This, coupled with the addition of the statement to record 1 as detailed above, ought to give the necessary context and background to the remaining records. Further, I would remind the HSE of its obligation under section 9(5) to take reasonable steps to notify the making of the amendment to record 1 to any person to whom access to the record under FOI was given as well as to any other FOI body to whom a copy of the record was given. 

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 vary the decision of the HSE. I direct the HSE to attach a statement as detailed above to record 1. In relation to the overall file, I direct that the applicant's application be attached to the beginning of the file, i.e. beside record 1. This in itself is quite significant as it alerts all future users of the file that aspects of its contents are disputed by the applicant. I affirm the HSE's decision in relation to records 37 and 38. 

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