Whether the amendments made by the Department to an Information Note relating to the election observation roster on foot of an application under section 9 of the FOI Act were sufficient for the purpose of compliance with the requirements of section 9
16 September 2019
Background
The Department maintains a roster of volunteers willing and suitable to partake in overseas election observation missions. Volunteers are nominated as occasions arise to observation missions organised by either the European Union or the OSCE’s (Organisation for Security and Co-operation in Europe) Office for Democratic Institutions and Human Rights (OSCE-ODIHR). The current roster was mustered in January 2019.
In March 2019, the Department prepared an Information Note on the Election Observation Roster for the members of the Joint Committee on Foreign Affairs and Trade and Defence and it subsequently published the Information Note on its website www.irishaid.ie. Among other things, the Information Note included information on the origin and operation of the current and previous rosters, the mustering of the current roster and the related appeals process. The information provided in relation to the previous roster included a paragraph containing details of a High Court judgment involving the applicant who was not selected for placement on that roster.
On 24 April 2019 the applicant submitted an application to the Department under section 9 of the FOI Act for the deletion of the relevant paragraph concerning him on the ground that it was incomplete, false and misleading. In its decision of 22 May 2019 the Department stated that it had decided to amend the relevant paragraph and it provided the applicant with a copy of an amended Information Note which, it stated, would be uploaded to its website in due course.
The applicant sought an internal review of that decision on the same day on the ground that he had sought the deletion of the paragraph and that the amended paragraph was also misleading. On 24 May 2019 the Department emailed the applicant stating that the amended Information Note supplied on 22 May 2019 was not the latest version, and it attached a copy of a revised version of the amended Information Note (the final Information Note). It is this version of the Information Note that is currently available on the Department’s website.
Following further exchanges of correspondence between the parties, the applicant sought a review by this Office of the Department’s decision on 13 June 2019. He stated that he was unhappy with the initial decision and that he had not received an internal review decision.
On 21 June 2019 the Department issued a late internal review decision in which it stated that it was affirming the original decision to amend the relevant paragraph and not to delete it as the applicant had requested. It further stated that the applicant had provided no evidence to support a contention that the final Information Note that was provided to the applicant on 24 May 2019 was incomplete, incorrect or misleading.
I have now concluded my review of the Department’s decision. In carrying out my review, I have had regard to the correspondence between the applicant and Department as described above and to the correspondence between this Office and both the applicant and the Department on the matter.
Scope of the Review
As I have outlined above, the Department agreed to amend the relevant paragraph of the Information Note and provided the applicant with a copy of what it described as the final version of the Note on 24 May 2019.
During the course of the review, Ms Hannon of this Office provided the applicant with a further copy of that final Information Note and informed him that she would have regard to the wording of that Note in the course of the review. The applicant argued that this Office is not entitled to take account of the final Information Note.
As the applicant is aware, a review by the Commissioner under section 22 of the FOI Act is considered to be de novo, which means 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]".
In this case, the Department accepted that a right of amendment of the Information Note existed and the final Information Note contains those amendments. Given the de novo nature of reviews, I am satisfied it is entirely appropriate to consider the final version of the Information Note dated 22 May 2019 that was provided to the applicant on 24 May 2019.
Notwithstanding his arguments that this Office should not have had regard to the final Information Note, the applicant also argued that it remains incomplete or incorrect or misleading and that the relevant paragraph should be deleted in its entirety.
Therefore, this review is concerned solely with whether the Department’s decision to amend the Information Note in the manner in which it did as set out in the final version was sufficient for the purpose of compliance with the requirements of section 9 of the FOI Act.
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.
The relevant paragraph in the final Information Note refers to the fact that an individual (the applicant) was not selected in 2013 selection process for establishing a new election observation roster and that he submitted a series of enquiries regarding the 2013 process and the operation and workings of the roster. It also contains information relating to a High Court ruling on an appeal the applicant made in connection with a decision by the Department to refuse one of his requests for information relating to the 2013 process on the ground that the request was frivolous and vexatious.
In his submission of 12 August 2019, the applicant argued that he had sought the deletion of the entire paragraph from the original Information Note on the basis that deletion was “the clean cut way of dealing with the defamatory statements made”. Instead the Department chose to alter the paragraph, as provided for under section 9(1)(a).
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).
In any event, it seems to me that by altering the paragraph in the manner it did, the Department essentially deleted the two specific statements concerning the applicant with which he took issue in his original application, and inserted alternative text.
On the matter of whether or not the amended paragraph is incomplete, incorrect or misleading, I note that the applicant’s arguments as set out in his submission are based on his views of the wording of the amended Note that issued on 22 May 2019 and not the final Information Note that the Department provided two days later, despite his having been made notified this Office would have regard to the wording of the final Information Note. Nevertheless, as some of his arguments in respect of the amended Note are also of relevance to the final Information Note given the similarities between the two, I will consider them below.
The applicant argued that any person with access to the original Information Note and looking at the revised paragraph would remain in doubt as to whether there was some truth to the statements contained in the original Note. I simply do not accept this to be a valid argument. The fact is that the Department accepted the original paragraph to be incorrect and it agreed to amend the relevant parts of the paragraph.
The applicant also argued that the sentence in the paragraph which states that the High Court awarded costs to the Department is incorrect as costs were awarded to the Minister and the cost order was stayed pending an appeal. While I do not consider the statement to be incorrect, I am satisfied, in any event, that it is not personal information relating to the applicant.
Finally, the applicant argued that the paragraph does not contain sufficient detail which would, in his view, make the paragraph more balanced and complete. However, he has not identified any specific personal information in the paragraph that is incomplete, incorrect or misleading. Having considered the text of the relevant paragraph in the final Information Note, I find no basis for any further amendment of the paragraph under section 9 of the FOI Act. Accordingly, I find that the Department has complied with the requirements of section 9 in this case.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby find that the amendments made by the Department to an Information Note relating to the election observation roster on foot of an application under section 9 of the FOI Act were sufficient for the purpose of compliance with the requirements of section 9.
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