Whether the Hospital was justified in refusing an application made under section 9 of the Act for the amendment of a record of an alleged incident involving the applicant on the ground that the applicant has not shown that the information that is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

19 May 2020

Background

On 12 July 2019, the applicant in this case submitted a request to the Hospital for a copy of an incident report that was created following an alleged incident involving her in a unit of the Hospital on a date in March 2017. It appears the unit manager banned her from visiting the unit following the alleged incident. In response, the Hospital provided the applicant with a copy of the report sought, which contained a hand-written account of the alleged incident.

On 29 October 2019, the applicant submitted an application for the amendment of the record on the ground that the account given was untrue and did not accurately represent what happened. She said the Unit manager had subsequently given her a different account of the alleged incident that was also untrue.

On 14 November 2019, the Hospital refused the application for amendment. The applicant sought an internal review of that decision on 2 December 2019. Among other things, she argued that the description of the alleged incident in the record did not correspond with the unit manager’s description of the matter during their subsequent meeting. She indicated that she was seeking the real reason for the decision to ban her from visiting the unit.

On 20 January 2020, the applicant sought a review by this Office of the Hospital’s deemed refusal of her application for internal review. The Hospital issued a late internal review decision on 24 January 2020, wherein it affirmed the refusal of the application for amendment of the record on the ground that the applicant provided no information to suggest that amendment was warranted. The applicant subsequently informed this Office that she wished the review to proceed.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the communications between the parties, as above, and those between this Office and the parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Hospital was justified in refusing the application made under section 9 of the Act for the amendment of a record of an alleged incident involving the applicant.

Analysis and Findings

Section 9 of the FOI Act provides for the amendment of incomplete, incorrect or misleading personal information in records held by an FOI body. An applicant seeking amendment of records should show, first, that that the information concerned constitutes personal information and, second, that the information is incomplete, incorrect or misleading. Section 9(2)(b) requires that an application for amendment "shall, in so far as is practicable ... include appropriate information in support of the application."

The Act is silent on the question of where the onus of proof lies in section 9 cases. This Office considers that in the absence of any express statement in the Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading. The Act is also silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required in such cases 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.

This Office does not see its role arising from section 9 as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, we 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.

In requiring an 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.

Furthermore, 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.

It is not in dispute that the record at issue contains personal information relating the applicant. In essence, the applicant’s argument is that the record contains an incorrect account of an incident that allegedly occurred in the particular unit of the Hospital concerning her behaviour.

During the course of the review, the applicant was invited to make a submission in support of her argument that the record should be amended. She was also provided with an explanation of the role of this Office and its approach in relation to applications made under section 9 of the Act. No such submission has been received to date.

As things stand, while the applicant has provided her own account of the incident, she has provided no additional information to support that account. As I have indicated above, an applicant’s assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

In the circumstances, I find that the applicant has not shown, on the balance of probabilities, that the information contained in the record at issue is incomplete, incorrect or misleading. Accordingly, I find that the Hospital was justified in refusing to amend the record in question.

For the benefit of the applicant, I would add that where an application for amendment of a record is refused, the public body must attach to the record concerned the application for amendment or a copy of it or, if that is not practicable, a notation indicating that the application has been made (unless the body considers that the contents of the application are defamatory, or the alterations or additions to the record concerned to which the application relates would be unnecessarily voluminous).

This requirement is, in itself, quite significant as it alerts all future readers of the record that aspects of its contents are disputed by the applicant. I note that in its internal review decision, the Hospital stated that a copy of the applicant's letter of 29 October 2019 had been attached to the record in accordance with the provisions of section 9(4)(a)(i) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital’s decision to refuse the application made under section 9 of the Act for the amendment of a record of an alleged incident involving the applicant on the ground that the applicant has not shown that the information that is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

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