Whether the Defence Forces was justified in refusing to amend information contained in the applicant’s 2017 performance appraisal in the manner sought by the applicant on the basis of section 9 of the FOI Act

17 May 2021

Background

The applicant is a member of the Defence Forces. For the year 2017 he received a negative performance appraisal by a named Comdt. In the performance appraisal the Comdt. stated that the applicant “has put in various reports and letters to and through me” which the Comdt. viewed somewhat negatively. The applicant previously made two FOI requests to the Defence Forces relating to the performance appraisal and requested the “various reports and letters” referenced by the named Comdt. One of those requests was the subject of a review by to this Office, case OIC-96871 refers. In that case, I found that the Defence Forces had taken all reasonable steps to locate the records referenced in the statement and that it was justified in refusing, under section 15(1)(a) of the Act, access to any further records on the ground that they could not be found or do not exist.

On 23 November 2020, the applicant submitted an application under section 9 of the Act for the removal of the specific statement from his 2017 performance appraisal. He also made a request for access to records which does not form part of this review.

On 28 January 2021, the Defence Forces refused to amend the record on the ground that it did not consider the statement to be incorrect, incomplete or misleading.  On 3 February 2021, the applicant sought an internal review of the refusal of his application for amendment. On 4 March 2021, the Defence Forces affirmed its original decision. On 10 March 2021, the applicant sought a review by this Office of the Defence Force’s decision.

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

Scope of the Review

This review is concerned solely with whether the Defence Forces was justified in its decision to refuse the application for amendment of part of the applicant’s 2017 performance appraisal under section 9 of the FOI Act.

Analysis and Findings

Section 9 of the FOI Act provides for a right of amendment of incomplete, incorrect, or misleading personal information in a record held by an FOI body. 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, therefore, 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.

The 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.

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. This Office takes the view, however, that section 9 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 9 is made.

While this Office has not identified an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading", we would expect an applicant to satisfy us 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. However, we 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 to the applicant. The statement at issue contains the Comdt.’s opinion of the applicant’s competence based on various reports and letters submitted by the applicant to and through him. In essence, the applicant’s argument is that the record contains an incorrect account of his performance at work. It appears to be his position that as the named Comdt. cannot locate the supporting documentation referenced as informing the negative appraisal it should be removed. During the course of the review, the applicant was invited to make a submission in support of his argument that the record should be amended. He 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.

In his submissions dated 29 April 2021, the applicant said that the named Commandant was unable to locate evidence to support the statement. He said that he exercised his legal right to submit a complaint and that the comment he wishes to be amended would have had a negative impact on promotion opportunities. The applicant also provided a number of documents which detail the workplace relations issues he has allegedly suffered in the past few years.

Having carefully considered the applicant’s submission and supporting documentation, I find that he has not provided additional information in support of the application for amendment. As 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 records at issue is incomplete, incorrect or misleading. Accordingly, I find that the Defence Forces 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. The Defence Forces confirmed to this Office that the application for amendment of records has been added to the applicant’s personnel file where the performance appraisal is stored.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Defence Force’s decision to refuse the application made under section 9 of the Act for the amendment of the applicant’s 2017 performance appraisal 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