Whether the Council was justified in refusing to amend, under section 9 of the FOI Act, certain information in records of two telephone call between the applicant and a Council staff member on 09/09/2014 and 10/09/2014 regarding his housing situation
OIC-110234-Z8Z5Q4
Background
It appears that the applicant in this case was taken off the Council’s housing list in 2014. In 2020, he sought access to all files concerning his housing application. The Council subsequently released records to the applicant. On 30 January 2021, he submitted an application to the Council under section 9 of the FOI Act, which is concerned with the amendment of incomplete, incorrect, or misleading personal information held by public bodies. He provided the Council with a copy of a letter dated 9 December 2020, comprising the request for internal review he had submitted in respect of his previous request for records. While the letter details the applicant’s concerns about the appropriateness of the actions of the staff member he dealt with and contains a number of questions the applicant wishes to be addressed, it also indicates that he disagrees with the accuracy of the description of the telephone calls.
On 12 April 2021, the Council issued a decision wherein it refused to amend the records at issue. The applicant sought an internal review of the Council’s decision, following which the Council affirmed its original 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 Council as set out above and to the correspondence between this Office and both the applicant and the Council on the matter. I have also had regard to the contents of the record at issue.
Scope of the Review
This review is concerned solely with the question of whether the Council was justified in refusing to amend, in the manner outlined by the applicant in his letter dated 9 December 2020, two records comprising notes of telephone calls with the applicant relating to his housing situation. The applicant should note that this Office has no role in examining the administrative actions of the Council in relation to its dealings with him.
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.
During the course of the review, the applicant was invited to make a submission in support of his argument that the records 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 submission to this Office, the applicant asked several questions which in essence challenge the accuracy of the records. He took issue with the way the Council discussed his housing with him as well as asking other questions, such as why was the notes were kept for over six years. However, he did not provide any evidence to support his argument that the information was incorrect or misleading and warranted amendment under section 9 of the Act.
The Council outlined in its submissions that there was no telephone recording of the conversations. It said there was no evidence or independent witness to determine whether the applicant’s recollection of the call or the staff members’ reports of the calls is correct. It noted that a period of seven years had passed. It said considering this and because the applicant provided no supporting evidence it refused to amend the record.
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 Council was justified in refusing to amend the records 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 Council confirmed to this Office that the application for amendment of records has been added to the disputed records.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse the application made under section 9 of the Act for the amendment of records of two telephone conversations between the applicant and Council staff members on 9 September 2014 and 10 September 2014 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