Whether the Department's decision to amend a record containing incomplete, incorrect or misleading personal information relating to the applicant by way of the addition of a statement is in compliance with the requirements of section 9 of the FOI Act
4 April 2022
Background
For farmers to receive a payment under the Single Payment Scheme, beneficiaries must comply with a variety of regulations on the environment, public health, animal health, plant health, animal welfare and land maintenance. This system is known as Cross Compliance. In essence, Cross Compliance aims at ensuring the safe production of food, the welfare of animals, the sustainable use of land, the maintenance of natural resources and limiting climate change.
The request that is the subject of the review in this case concerns a Cross Compliance inspection carried out by the Department on the applicant's sheep farm in December 2019. The Cross Compliance Report (the CCR) generated in the course of this inspection stated that the reason for inspection was -5% ovine penalties-. On 23 September 2021, the applicant sought the amendment of the reason for inspection recorded on the CCR. He said he had successfully appealed a decision to impose the 5% penalty in connection with an incident in 2018 and that the penalty had been removed in November 2019, before the December 2019 inspection was carried out. He requested that the reason for inspection on the CCR be corrected immediately to indicate that the reason for inspection in December 2019 was not due to 5% ovine penalties.
Initially the Department said that the applicant's request was not a valid FOI request and that it could not process it. In response, the applicant drew its attention to section 9 of the FOI Act which provides for the amendment of records relating to personal information. On 20 October 2021, the Department issued its decision in which it refused the application for amendment on the ground that the inspection selection procedure was carried out at a national level in the first half of 2019 and that the reason the applicant was selected for inspection was the non-compliance on file from the 2018 inspection. It said that the events from the original inspection selection, review and appeal are documented in the Department's records and that the records are not incomplete, incorrect or misleading. It said that it would place a copy of this decision letter on both the 2018 inspection file and the 2019 inspection file.
On 21 October 2021, the applicant sought an internal review of that decision. He argued that the Department should have a mechanism in place to update records to reflect decisions of the Agriculture Appeals Office and that inaccurate information should not appear on records concerning him or his farm due to the failure of the Department to have such a mechanism in place. He said that he had been told that the information contained in the CCR was correct when the report was created. He disputed this, stating that the CCR had been created on 17 December 2019 while the decision of the Agriculture Appeals Office had been communicated to the Department on 31 October 2019. He said that allowing the Department to -ignore- Appeals Office decisions was creating a scenario whereby the Department could carry out unjustified inspections on farms even if farmers had won their appeals. The Department affirmed its decision on 8 November 2021. It said that the removal of the penalty did not alter the initial reason for inspection selection as the selection was made prior to the appeal decision. On 15 December 2021, the applicant sought a review by this Office of the Department's decision.
In the course of the review, the Investigating Officer wrote to the Department and informed it of her view that the case had been made that the information at issue was misleading and asked whether the Department was willing to consider the addition of a statement to the CCR to the effect that that while the decision to inspect was based on a penalty that had been imposed, the penalty was subsequently successfully appealed. The Department stated that having considered the matter further it was willing to add a note to the CCR, stating that the 5% ovine penalty was overturned on appeal. It said that it would then upload this amended CCR to the applicant's 2019 electronic file. This proposal was put to the applicant by the Investigating Officer on 24 March 2022. In response, the applicant stated that the addition of a note or statement to the record was not acceptable to him.
In the circumstances, I have decided to conclude this review by way of a formal, binding 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 Department as outlined above, and to submissions made by the applicant and the Department to this Office. I have also examined the records at issue.
Scope of Review
As I have outlined above, the Department reconsidered its position in the course of the review and has now accepted that the record at issue should be amended. However, the remaining point of contention between the parties is the manner of amendment proposed.
It is important to note that a review by the Commissioner under section 22 of the FOI Act is deemed -de novo- in that it is based on the circumstances and the law as they apply on the date of the decision. This approach has been endorsed by the Courts. As such, I consider it appropriate to have regard to the Department's revised position on the application for amendment. Accordingly, this review is now concerned solely with whether the Department's decision to amend the record at issue by the addition of a statement is in compliance with the requirements of section 9 of the FOI Act.
Preliminary Matters
In his submissions to this Office, the applicant raised a concern that the Department did not appear to have a system in place to reconcile outcomes from the Agriculture Appeals Office with the Department's decisions to inspect farms. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
The applicant also submitted that the Department did not have an understanding of their obligations under the FOI Act, having initially refused to process his request until he pointed to section 9 of the Act. The applicant's concerns on this point are entirely justified in my view. It is entirely unacceptable that the Department did not appear to be aware of the right of requesters to apply for the amendment of incomplete, incorrect, or misleading personal information contained in records held by public bodies, notwithstanding the fact that it has been subject to the Act since 1998. I expect the Department to examine its procedures for processing all future requests to ensure that they are properly processed in accordance with the provisions of the 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 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.
It is not in dispute that the records at issue contain personal information relating to the applicant. Nor is it in dispute that the penalty imposed following a 2018 inspection by the Department was appealed successfully by the applicant prior to the 2019 inspection taking place. Page 7 of the CCR states that the Appeals Office allowed the appeal on 31 October 2019 and that the penalty had been removed. However, the first page of the CCR simply states that the reason for inspection is 5% ovine penalties.
In its submissions, the Department said that the selection procedure for inspections in 2019 was completed in the first half of that year. It said that this selection was carried out at a national level and in line with the relevant EU regulation (Commission Implementing Regulation 809/2014) which requires that selection for inspection is based on risk and random selections. It said that previous non-compliance is one of the reasons for selection under -risk' and that the non-compliance on file from the 2018 inspection of the applicant's farm was the reason that he was selected for inspection. While it acknowledged that the penalty was removed further to the decision of the Agriculture Appeals Office and prior to the inspection happening, it said that this did not alter the original reason for selection for inspection. The Department noted that Article 34(6) of the above Regulation places a legal obligation on it to keep a record of the reason for selection for inspection and to make this available to the inspector. It states:
6. The competent authority shall keep records of the reasons for the selection of each beneficiary for an on-the-spot check. The inspector carrying out the on-the-spot check shall be informed accordingly prior to the commencement of the on-the-spot check.
Nevertheless, as I have outlined above, during the review, the Investigating Officer informed the Department of her view that a case had been made that the information at issue was misleading and proposed the addition of a statement to the CCR to the effect that that while the decision to inspect was based on a penalty that had been imposed, the penalty was subsequently successfully appealed. In response, the Department said that while the information on the 2019 CCR was correct at time of inspection selection, and while the full file has the most up-to-date information including the copy of the Decision of the Agriculture Appeals Office, it was willing to add a note to the 2019 CCR which was used at inspection stating that the 5% ovine penalty was overturned on Appeal and to upload the amended CCR to the applicant's 2019 electronic file.
In response to this proposal, the applicant stated that this was not acceptable to him. He said that he wished the statement 5% ovine penalties to be deleted or removed from page 1 of the CCR, in accordance with section 9(1)(a) of the FOI Act.
This Office takes the view that directing the amendment of, or deletion of, information from 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. In determining the matter, consideration should also be given to possible future use of the record and to the effect of the form of amendment on the future usefulness of the record. Determining the appropriate form of amendment of a record is not always clear cut and requires careful consideration of the facts and circumstances of the case.
Having carefully considered the submissions and supporting documentation, as well as the additional correspondence with the parties, it seems to me that while on the date of inspection in 2019, the penalty imposed following the 2018 inspection had already been overturned, this does not change the fact that the reason that the applicant's farm had been selected for inspection in the first half of 2019 was because of that penalty. I note that the EU Regulation requires that the selection of the sample of farms to be inspected is based on a risk analysis and in this context the Department selects a certain percentage randomly with the remainder selected using appropriate risk criteria which it reviews annually. Having previously had a penalty imposed is one example of the risk criteria used by the Department. I note also that the Department is legally required to keep a record of the reason that a farm is selected for inspection.
It seems to me that the amendment of the record at issue in this case by way of the addition of the statement agreed is the most appropriate method of amendment in this case. By adding the agreed statement to the record instead of deleting the relevant information, the record continues to properly reflect that the reason for selection for inspection was the penalty, while clarifying that the penalty was subsequently overturned on appeal. While the applicant may be unhappy that the inspection went ahead in circumstances where the penalty had been overturned beforehand, this is not an issue for examination by this Office, nor does it alter the fact that the reason for inspection was properly recorded at the time of selection.
In the circumstances, I find that by deciding to amend the record by way of adding a statement to the first page of the CCR, 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 affirm the Department's decision to grant the application for amendment of the Cross Compliance Report by the addition of a statement to the first page to the effect that while the decision to inspect the applicant's farm was based on a penalty that had been imposed, the penalty was subsequently successfully appealed
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
