Whether the Defence Forces was justified in refusing an application under section 9 of the Act for the amendment of certain information in the applicant’s performance appraisal form

4 February 2022

 

Background

The applicant is a member of the Defence Forces. On 18 December 2020, he submitted an application to the Defence Forces for the amendment of his AF 667 (a performance appraisal form) for 2016. Part four of the AF 667 contains details of the assessment made by the applicant’s superior (a named Comdt.) of the applicant’s performance for the year and was signed and dated 31 January 2018. Part five of the AF 667 allows the staff member to comment upon the assessment made. Part five of the AF 667 in question contains a written comment by the Comdt. that the applicant declined to sign the document when paraded. It also contains the applicant’s subsequent comments and signature dated 8 February 2019.

While his correspondence with the Defence Forces is quite confusing, the applicant essentially sought the following amendments to the AF 667:

(a) The date 31 January 2018 in Part four be amended to match the date in Part five (8 February 2019), and
(b) The statement at Part five which states that “[the applicant] declined to sign the document when paraded” be removed.

The applicant said he was on a training course on the date the Comdt. signed the AF 667 and that this could be verified. He said he did not refuse to sign the AF 667. He argued that that Part five contains false information and that he would have included a comment to reflect this had he received his AF 667. He asked that the statement be removed. 

The Defence Forces failed to issue a decision on the application for amendment and the applicant sought an internal review of the deemed refusal of his application on 2 February 2021. On 29 August 2021, the Defence Forces issued a decision wherein it refused to amend the date in Part four of the performance appraisal. It agreed to amend the statement in Part five but not remove it. The Comdt. suggested the statement reflect as follows “[the applicant] declining to sign the AF 667 at Part 5, this was to allow [the applicant] time to furnish additional information to attach to the AF 667, which I was happy to accede to. Note however, that my assessment was complete and thus signed and dated appropriately.”

On 6 October 2021 the applicant sought a review by this Office of the Defence Forces 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 Defence Forces and the applicant as outlined above and to the correspondence between this Office and both the Defence Forces and the applicant on the matter. I have also examined the record at issue. 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 Defence Forces was justified in its decision to refuse the application for amendments sought by the applicant as described above.

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.

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.

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.
 

Part 4 - amendment of date

In submissions to this Office the Defence Forces explained that an internal guidance document (Admin Instr. 1/96 Chapter 13 Annex ‘A’ d) gives guidance for the completion of part four of AF 667s. The Defence Forces outlined that it makes no direction on when the reporting officer should date the assessment and narrative. Therefore, it believes that the named Comdt. was correct to sign and date the report once he considered his assessment complete. The Defence Forces stated that the date would be either the date the reporting officer completes part four or the date he reads it to the subject. It further explained that the AF 667 is an administrative process which takes some time to complete and as such the documents contains different dates as each post holder completes their respective part. 

In correspondence with the Defence Forces and this Office, the applicant said he was on a training course on 31 January 2018 and is adamant he did not receive the AF 667 on that date. On the other hand, the Comdt. said the date in question is the date he completed and signed his assessment. It is questionable as to whether the date itself can reasonably be regarded as personal information relating to the applicant. In any event, having regard to the Defence Forces’ description of the AF 667 completion process, I am not in a position to find that the date 31 January 2018 is, on the balance of probabilities, incomplete, incorrect, or misleading. I find that the Defence Forces was justified in refusing to amend the date.

 

Part 5- deletion of statement

 

The deletion of information from a record, on foot of an application under section 9 is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. This Office considers that deletion of incorrect information from a record is generally only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect.

In submissions to this Office the applicant said that he did not refuse to sign his AF 667 and that this is a false statement. He explained that in a Redress of Wrongs ruling it was found that he had suffered a wrong regarding the manner  in which he received his AF 667 2015/2016 (mainly that it was not completed on time). The applicant argued that this affected his ability to enrol in a named training course which, in turn, affected his promotion opportunities. He also provided this Office with a copies of the Redress of Wrong Rulings. 

The Defence Forces explained the process of completing an AF 667. The relevant Admin Instructions outline that the Reporting Officer shall allow the staff member to read Parts one to four. The staff member, having discussed the report with the Reporting Officer, can make any comments he so desires on the Report prior to signing at Part five. From this, I understand that the applicant should have signed the form on the date of parading. It is his position that he was not paraded and therefore did not sign the document. He re-iterated that the Redress of Wrong ruling found that a wrong was committed in the completion of his AF 667 2016. 

The Defence Forces said the Comdt. recalls that he agreed to give the applicant further time, so that he could furnish additional information to attach to the AF 667. Based on this, the Comdt. made note of this on the AF 667 with the statement “The subject [applicant’s name] declined to sign the document when paraded”. As outlined above, the Defence Forces suggested amending this statement to reflect that the applicant was given additional time to provide further information to attach to the AF 667 however the applicant indicated that this statement is also incorrect. 

Having carefully considered the applicant’s submission and supporting documentation, I find that he has not provided relevant information to support his assertion that the statement in question is incomplete, incorrect or misleading. As I have indicated above, an applicant’s assertions alone will not form sufficient evidence to warrant deletion, in the absence of supporting evidence. In the circumstances, I find that the applicant has not shown, on the balance of probabilities, that the statement in question is incomplete, incorrect or misleading. Accordingly, I find that the Defence Forces was justified in refusing to delete the statement at Part 5 of the AF 667 2016.

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 decision of the Defence Forces to refuse the application for amendment of the applicant’s appraisal form for 2016.

 

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