Whether the Department was justified in refusing to amend, under section 9 of the FOI Act, certain information contained in records identified by the applicant in relation to forestry licence applications

8 February 2023

Background

This review has its background in dealings the applicant had with the Department-�s Forestry Division. The records at issue are two letters issued by the Forestry Department, and dated 13 January 2021 and 29 March 2021 respectively, to the Office of the Ombudsman, in connection with complaints the applicant had made to the latter office regarding the manner in which the Department had handled applications he had made for forestry licences

On 22 February 2022, the applicant wrote to the Department to make an application under section 9 of the FOI Act, outlining his view that the records contained personal information in relation to him that was incomplete, incorrect or misleading. The applicant set out the basis for this view in his request.

As the Department did not issue a decision on the applicant-�s request within the statutory timeframe, it was deemed to have refused the request. On 16 April 2022, the applicant sought an internal review of the Department-�s deemed refusal of his request. Although the Department issued an internal review decision on 17 May 2022, again this was outside the statutory timeline and as such it had been deemed to have refused the applicant-�s request for internal review. On 12 May 2022 (in other words, before the Department issued its internal review decision) the applicant applied to this Office for a review of the Department-�s deemed refusal of his application.

I have now completed my review in this case. In conducting the review, I have had regard to the correspondence between the applicant and the Department as set out above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue.
For the purposes of this review, I will refer to the letter of 13 January 2021 as record 1, and to the letter of 29 March 2021 as record 2.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse to the applicant-�s request for amendment of the relevant records under section 9 of the FOI Act.

Preliminary Matters

As outlined above, the Department missed the statutory deadlines for responding to both the applicant-�s initial FOI request and his request for an internal review. I wish to take this opportunity to remind the Department of its obligations under the FOI Act to respond to requests within the timelines set out in the legislation.

In addition, before I deal with the substantive issues arising, I should explain for the benefit of the applicant 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.

Analysis & 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.

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 this Office 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, an applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

It is not the role of this Office to investigate complaints about the manner in which records such as professional reports were created, or to consult with relevant experts in order to make findings on applications for the amendment of such records. The role of this Office does not extend to examining the professional judgment of a body or its staff in the creation of records. Neither is it our role to conduct a comprehensive enquiry as to the accuracy or completeness of records. Rather, regard must be had to the evidence actually provided by the applicant, as well as to any rebutting evidence put forward by the FOI body, in order to make a decision on that basis.

Where a record contains personal information which is incomplete, incorrect or misleading there are three methods for effecting the amendment provided for by section 9:

(i) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,

(ii) 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

(III) by deleting the information from it.

It should be noted that, in his initial request to the Department, the applicant sought the amendment of the information in the records that he considered to be inaccurate, incorrect or misleading. However, in his subsequent submissions to this Office, he specifically sought the deletion of this information.

Directing the amendment of information in the records of an FOI body, as sought by the applicant in his initial request, 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. This Office takes the view that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts, or with the way the contents of a record explain subsequent actions and decisions of public bodies.

The deletion of information from a record on foot of an application under section 9, as sought by the applicant in his submissions to this Office, 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 his initial request, the applicant set out 14 pieces of information in record 1 that he considered to be inaccurate, incorrect or misleading for the purposes of section 9 of the FOI Act, and a further three pieces of such information in record 2. In respect of record 1, I have summarised the 14 pieces of information that the applicant has identified as inaccurate, incorrect or misleading as follows:

(a) The applicant argued that the statement in record 1 that -�Most of the issues around this case relate to the projected operational costs related to the application-� was untrue. Rather, he argued that the main issue was the Forestry Service-�s failure to progress his application in a timely fashion, and that the issue of costs was not raised until he had made a number of complaints

(b) The applicant argued that the statement in record 1 that -�-�in most cases Registered Foresters and Inspectors will use their professional knowledge and experience to define and evaluate projected costs-� was misleading, as it implied that he was unprofessional or inexperienced and had not defined the costs properly. The applicant argued that the projected costs submitted with this application were similar to costs accepted by the Forestry Service on a number of other projects

(c) The applicant argued that the statement in record 1 that -�From the outset of this case the Department felt that the areas for treatment for scarification and other silvicultural operations were not clearly defined on the ground and reflected in application maps and documents-� was untrue. He argued that the first mention of any queries about scarification or other operations was some 13 months after he had submitted his application submission.

(d) The applicant argued that the statement in record 1 that -�-�the projected costs were not sufficiently transparent-� was untrue, for the reasons outlined at point (b) above

(e) The applicant argued that the statement in record 1 that -�The Department has made repeated efforts to resolve this-� was untrue, and that it was he who had made repeated efforts to progress the application

(f) The applicant argued that the statement in record 1 that -�-�but the application and the projected actions therein remained  insufficiently well-defined to resolve the situation and to explain the costs set out-� was misleading and sought to shift the blame for the application-�s lack of progress onto him

(g) The applicant argued that the statement in record 1 that -�A Further Information Request was issued and was not resolved-� was untrue. He stated that he received the relevant Further Information Request (FIR) from the Forestry Service on 5 August 2020 and replied on the same day in respect of the matter. He also stated that he had sent two emails on the matter in July 2020 that were ignored

(h) The applicant argued that the statement in record 1 that -�-�and this resulted in additional queries-�and again these were not satisfactorily addressed-� was untrue and sought to shift the blame for the application-�s lack of progress onto him

(i) The applicant argued that the statement in record 1 that -�The issue of the exact treated area for the various operation remains. There is insufficient clarity regarding the area to be treated for each operation and the areas assigned to each operation may be greater than needs to be in some cases-� was untrue and irrelevant to his complaint

(j) The applicant argued that the entire paragraph in record 1 under the heading -�TFL00459420-� was misleading. He stated that his complaint to the Ombudsman had been about the requirement to provide information that was unnecessary for a felling licence application, and that the Forestry Service failed to address that issue in their communication to the Ombudsman under this heading. The applicant stated that, in so doing, the Forestry Service implied that his complaint was frivolous

(k) The applicant argued that the statement in record 1 that -�A Natura Impact Statement (NIS) letter issued to the applicant in June 2019. A NIS was supplied in March 2020 and submitted to the Department's Ecology Unit-� was false. He argued that he had discussed the NIS with a Forestry Service Inspector and sent an NIS on 11 July 2019, which the Forestry Service claimed to have lost. He also stated that he had sent several follow up emails asking if any further information was required

(l) The applicant argued that the statement in record 1 that certain information had -�not been provided to date-� was false. He stated that he received an FIR on 9 November 2020, and responded on 16 November 2020. The applicant stated that he believed that the request for information at issue had been issued by the Forestry Service to deflect from his complaint

(m) The applicant argued that the entire section of record 1 under the heading -�CN81642-� was misleading and implied that he had failed to carry out certain required work. In fact, according to the applicant, the required work was completed prior to a site inspection, and that the Forestry Service inspector had raised no issues during the inspection. The applicant argued that this section of record 1 ignored the fact that frost is commonly accepted as a -�force majeure-� in EU Law, a point that he had made clear. He also stated that this section of the letter also ignored the fact that Forestry service did not always require shaping to be done at all

(n) The applicant argued that the statement in record 1 that -�The Department strenuously refutes that these correspondences were ignored-� was untrue and misleading. He stated that the record mentioned four emails, but that he had complained about 16 emails, which were only a sample of the relevant emails. The applicant argued that the Forestry Service routinely ignored his emails, refusing to answer basic but important questions in relation to his applications.

In respect of record 2, I have summarised the 14 pieces of information that the applicant has identified as inaccurate, incorrect or misleading as follows:

(o) The applicant argued that the statement in record 2 that he -�did not provide the information sought-� in connection with a forestry licence application was false, and that he had provided the information six days after receiving the request for same

(p) The applicant argued that the statement in record 2 that -�As further information was not supplied as outlined in my previous response-� was misleading and sought to shift blame for the lack of progress on a forestry licence application from the Department to him

(q) The applicant argued that the statement in record 2 that -�Consequently, the 2nd grant has not been paid-� was misleading on the basis that the non-payment of the grant in question was not consequent on the factors stated by the Department, but on failures on the Department-�s part.

I find as follows in relation to the above arguments of the applicant. Firstly, I wish to note that, at various points in the applicant-�s request, he has made various claims about the Department-�s motives and behaviour, for example that it was attempting to deflect from his complaint, or shift blame on to him for delays in forestry licence applications being processed, or that it had implied that a complaint he made to the Ombudsman was frivolous. I consider that all such claims are the applicant-�s opinion of the motives and behaviour of the Department, are unevidenced and do not fall to be considered for amendment under section 9 of the FOI Act.
Secondly, in order for the right of amendment to arise under section 9, the material complained of must be personal information relating to the applicant within the meaning of the FOI Act. Personal information is defined in section 2 of the FOI Act as follows:

-�personal information-� means information about an identifiable individual that, either-�

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

(b) is held by an FOI body on the understanding that it would be treated by that body as confidential-�

In addition, the definition of personal information contains a list of fourteen specific types of information including, at point (iii) information relating to the employment or employment history of the individual, and at point (xiv) the views or opinions of another person about the individual.

Furthermore, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions

aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.

Having reviewed the arguments made by the applicant, I am not convinced that the information in the record that he has sought to have amended under section 9 is personal information relating to him within the meaning of the FOI Act. This seems clear-cut in relation to several of items of information in the record that the applicant specifies. In particular, I consider that the information in record 1 singled out by the applicant at points (a) to (f), (i), (j), (m) and (n), as well as the information in point (q) of record 2, relates to the Department-�s view on issues arising with certain forestry licence applications. This, in my opinion, is information relating to procedural matters. It is clear that the applicant disagrees strongly with the statements made by the Department in relation to these matters. However, none of the information is personal information relating to the applicant and accordingly does not engage section 9 of the FOI Act. I would add that, even if I were to accept that the above information was personal information relating to the applicant, in my view in the majority of the above points the applicant seeks to replace one opinion (that of the Department) in relation to the supposed issues with the applications with another (his own). As outlined above, the view of this Office is 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. Furthermore, it also seems to me that, in respect of the points above, the applicant seeks to address what he perceives as a number of failings in how the Department has progressed his applications. As set out above under the heading -�Preliminary Points-� 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.

An argument may be made that certain other information in record 1 complained of by the applicant is his personal information. In particular, noting that the applicant is identified in the records, it might be argued that information that relates to the alleged manner in which the applicant responded to requests for information, in his professional capacity as a forester, relates to his employment, in satisfaction of point (iii) of the definition of personal information in section 2 of the FOI Act. It might also be argued that such statements regarding the alleged manner in which the applicant responded to requests for information constitute the expression of an opinion about him, in satisfaction of point (xiv) of the definition in section 2. I consider that the relevant points of the applicant-�s request in respect of which such arguments might be made are points (g), (h), (k) and (l) in record 1, as well as the material at points (o) and (p) of record 2. For example, at point (g), the applicant stated that the Department-�s statement that an FIR was -�not resolved-� was untrue, and provided information to the effect that he had replied by email the same day and sent various follow-up emails. Similarly, at point (h), the applicant argued that the statement that the alleged lack of resolution of the issues raised in the FIR resulted in -�additional queries-� that were -�not satisfactorily addressed-� was also false. In the same vein, the applicant described as false the statements flagged at points (k) and (l) (respectively, that he had provided the Department with an NIS in March 2020, when in fact according to the applicant he had provided the NIS in July 2019, and that certain information had -�not been provided to date-� by him).

I have carefully considered the question of whether the above material in the records constitute personal information relating to the applicant for the purposes of section 2 of the FOI Act, such as to engage section 9. On balance, I find that it does not. In respect of points (g), (h), (k) and (l) in record 1, I do not consider that this information relates to the applicant-�s employment for the purposes of point (iii) of section 2 of the FOI Act, notwithstanding the fact that he would have been submitting the applications in the course of carrying out his work. The information relates to forestry applications on behalf of a third party and has nothing to do with his employment as such.

Regarding points (o) and (p) of record 2, while I accept that others may form opinions concerning the applicant-�s competence as a result of his failure to submit documentation in time or at all (if that was, indeed, the case), the information complained of must comprise an opinion about the individual to qualify as personal information for the purposes of point (xiv) of section 2 of the FOI Act. It seems to me that a statement to the effect that an individual did not submit documentation, or that they submitted it on a particular date, is not an opinion about that individual.

In relation to all of the above elements of the applicant-�s request, I find that no right to the amendment of information arises under section 9 of the FOI Act. I make this finding on the basis that, in the first instance, the material complained of is not personal information relating to the applicant for the purposes of section 2 of the FOI Act, and therefore section 9 is not engaged.

In conclusion, it is clear from the applicant-�s FOI request and his submissions to this Office that he feels he was treated unfairly and inequitably in his dealings with the Department. While I have every sympathy for his position, I find that he has not shown that the information at issue is, on the balance of probabilities, incomplete, incorrect, or misleading.

Decision

Having carried out a review under section 22 of the FOI Act, I hereby affirm the Department-�s decision to refuse to amend certain information in the records, on the ground that he has not shown, on the balance of probabilities, that the information in question is 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.

Neill Dougan
Investigator