Whether the Department was justified in refusing to amend, under section 9 of the FOI Act, certain information contained in a report commissioned by the Department in relation to a forestry licence application 

8 February 2023

Background

This review has its background in dealings the applicant had with the Department-�s Forestry Division. The record at issue is a specified Ecology report dated 20 August 2021 (the report) containing recommendations in connection with an application made by the applicant for a forestry licence.

On 24 February 2022, the applicant wrote to the Department to make an application under section 9 of the FOI Act, outlining his view that the record 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.

On 14 April 2022, the Department issued its decision on the request, wherein it indicated that it considered that the information complained of was correct and that it therefore refused to make the amendments sought by the applicant. On 16 April 2022, the applicant sought an internal review of that decision. Although the Department issued an internal review decision on 16 May 2022, 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 record at issue.

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 record under section 9 of the FOI Act.

Preliminary Matters

As outlined above, the Department missed the statutory deadline for responding to the applicant-�s request for an internal review. In addition, although the Department issued its decision on the applicant-�s initial FOI request before he sought an internal review, this was also outside the statutory timeline within which it should have issued. 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, while he sought the amendment of the record in his initial request to the Department, in his submissions to this Office the applicant specifically set out his wish for statements to be added to the record clarifying the information that he considered to be inaccurate, incorrect or misleading.  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.

In his initial request, the applicant set out a number of grounds upon which he considered a right of amendment arose under section 9 of the FOI Act, and which I examine below. Furthermore, in submissions to this Office the applicant set out 13 statements that he stated he wished to have added to the record for the purposes of clarification. In order to establish that the applicant has a right to have such amendments made, this Office must first examine whether the alleged inaccuracies in the record fall within the scope of section 9.

The applicant-�s FOI request made two broad points with a number of sub-arguments under each of the two headings.  Under the heading -�1. The Entire document is very misleading-�, the applicant made arguments that I summarise as follows:

(a) The applicant argued that the report contained an implication, to which he objected, that he (a professional forester with over 20 years-� experience), and another individual on whose behalf he was acting in the application for a forestry licence, had made fraudulent or incompetent claims regarding -�fencing, planting, management, etc-�

(b) The applicant argued that it was unclear who actually wrote the report, or when it was written

(c) The applicant stated that the named author of the report was not a qualified forester and lacked qualification, experience, or authority in assessing silvicultural operations

(d) The applicant stated that the report referenced the named author-�s consultation with a district inspector who had knowledge of the relevant site. The applicant objected to this statement on the basis that the named district inspector had not been on the site for several years and had no detailed knowledge of the site or of damage caused by deer to the site

(e) The applicant stated that there were obviously very high levels of deer damage on site (this was in the context of the report rejecting the applicant-�s proposal to erect deer fencing on the site)

(f) The applicant took issue with the statement in the report that planting was not required, in circumstances where the report also stated that trees had been affected by die-back

(g) The applicant set out his expertise and experience in managing native woodlands and erecting deer fencing, as well as his extensive knowledge of the relevant site, and took issue with what he described as the dismissal in the report of his professional opinion.

Under the heading -�2. Personal information in the record is incomplete, incorrect, or misleading-�, the applicant made arguments that I summarise as follows:

(a) The applicant argued that the statement in the report that a Further Information Request (FIR) was sent to him on 17 May 2021 was false. He stated that an FIR was issued on 19 May 2021 on foot of an email enquiry he made as to the progress of the forestry licence application

(b) The applicant argued that a reference in the report by the named author that the applicant had urged her to visit the site was false and misleading

(c) The applicant argued that the statement in the report that no response to the FIR had been received from the applicant was false and damaging to him

(d) The applicant described as false and misleading the statement in the report that there was ongoing natural regeneration of alder trees at the site. He argued that this contradicted his professional opinion and was damaging to him

(e) The applicant described as false and misleading the statement in the report that the named author had consulted with the district inspector who had knowledge of the site.

I find as follows in relation to the above arguments of the applicant. The first point to be made is that, in order for the right of amendment to arise under section 9 of the FOI Act, 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 be 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. For example, at point 1(b), he argues that it is not clear who wrote the report or when it was written. This is clearly not personal information about the applicant.  I make a similar finding in respect of point 1(c), which disputes the professional qualifications of the named author of the report; point 1(d), which disputes the district inspector-�s familiarity with the site; point 1(e), which relates to deer damage on the site;  point 1(f), which relates to the question of whether planting was required; point 2(d), which questions the correctness of the report-�s claims about alder regeneration at the site; and point 2(e), which disputes that the named author of the report had consulted with a district inspector who had knowledge of the site. Clearly, none of this information is personal information relating to the applicant. Accordingly, a right to have such information amended under section 9 of the FOI Act does not arise.

An argument may be made that certain other information complained of by the applicant is his personal information. For example, at point 1(a) the applicant contended that the entire report called into question, by implication, his professional bona fides and competence. In the same vein, at point 1(g) of the applicant-�s argument, he stated that the report constituted the dismissal of his professional opinion.  If one was to accept this proposition, one might also accept that the impugned information falls within paragraph (xiv) of section 2 of the FOI Act, as it relates to the applicant-�s employment.

Likewise, at point 2(a) of his request, the applicant argued that the statement in the report that a Further Information Request (FIR) was sent to him on 17 May 2021 was false. He stated that an FIR was issued on 19 May 2021 on foot of an email enquiry he made as to the progress of the forestry licence application. Moreover, at point 2(c) the applicant argued that the statement in the report that no response to the FIR had been received from him was false. It might be argued that this information is personal to the applicant, on the basis that he is identified in the report and the material relates to the alleged manner in which he responded to requests from the named author of the report for additional information.

Furthermore, at point 2(b) the applicant argued that a reference in the report by the named author that the applicant had urged her to visit the site was false and misleading. In his submissions, the applicant stated that he had requested that the named author of the report visit the site with him so he could explain what he was trying to achieve. The applicant here appears to be taking issue with the characterisation of this request as his having -�urged-� the named author of the report to visit the site. It might be argued in respect of this point that the use of the word -�urged-� by the named author of the report constitutes an expression of opinion about the applicant, and specifically the named author-�s opinion of the nature and tone of the applicant-�s communication (as outlined above, the definition of "personal information" includes "the views or opinions of another person about the individual").

I have considered whether the above material identified at points 1(a), 1(g), 2(a), 2(b) and 2(c) of the applicant-�s request might constitute personal information relating to the applicant, such as to potentially engage section 9 of the FOI Act. On balance, I find that it does not. It seems to me that the applicant is essentially attempting to use section 9 to challenge aspects of the relevant forestry applications with which he disagrees. I do not consider that this information relates to his 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. Furthermore, in respect of points 1(a) and (g), I should note that, in any case, even if I were to accept that the information complained of was his personal information, it seems to me that his complaints at these points of his request (respectively, that the report called into question his professional bona fides and competence, and that it constituted the dismissal of his professional opinion) are essentially his opinion of what, he believes, is implied in the report. I do not accept that the report makes such implications and, even if I did, as outlined above it is not open to this Office to direct 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.

Moreover, with regard to points 2(a) and (c), 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.

Similarly, in respect of point 2(b) of the applicant-�s request, I do not accept that the characterisation of his correspondence with the named author of the report as his -�urging-� her to visit the relevant site is an expression of an opinion about the applicant as an individual. Even if I was to accept this proposition, it seems to me that, in arguing that he did not urge but -�requested-� the named author of the report to make such a site visit, the applicant is seeking to replace the report-�s characterisation of the nature of the correspondence with his own opinion of that communication. 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.

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 report of 20 August 2021, on the ground that the applicant 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