Whether the CSSO was justified in refusing to grant an application made under section 9 of the FOI Act to amend a record concerning the applicant's suitability for promotion

2 February 2024

Background

In a request dated 27 July 2023, the applicant sought, under section 9 of the FOI Act, the amendment of comments expressed in a memo (the Record) dated 11 December 1995 sent by the then Chief State Solicitor to the Attorney General about the applicant's suitability for promotion at the time. The applicant said that he did not agree with the opinion of the former Chief State Solicitor and that he believes the assessment is wrong. The applicant provided a copy of a reference dated June 1992 from the Head of the High Court Civil Litigation Section as evidence of what best describes the type of person he was and sought to have the Record changed to accurately reflect the kind of worker he was as expressed in this reference.   

In a decision dated 22 August 2023, the CSSO refused the applicant's request. It said that the record in question relates to promotions within the CSSO where the Chief State Solicitor provides his opinion about the suitability of the candidates. On 6 September 2023, the applicant requested an internal review of the CSSO's original decision. In a decision dated 18 September 2023 the CSSO upheld its original decision. The CSSO found that the reference provided by the applicant and his recollection of conversations he had with the Chief State Solicitor are not sufficient to demonstrate on the balance of probabilities that the former Chief State Solicitor's written opinion should be amended. The CSSO informed the applicant that his FOI request will be added to the Record, together with the fact that he disputes the accuracy of the Record. On 5 October 2023, the applicant applied to this Office for a review of the CSSO's 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 outlined above and to the submissions made by both parties. I have also had regard to the contents of 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 CSSO was justified in its decision to refuse to amend the comments expressed in the Record in regard to the applicant's work performance and suitability for promotion.

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.

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 record 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.

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.

The record at issue is an extract from a memo dated 11 December 1995 written by the then Chief State Solicitor providing his comments and recommendation in relation to the applicant who was being considered for promotion at the time. The applicant contends this assessment of him is incorrect and that the description of him is untrue and does not describe who he was or is. The applicant said that other people were promoted ahead of him and that he had met the former Chief State Solicitor at least twice, where he was told there would be other promotions coming up and that he would be next in line. The applicant provided a copy of a subsequent record dated May 1996 wherein the Chief State Solicitor recommended him for promotion. The applicant also noted a comment in this May 1996 record that he had attempted to improve. The applicant said that there was never any discussion about his work performance because he was an excellent worker who took pride in his work. The applicant said that the former Chief State Solicitor was "downgrading" him in his recommendation to the Attorney General and suggests this demonstrates ill will towards him. The applicant argues that the former Chief State Solicitor's memo is wrong and not factual and that this is demonstrated by the very good reference by his immediate supervisor. The applicant also expressed concerns that the negative assessment would reflect poorly on him if potential employers contacted the CSSO seeking a reference for him.  

The Investigating Officer provided the applicant's comments to the CSSO and requested submissions in the matter. The CSSO stated that, on the balance of probabilities, the applicant failed to show that the former Chief State Solicitor's opinion is incomplete, incorrect or misleading. It said, neither the reference provided by the applicant or his views have shown that the statements made in the Record are incorrect. The CSSO said the record in question was a letter from the Chief State Solicitor to the Attorney General in which the Chief makes a recommendation to the Attorney on the applicant's suitability for promotion, citing multiple examples to support his recommendation.

The CSSO said that the reference by the then head of the High Court provided by the applicant refers to a different period of time as it was issued over 3 years before the comments issued in the memo by the Chief State Solicitor. The CSSO also said that this reference letter has a different purpose as it only relates to the applicant's time in the High Court. The CSSO further argued that a difference of opinion is not sufficient to alter or change an existing record. The CSSO noted the comments in the Record also includes a reference to an intervention by the applicant's senior (manager) aimed at improving his performance, which it claims to support the opinion expressed in the Record. In response to concerns raised by the applicant in relation to references for potential employers, the CSSO said the memo would have no bearing on any reference that might be provided by it. The CSSO said that when providing work references, it is the standard practice of its Human Resource section to only confirm information such as an individual's employment history, sections worked in, etc.  

I have had regard to the submissions made by the applicant and the CSSO as well as the record in question and the evidence put forward by the applicant in support of amending the Record. The evidence before me consists of the reference provided by the applicant which was written in June 1992 and the applicant's account of conversations he had

with the former Chief State Solicitor. The applicant contends that the reference more accurately reflects his work ethic. While I acknowledge the applicant's comments that the reference he received from his supervisor in June 1992 portrays a different view of the applicant than those expressed by the former Chief State Solicitor in his December 1995 assessment, it does not, in my view, demonstrate that the comments contained in the Record in question in this case are incomplete, incorrect or misleading. The reference provided by the applicant reflects a different assessment by a different manager that was written over 3 years before the record in dispute. It is not, in my view, beyond the balance of probabilities to suggest that a different assessment could be made over 3 years later by a different manager in the context of assessing the applicant for promotion. Furthermore, while I note the applicant's submissions that his recollection of conversations with the former Chief State Solicitor conflict with the written assessment contained in the record, these assertions, along with the reference, do not in my view form sufficient evidence to warrant the amendment of the Record.

Accordingly, in the particular circumstances of this case, I am not satisfied that the applicant has shown, on the balance of probabilities, that that information he is seeking to have amended is incomplete, incorrect, or misleading. I appreciate that this finding will be disappointing for the applicant. However, as I have indicated above, 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 does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.

In conclusion, therefore, I find that the CSSO was justified in refusing to amend the record in question, on the grounds that the applicant has not shown, on the balance of probabilities, that the information in the record is wrong, incomplete or misleading.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the CSSO's decision to refuse the applicant's request to amend the comments made in the records at issue in this case.

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

Richard Crowley
Investigator