Decision
Ms. Z and Legal Aid Board
From Office of the Information Commissioner (OIC)
Case number: OIC-146445-Q8H3S5
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URL: http://www.bailii.org/ie/cases/IEIC/2024/146445.html
Cite as: [2024] IEIC 146445
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Whether the Legal Aid Board was justified in refusing a request for the amendment of the applicant's sick leave records on the basis that the records are not incomplete, inaccurate or misleading.
4 December 2024
On 23 November 2023, the applicant sent an email both to the Legal Aid Board and to the National Shared Services Office (NSSO), wherein she referred to previous correspondence she had exchanged with the NSSO. She explained that she had applied to the NSSO on 8 November 2023 for the amendment of the classification of her sick leave record between 2018 to March 2020 and again between 2021 and September 2023 and that the NSSO refused her application. She said she was seeking a review of the decision to refuse the application for amendment. She added the following:
"Pursuant to s.9 of Freedom of Information act, please review my sick leave record since 2018 and amend sick leave record to include full reference to the details contained on gp medical certs as submitted".
She said the NSSO acts on the instructions of the Legal Aid Board, and that the Board is responsible for the actions of the NSSO in accordance with the provisions of the NSSO Act 2017.
By letter dated 6 December 2023, the Board erroneously described the correspondence of 23 November 2023 as both a request for records and an application for amendment of certain records. It said some of the records to which access was sought were not held by the Board but may be held by the NSSO. It indicated that a decision on her application for amendment of records that it held would issue in due course.
By email dated 15 December 2023 to the Board, the applicant said the Board had indicated in its letter that the medical records she sought to be amended were not available to be amended as they were held by the NSSO. She sought a review of what she described as the Board's refusal to amend her sick leave record. She said the NSSO acts as agent of the Board and has a contract with the Board regarding the FOI Act. She again asked the Board to amend her sick leave record.
On 11 January 2024, the applicant applied to this Office for a review of the deemed refusal of her application for amendment. Following correspondence with this Office, the Board issued its effective position on the application for amendment on 9 February 2024, namely that it had decided to refuse the application for amendment as it did not consider the records at issue to be incomplete, incorrect or misleading. On 14 February 2024, the applicant asked this Office to proceed with a review of the Board's refusal of her application for amendment.
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 Board and to the correspondence between this Office and both parties on the matter. The applicant has also sought a review by this Office of the decision taken by the NSSO on the same application for amendment. While this decision does not concern that review, the NSSO provided certain information concerning the recording of sick leave reasons on its electronic HR case management system (the HRMS) that is of relevance in this case and I have had regard to that information. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Board was justified in refusing to amend the applicant's sick leave record for the period in question.
The Records at Issue
The NSSO is an Irish shared services provider for human resources, payroll administration and finance services for government departments and public service bodies. It was established under the National Shared Services Office Act 2017 (the 2017 Act). That Act provided for the transfer to the NSSO of certain functions of the Minister for Public Expenditure, NDP Delivery, and Reform relating to the provision of certain services to public service bodies. It also provided for the delegation by order to the NSSO of certain functions of public service bodies relating to those services, including functions consisting of or relating to the management of data or classes of data relating to absence, leave and performance of staff. The relevant order is National Shared Services Office (Delegation of Functions) Order 2018 (SI No. 267/2018). Section 9(4)(d) of the 2017 Act provides that "a function of a public service body delegated by the delegation shall, notwithstanding the delegation, as the case may be, continue to be vested in the public service body concerned but shall be so vested concurrently with the Office and so as to be capable of being performed by either the public service body or the Office". Sick leave absences for the staff of the relevant public service bodies, including the Board, are recorded by the relevant bodies and/or the NSSO on the HRMS.
For the purposes of the review, the Board provided this Office with a record comprising a screen grab from the HRMS which records the applicant's sick leave details. The record contains entries for four periods of sickness absence, between 14 March 2018 and 3 September 2023. The reason for each of the four periods of absence is recorded as "Work Stress". As I have outlined above, the applicant sought the amendment of her sick leave record to include full reference to the details contained on certain medical certs as submitted. In her application for amendment, as set out in her email dated 23 November 2023, she provided copies of eight specific medical certificates covering three of the four relevant periods and described the classification contained in those certs that she wanted to be input to the HRMS.
Section 9
Section 9 provides for the right of amendment of incomplete, incorrect or misleading personal information in records held by FOI bodies. The Act is silent on the question of where the onus of proof lies in section 9 cases. The 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 consider it his 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 to 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 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.
The Board's Effective Position
In its effective position dated 9 February 2024, the Board referenced the NSSO's position that absences are recorded on the relevant part of the HRMS with as accurate an "Absence Reason" as possible on examination of the reason given on the public servant's sick certificates, and that there is no free text option in that part of the system as it is a drop down menu of absence reasons. It said that "Work stress" is cited (on the relevant medical certificates) as the reasons for absences with other variations as to the resulting symptoms of that work stress. It said the reasons on the sick certificates is thus "work stress" and this is what has been selected by the NSSO to record the absence on this part of the applicant's absence record.
The Board further noted that the HRMS record is only one part of the collective record and that the system permits the uploading of sick certificates. It said the certificates form part of the overall record and that the entries the applicant sought to have added to the record form part of the overall record.
The Applicant's submissions
In her email of 14 February 2024 to this Office, the applicant said the reasons for her sick leave are as stated on her medical certificates as submitted. She said it is not sufficient to simply record the absence reason as "work stress". She said that while symptoms specified on the certificates were a symptom of work stress, they constitute a medical condition in their own right. She argued that it is not for the employer to decide what to remove or to keep when recording information under "absence reason" and that her employer was staying into medical territory in this matter.
The applicant said her employer changed her absence reasons in November 2023. She noted that the absence reasons for a particular period had been classified as "See Cert on file". She said she asked the NSSO to change that entry to an alternative specified entry as described on the relevant medical certificate, namely "[a specified medical condition] and work stress". She said the NSSO did not do so and instead changed the entry to "Work Stress". She said this change caused even less accuracy than before and compounded the error. She said this was a serious action, given that the purpose of generating the absence report was to create a referral to the Chief Medical Officer to consider the issue of discounting of sick leave. She said it appears that the Board made a decision that the specified medical condition is a resulting symptom of work stress in the period.
On the matter of the Board's assertion that the medical certificates form part of the overall record, the applicant said that it is precisely because the absence reasons are a separate part of an overall record that the issue has arisen. She said the medical certificates submitted do not tally with the absence reasons as recorded. She said the flawed absence reasons were circulated to third parties who would not automatically have access to the medical certificates. She said that while the absence reasons form part of an overall record, it is only her employer who has immediate access to her medical certificates as submitted and that this places an even more onerous responsibility on the Board to ensure that such medical certificates tally with absence reasons as recorded. She proceeded to outline certain scenarios that might arise in the event that incomplete, incorrect or misleading information is retained on an individual's record.
During the course of the review, the applicant was provided with an explanation of the role of this Office and its approach in relation to applications made under section 9 of the Act and she was invited to make further submissions. In response, the applicant said she was seeking the classification of all four sick leave entries to be amended to either "[specified medical condition] due to work stress", or failing that, "see cert for details". The applicant said she knows that the latter option is an available option on the drop down menu on the HRMS because in a letter from the NSSO dated 3rd November 2023, the NSSO used that description of one of the four periods under investigation. She said the description in question was only changed from "see cert for details" to "work stress" after she requested that all her sick leave be recorded as "[stated condition] due to work stress." She argued that the change of description from "see cert for details" to "work stress" was unfair since it operated only to exacerbate the original difficulty that she had highlighted to her employer, namely the inaccuracy of her sick leave record.
The Board's submissions
The Board said that in December 2023, it raised a query with the NSSO as to whether the applicant's sick leave classification could be amended to reflect what has been outlined on the medical certificates she had provided. It referred to the response the NSSO provided directly to the applicant wherein it indicated that the absences must stay under the classification displayed as it was not possible to add the specific terms identified. It said the NSSO confirmed this in its response to the Board but added that HR could raise a case to amend an Absence Reason although it would be limited to the list of reasons already available. The Board said it communicated this situation to the applicant in respect of her application for amendment.
The Board said it made no determination in respect of the applicant's medical condition. It said the source of the information recorded by the NSSO on the system in respect of the applicant's absences is the medical certificates and that these are uploaded and stored electronically by the NSSO and therefore form part of the employee's overall record. It said that due regard should be given to the information cited on the medical certificates by the medical practitioner in respect of the absences and the fact that the NSSO amended the absences reasons at the request of the applicant in her own communications to them. The Board pointed out that the certificates note an iteration of work stress causing other symptoms. It stated that when the NSSO staff member amended the absence reasons on its systems, in the absence of being able to enter a free text option, work stress would be the reason chosen.
The NSSO Correspondence
The NSSO explained that the absence reason field on the HRMS contains a predefined drop-down list of 28 options for line managers to select the most appropriate option to the staff member's absence. It said the absence reason "see cert on file" is a category option only available to the NSSO Absence Management Team when managing a staff member's absence. It said that reason is inputted by the NSSO Absence team only where there is no absence reason that closely matches what is contained in the medical certificate. It said "see cert on file" has never been a predefined absence option on the dropdown list for Line Managers to select on HRMS previously. It said that if there are multiple illnesses listed on a medical certificate and it is not indicative as to which illness takes priority, the NSSO Absence Team can record the absence as "see cert on file". It said a staff member cannot decide that they want their absence reason categorised with "see cert on file" when there is a more appropriate and accurate absence reason available on the system.
The NSSO added that it does not accept any instruction regarding absence reasons from line managers. It said that due to GDPR, the line manager does not have access to a staff member's absence reason. It said the NSSO Absence Team match as closely to the medical certificate as possible or would take instruction from the Local HR Section. It said that if a staff member is unhappy with a sensitive illness being displayed on their record, it can also change it at their request in certain circumstances. It said, however, that in this particular case the applicant specifically requested the NSSO to classify her illness with specific wording which is not an option. It said, in summary, that while it can draw attention to the certificate on file, the NSSO is limited to classifying an illness by the predefined codes on the HRMS system.
My Analysis
The question I must consider is whether the applicant has shown that the categorisation of the reasons for her various absences as "Work Stress" is, on the balance of probabilities, incomplete, incorrect or misleading.
There is an element of overlap between the terms incomplete, incorrect and misleading. Personal information in a record is not incomplete merely because the record does not contain all the information which the applicant might like it to contain. This Office considers that the word incomplete in section 9 is used in the sense of imperfect or defective or lacking certain requisite items or details. In deciding whether the information can be so described, regard has to be had to the purpose for which the information is held. It can be said to be incomplete if it lacks certain requisite details i.e. details required by the circumstances in which the record is created or required for the uses to which the record is put or which might put a different complexion on the information. In deciding whether information is incomplete, incorrect or misleading, the nature of the information and the purpose and context in which it is held is relevant.
The record that contains the information the applicant believes to be incomplete, incorrect or misleading is held on the NSSO's electronic recording system and allows for the categorisation of reasons for absences. It is apparent that the list of absence reasons recorded on the HRMS is intended to capture and categorise both as broad a range of absences reasons as possible and, presumably, the most common reasons given. It seems to me that the recording of reasons for absences is an important mechanism for HR Departments in its management and implementation of the relevant sick leave provisions, as set out in Circular 12/2023 (Management of Sick Leave in the Civil Service). I note, for example, that HR managers may decide to refer a staff member to the Chief Medical Officer (CMO) arising from his/her sick leave pattern. Indeed, on this point, it seems to me that the recording of absences as being attributed to work-related stress where appropriate is particularly important as, in accordance with Circular 12/2023, such cases must be referred to the CMO after 14 days, instead of the usual 28 days.
I note that one of the available reason categories for absences on the HRMS is "Other" and given the NSSO's statement that line managers must select the most appropriate option to the staff member's absence, it would appear that the "Other" category is appropriate only when there is no absence reason category available that is considered to appropriately describe the absence reason stated. I further note that another of the categories is "Undisclosed" which allows for the categorisation of absences where a reason is not provided. The system is clearly not intended to represent a verbatim account of information contained on individual medical certificates. Given the context in which absence reasons are recorded on the HRMS, it seems to me that in this case, the applicant must show that the recorded reasons of her absences as being due to "Work Stress" are incomplete, incorrect or misleading on the basis that another relevant category more accurately reflects the reason, which could include the entry "See Cert on File".
The record at issue contains four periods of absence. The medical certificate the applicant provided in respect of the second period of absence describes the absence as being due to "Work stress causing [other stated conditions]". In my view, this certificate clearly describes the reason for the absence as work stress. The fact that the certificate goes on to state that the work stress has caused other stated conditions does not, in my view, mean that the recording of the absence reason on the HRMS as work stress is incomplete, incorrect or misleading, given the context in which such information is recorded, as outlined above.
Similarly, the medical certificate the applicant provided in respect of the third period of absence describes the absence as due to "Increased [stated condition] due to ongoing work stress". While the certificate records a stated condition, it clearly indicates that the stated condition is due to ongoing work stress. Accordingly, I am not satisfied that the recording of the absence reason on the HRMS as work stress is incomplete, incorrect or misleading.
The vast majority of the medical certificates the applicant provided in respect of the fourth period of absence describe the absences as either due to "Increased [stated conditions] due to ongoing work stress" or "work stress causing {specified conditions]"". I note that one of the certificates provided in the course of the period describes the absence as being due to "Covid 19". However, in the context of categorising the absence reason for the overall period, as with periods two and three above, I am not satisfied that the recording of the absence reason for the period in question on the HRMS as work stress is incomplete, incorrect or misleading.
In her original application for amendment, the applicant said that the absence reason recorded on the medical certificates she submitted in respect of the first period of absence is "[stated condition] and work stress". The reason for absence that the applicant says is recorded on the relevant medical certificates does not suggest that either the stated condition or the work stress was the primary cause of the absence. As such, the applicant may argue that the recording of the absence on the HRMS as "work stress" is incomplete, in so far as it does not also reflect the other stated condition.
Having regard to the context in which the information at issue is recorded on the HRMS, I do not accept that argument. I note that the stated condition in question is not included in the list of categorised reasons for absence, while work stress is, indeed, included. In keeping with the aim of selecting the most appropriate option to the staff member's absence, and given the importance of recording work-stress related absences, it seems to me that such a categorisation is not incomplete, incorrect or misleading and, indeed, is reflective of the reason provided in the medical certificate.
I note the applicant's contention that the changing by the NSSO of the absence reasons from "see cert on file" to "work stress" was a serious action, given that the purpose of generating the absence report was to create a referral to the Chief Medical Officer to consider the issue of discounting of sick leave. On this point, I note that Circular 12/2023 provides that it is also open to the CMO to see the staff member or to seek a medical report. I also note the Board's submission that medical certificates are uploaded and stored electronically by the NSSO and therefore form part of the employee's overall record. Moreover, I note that when the applicant sought to have certain periods of her sick leave discounted, she was informed by the NSSO that the CMO asked that she would submit a confidential medical report relating to the absences in question.
I would add that I do not accept the applicant's contention that her employer was staying into medical territory by deciding upon the manner in which her absence reasons were recorded in this case. Instead, it was simply seeking to reflect as accurately as possible, within the confines of the HRMS, the reason for the absences as reflected in the medical certificates provided.
In conclusion, having regard to the context in which absence reasons are recorded on the HRMS, I am satisfied that the fact that the absence reasons recorded on the HRMS in this case do not contain all of the information recorded on the supporting medical certificates does not mean that those entries are incomplete. Moreover, having regard to that context and to the relevant reasons actually recorded on the medical certificates, I am not satisfied that the relevant entries on the HRMS are incorrect or misleading. I find, therefore, that the applicant has not shown, on the balance of probabilities that the entries in question are incomplete, incorrect or misleading. I find, therefore, that the Board was justified in refusing to amend the records in question.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Board's decision. I find that the Board was justified in refusing to amend the applicant's sick leave record in the manner sought.
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