Decision
Mr A and the Department of Defence (the Department)
From Office of the Information Commissioner (OIC)
Case number: 130212
Published on
From Office of the Information Commissioner (OIC)
Case number: 130212
Published on
Whether amendment of an internal Department email record pertaining to proposed job assignments, reported by the Department to have been made to the applicant and not to have been accepted by him, is required under section 17 of the FOI Act
19 February 2014
On 20 June 2013, the applicant made a request under section 17 of the FOI Act to the Department in relation to an email ("the email") concerning a note which he sought to have added to the Department's appropriation account. The note in question referred to the period 2004 to 2012, and the email recorded that, during that period, the Department had attempted to assign work to him, and that he had refused to accept the work assignments in question. The applicant sought the correction of the email in relation to the statement that he had refused work assignments. In support of his application, he produced a minute of a meeting of 28 February 2006 between himself and the Department's HR Manager, at which potential work assignments for him were discussed, according to the minute.
By letter dated 16 July 2013, the Department refused his request, saying that he had failed to show, on the balance of probabilities, that the email was incorrect. The Department's representative also expressed the view that the minute on which the applicant relied did not support this position.
The applicant sought an internal review of this decision, by means of a submission dated 17 July 2013. In this submission, he contended that his position was overwhelmingly supported by the minute he had provided.
The Department, on foot of its internal review, again found that the statement in the email was not incomplete, incorrect or misleading and again refused the request, by letter dated 9 August 2013. However, it decided that the record should be amended by the addition of a statement to the effect that the applicant disputed the Department's position, in accordance with Section 17(1)(ii) of the FOI Act (the wording of the relevant provision of the FOI Act is given below).
In the course of this review, the Department agreed to amend the record to state that the applicant "did not accept" certain assignments, rather than that he "refused" them. Accordingly the matter before me for determination is whether the Department is justified in refusing to further amend the record; the record in question being the original record, as modified by the Department's addition of the statement relating to the applicant's disagreement with the content of the original record, and by the amendment of "refused" to "did not accept" ("the amended record").
By letter dated 22 January 2014, Mr. Richie Philpott advised the applicant, on behalf of the Information Commissioner, of his preliminary view that the amended record is not incomplete, incorrect or misleading as provided for in section 17 of the FOI Act, and that the Department has no obligation to further amend the record under that section. The applicant responded by letter dated 24 January 2014, rejecting that position, and, therefore, having regard to the applicant's response, I have decided to conclude this review by way of a formal binding decision.
In conducting this review, I have had regard to all of the correspondence and contacts between the applicant and this Office, to records of communications between the applicant and Department representatives, including the correspondence pertaining to his FOI request. I have also had regard to the text of the email, both in its original form, and as amended. In addition, I have had regard to correspondence between this Office and the Department pertaining to the matter, and also to the relevant provisions of the FOI Act.
The scope of this review is confined to the question of whether the Department is justified in refusing to further amend, under section 17 of the FOI Act, the text of the email which the applicant sought to have amended under that section.
Section 17 of the FOI Act provides that:
"Where personal information in a record held by a public body is incomplete, incorrect or misleading, the head of the body shall, on application to him or her in that behalf, ... by the individual to whom the information relates, amend the record —
(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."
I am satisfied that the information in the email does constitute personal information in relation to the applicant and that, accordingly, section 17 of the FOI Act may be invoked in relation to this personal information. The Department has not, at any stage, disputed that the information in the email does constitute personal information in relation to the applicant. It is not necessary, therefore, to consider this aspect further.
Once the information at issue has been found to be personal information in relation to the applicant, there are two further steps in dealing with section 17 applications. The first step is to decide whether or not the personal information in question is "incomplete, incorrect or misleading" and thus requires to be amended. Where the information has been found to be "incomplete, incorrect or misleading", the second step is to decide what form that amendment should take. Section 17, as set out above, identifies three possible forms of amendment.
The Information Commissioner has previously taken the view that the onus of proof in section 17 cases lies with the applicant as the party asserting that the information is incomplete, incorrect or misleading, and that the standard of proof in such cases is that of the "balance of probabilities". Similar standards have been applied in relation to the current FOI review.
In examining the accuracy of the amended record, it is clear that that there are two matters at issue, i.e. whether the Department proposed work assignments to the applicant, and whether or not he accepted those assignments.
In support of his submission that the amended record is "incomplete, incorrect or misleading", the applicant has provided two records -- one of which he prepared -- of a meeting which took place between himself and the Department's then HR Manager, in 2006 (the second record consists of brief notes prepared by the HR Manager following the meeting). He contends that these records support his position that he was not offered specific work assignments, and that he did not reject any such work assignments. He has pointed out, in a submission dated August 2013, that the records of the meeting show that he and the Department's HR manager were discussing all possible option for him to be given a meaningful work assignment in the Department, and that, in fact, he was not given any work assignment in the Department until 2012.
It is clear that his interpretation of events is that he was not (prior to 2012) offered any specific work assignment, and that he was therefore not in a position to accept or refuse any such offer.
On the other hand, in correspondence with this Office relating to the matter, the Department has pointed out that its position is clearly outlined in a submission it made to the Labour Court in 2009. This submission was made in the context of an appeal, by the Department, against a decision of the Equality Tribunal, in a case the applicant had taken against the Department, in relation to allegations of victimisation he had made against it. In its submission, the Department stated clearly that efforts were made to assign the applicant to work on two specific projects within the Department. The Department records that "These offers were unsuccessful". It further records that, in response to one of the work assignment offers in question, the applicant responded that it was not a real offer of meaningful work. The Department's submission also records other attempts to offer work to the applicant in 2005, and states that "These efforts were rebuffed" by the applicant.
It is clear that the Department's view is that a number offers of work assignments were made to the applicant, and that he did not accept them.
The applicant has submitted that his record of the 2006 meeting demonstrates that he was not offered specific work assignments, so it follows that he could not have rejected something that was never offered to him. However, the records the applicant cites in support of his view on the matter are of one particular meeting. If I were to accept the applicant's position that he was not offered work assignments at that meeting, then any record stating that he was offered such assignments would fall to be amended. However, the email which the applicant has sought to have amended refers to "his lack of work output in recent years" and includes a reference to the Department's attempts to assign work to him "during the course of the period in question". The applicant did not seek amendment of these particular references, so I am satisfied that the "period in question" in the record the amendment of which is sought spans a number of years. Accordingly, in my view one question that must be considered is whether or not the applicant was offered, but did not accept, work assignments over that time period.
It is clear from the Department's submission that it considers its engagement with the applicant over a number of years did involve a number of work assignments being made which the applicant did not accept. Therefore it is also clear that the Department does not accept the interpretation the applicant has taken from the records of the meeting with the HR Manager in 2006.
I have also considered the wording of the applicant's original FOI request to the Department and his submission to this Office. In the former, the applicant stated "while I queried assignments I did not refuse them", while in the latter he stated "there never were work assignments on offer". These two statements appear contradictory to me, as in one the applicant asserts there never were any work assignments, whereas in the other he states that he "queried assignments", which he could not have done unless there were assignments that could be queried.
It is not my role to determine whether any specific interpretation of the position is correct. My role is simply to determine whether the applicant has made a sufficiently persuasive case to the effect that the Department's interpretation of the position is incorrect, on the balance of probabilities. What I see as contradiction between the applicant's statements in his original FOI request to the Department and his submission to this Office lead me towards concluding that the applicant has not met the required test regarding the accuracy of the record, the amendment of which is sought. Furthermore, while the applicant's record of the 2006 meeting with the HR Manager makes an arguable case for concluding that he was not offered work assignments at that particular meeting, it does not in my view demonstrate that the Department's position, that he was offered work assignments over a longer period of engagement with him on the issue, is incorrect, on the balance of probabilities. Therefore in my view the applicant's submission in this matter does not pass that test. That is not to say that I deem his interpretation to be incorrect, but simply that I have not been persuaded, on the balance of probabilities, that the Department's interpretation is incorrect.
As I have stated above, the position of the Information Commissioner is that the onus is on the applicant to prove that the amended record is "incomplete, incorrect or misleading" and, in my view, the applicant has not provided sufficient evidence to show that this is the case. I must therefore conclude that there is no obligation on the Department to further amend the amended record, and that it has met its obligations under Section 17 of the FOI Act in this case. I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in relation to the section 17 application in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.
Sean Garvey
Senior Investigator