Decision
Mr X and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-150030-H9W7Y7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150030-H9W7Y7
Published on
Whether the Department was justified in refusing an application for amendment, under section 9 of the FOI Act, of certain information relating to the applicant contained in a departmental email
13 February 2025
In an exchange of correspondence with the Department in September 2023, the applicant applied for an amendment of records under section 9 of the FOI Act. As I understand it, this application followed on from an FOI request wherein the Department released certain records to the applicant. Specifically, the applicant said that he was very unhappy with a reference in an internal departmental email which referred to him as “one of my more difficult customers”. He said that this was neither accurate nor true and that it needed to be corrected. He acknowledged that the Department had issued an apology in respect of the comment, but said that this did not go far enough. On 27 October 2023, the Department refused the application. It said that, having examined the record, it found no grounds under section 9 to amend it.
In May 2024, the applicant contacted this Office seeking a review of the Department’s decision. He was advised that this Office can only carry out a review in circumstances where the applicant has sought an internal review of the FOI body’s original decision, within four weeks of that decision being issued. The applicant’s position was that he had sought such a review and there was then further correspondence between the applicant and this Office, and with the Department. It is not clear to me whether or not the applicant requested an internal review within the appropriate timeframe. Notwithstanding that, the Department effectively accepted a late request for internal review and issued its internal review decision on 14 June 2024, in which it affirmed its refusal of the section 9 application. It said that the record in question related to an email exchange from an Investigating Officer to his superior requesting help with a “difficult” case and that this was the opinion of the officer at that point in time. On 21 June 2024, the applicant applied to this Office for a review of the Department’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 submissions made by the Department and by the applicant, and to the correspondence between this Office and the applicant and his correspondence with the Department, as summarised above. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned only with whether the Department was justified in refusing the applicant’s application, under section 9 of the FOI Act, for amendment of an email dated 29 June 2022.
In correspondence with this Office and with the Department, the applicant raised more general concerns about how he was dealt with by the Department. He described it as unacceptable and deeply hurtful, and said that the interactions had caused significant stress and upset both to himself and to his mother. It is important to note that this Office has no remit to investigate complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role in this case is confined to a consideration of whether the Department was justified in refusing to amend the record at issue.
Section 9 of the FOI Act provides for the amendment of personal information in records held by FOI bodies that is incomplete, incorrect or misleading. An applicant seeking to exercise the right of amendment under section 9 must show that (i) the information which is the subject of the application is personal information, and (ii) the information is incomplete, incorrect or misleading. The Act is silent on the question of where the onus of proof lies in such 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 considers that the standard of proof required 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 personal information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading.
This Office does not consider its 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 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 this Office that the record is, in fact, complete, correct and not misleading. This Office also considers that it 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 in this case is an email sent from a Social Welfare Inspector (SWI) in the Department’s Special Investigations Unit to his supervisor requesting help with a review that he had been asked to carry out of the applicant’s Disability Allowance claim. The email is two pages long and begins: “I need your help with one of my more difficult customers, [applicant’s name, PPSN], on DA since [year]”. The email then sets out certain information about the applicant’s employment, income, living arrangements and property purchases and concludes that a means assessment is needed but that the applicant “is not co-operating”.
The applicant has sought the amendment of the reference to him as a difficult customer. In his submissions to this Office, many of the points made refer to his broader complaint in relation to how the Department engaged with him. As noted above, this Office has no role in addressing such complaints. Specifically, in respect of the section 9 application, he said that he was catalogued as a difficult customer when he fully cooperated. He said that having received his file under FOI, he wished this harsh statement to be deleted or corrected and said that he had been told by the Department that such things should not be written on a customer’s file. He said that he was still awaiting this correction, as well as compensation. He said that the information on the file was clearly inaccurate and deeply insulting, and that it was damaging his reputation. He alleged that there was a cover-up going on in the Department.
In its submissions, the Department said that it did not accept that the information that the applicant sought to have amended was personal information relating to the applicant. It said that the record contained a view expressed by an experienced SWI that he regarded the applicant as one of his more difficult customers. It said that this was not personal information related to the applicant, but was an assessment by the Inspector who was examining the applicant’s claim, in comparison to other cases that he would have been examining at that time.
With regard to the Department’s position that the information at issue is not personal information, the definition of "personal information" at section 2 of the FOI Act includes "the views or opinions of another person about the individual". Accordingly, the right of amendment of personal information includes the right of amendment of opinions that are incorrect, in addition to the right of amendment of incomplete or misleading opinions. The opinion expressed by the SWI in this case described the applicant as one of the SWI’s “more difficult customers”. I am satisfied that the opinion comprises “the view or opinions of another person” about the applicant and as such, that it constitutes personal information relating to the applicant for the purposes of the FOI Act.
The view of this Office is that section 9 of the Act 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. Moreover, while this Office has not previously presented an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading", we would expect an applicant to satisfy us that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon.
As I have outlined above, the email containing the information at issue comprises a request by the SWI to his supervisor for help due to his inability to conduct a means assessment arising from what he described as the applicant “not co-operating”. It seems to me that in essence, his description of the applicant as one of his “more difficult customers” was based on his view that the applicant was not co-operating and comprised his relative assessment of his dealings with the applicant compared with other customers that he was dealing with. I am not satisfied that the opinion expressed is flawed by reason of the total inadequacy of the factual information underlying it. I note, for example, that in support of his view that the applicant was not co-operating, the SWI provided details in his emails of the reasons why he needed to conduct a means assessment and of his engagements to date with the applicant which he apparently considered to be hindering his ability to conduct the means assessment. While the applicant may disagree with the SWI’s view of his level of co-operation, this, of itself, does not provide a sufficient basis for me to find that the factual information underlying the opinion is totally inadequate.
On the matter of the existence of bias, ill will, incompetence, lack of balance or necessary experience, or some other particular factor, I note that the applicant made allegations against the SWI in his submissions, including that he was colluding with a named Garda. As I understand it, he also previously made a formal complaint to the Department in this respect and received a response. While I acknowledge the applicant’s strongly held belief that he has been treated unfairly by the Department and I do not dispute his assertions that it has caused him significant stress, he has not, in my view, presented evidence to satisfactorily show, on the balance of probabilities, that the opinion was flawed because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon.
In conclusion, while the inclusion of the term at issue in the relevant email was unfortunate and while the Department understandably and appropriately apologised for its use, I find that the applicant has not satisfactorily shown that the information is, on the balance of probabilities, incorrect, incomplete or misleading. I find, therefore, that the Department was justified in refusing his application for amendment. In doing so, I would again make the point that my finding does not carry any judgement on the part of this Office as to the accuracy of the information in question.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse the application for amendment under section 9.
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