Decision
Ms D and the Department of Social Protection (the Department)
From Office of the Information Commissioner (OIC)
Case number: 110111 and 120037
Published on
From Office of the Information Commissioner (OIC)
Case number: 110111 and 120037
Published on
Whether the Department has complied with the provisions of section 17 of the FOI Act in relation to the amendment of certain records
16 June 2014
On 2, 20 and 23 April 2011, the applicant, by way of three requests under section 17 of the FOI Act, applied for the amendment of two specified records, relating primarily to her employment in 2006 and her residency in Ireland during the period December 2006 to March 2007. The Department refused the requests, but agreed to include a copy of the applicant's FOI requests on its case file and the reasons why the records were not changed.
The Department affirmed its original decisions in its internal review decisions of 6 May 2011 and 9 June 2011. On 20 June 2011 the applicant sought a review of the Department's decisions, and case number 110111 was assigned to her application.
On 21 January 2011, the applicant, also under section 17, sought amendment of another specified record, also relating to her residency in Ireland during the same period as referred to above. In the original decision dated 7 March 2011, the Department agreed to some but not all of the amendments sought by the applicant, who applied for internal review of this decision with regard to three specific amendments.
The Department affirmed its refusal of the further amendments sought by the applicant in its internal review decision dated 25 March 2011. On 29 March 2011 the applicant applied to this Office for review of this decision. For procedural reasons, the file was closed on 28 April 2011. On 9 February 2012 the applicant again applied for review of the Department’s decision, and case reference number 120037 was assigned to her application.
As both applications concern the same core issues, ie the matters of the applicant’s residency in Ireland during a particular period and her employment in 2006, I have decided to deal with them by way of a composite decision.
During the course of this review, this Office engaged with the applicant and the Department with a view to seeking an informal resolution of these cases. In the course of this engagement consideration was given to amending a subsequent submission to the Social Welfare Appeals Office (SWAO) dated 8 June 2011, prepared by another named Departmental official. However, it was not possible to reach a settlement between the parties. The applicant requested amendment of this subsequent submission to the SWAO in her email of 9 May 2014 and in subsequent correspondence to this Office. However, as has already been explained to the applicant, amendment of this document was considered in the context of seeking informal resolution of this case and, accordingly, such amendment is outside the scope of this formal review.
Preliminary views on these cases issued to the applicant on 20 November 2012. Ms Alison McCulloch, Investigator of this Office, issued further preliminary views on 12 March 2014, and 2 May 2014 in which she informed the applicant of her view that no further amendment of the records is required. On 12 May 2012 the applicant responded by way of a long email outlining her arguments in detail for amendment of her records, to which over 50 documents were attached, each of which have been examined and considered and in which she confirmed she did not accept Ms McCulloch's preliminary views. Ms McCulloch responded to the applicant on 3 June 2014. Accordingly, I have now decided to conclude these reviews by way of a formal binding decision.
Through her four FOI requests, under section 17, the applicant sought 14 alterations to her personal information in documents held by the Department. The Department agreed to nine of the requested alterations, five of which it made through deletion of the inaccurate information as requested by the applicant, and four of which it made by amendment rather than deletion as sought by her. It did not agree to the five remaining requested alterations. In response to Ms McCulloch's preliminary view, the applicant did not confirm whether she accepted the five alterations by deletion or the four made by amendment, and she continues to contend the remaining five alterations should be made.
Regarding the five alterations by deletion agreed to by the Department, I agree with Ms. McCulloch's view that such alteration was correctly made in line with the provisions of section 17 of the FOI Act, and in the absence of any response from the applicant on this view, see no reason to depart from it. Accordingly, those five alterations are no longer within the scope of this review and will not be considered further. Therefore, this review is confined to the questions of (i) whether the Department’s decision to alter four of the nine alterations referred to above through amendment rather than deletion as sought by the applicant satisfies the requirements of section 17, and (ii) whether its refusal to make the remaining five of the 14 alterations sought by the applicant relating to her employment in 2006 and residency in Ireland was justified.
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 records 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 records does constitute personal information in relation to the applicant. It is not necessary, therefore, to consider this aspect further.
As the information at issue has been found to be personal information in relation to the applicant, the next step is to decide whether or not the personal information in question is "incomplete, incorrect or misleading" and thus requires to be amended.
The applicant's submissions have provided me with a clear indication as to the manner in which, in her view, the records are flawed. Given the requirements of section 17 as referred to above, however, I would not be justified in directing that a public body amend its records on the sole basis of statements or opinions - however strongly held - by the person to whom those records relate.
The approach of this Office in cases of this nature is that section 17 of the FOI Act puts the onus on the person seeking amendment of the records to demonstrate that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading. This approach is set out in case number 98158, (see this Office's website), where the previous Information Commissioner found that an applicant seeking to exercise their right of amendment under section 17 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading. In that regard section 17 places the onus on the applicant to demonstrate that the disputed information is, in this case, inaccurate.
The Department altered four portions of the records by amendment rather than by deletion as sought by the applicant. These portions referred to, primarily, members of her family, her address and her residency. The applicant argued for deletion of these records due to the inaccurate information contained therein. The Department accepted the information was inaccurate and decided to alter the records by amending the inaccurate information rather than by deleting it, as sought by the applicant, and provided copies of these amendments to the applicant and this Office.
The matter of alteration of records through amendment or deletion of inaccurate information was dealt with by the former Commissioner in Case No. 98158, as referenced above. In that case the former Commissioner stated:
"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. Consideration should also be given to possible future use of the record and to the effect of the form of amendment on the future usefulness of the record.
. . . . .
In my view the deletion of information from a record, on foot of an application under section 17, is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. Without wishing to lay down an inflexible rule on this point, it seems to me that deletion of incorrect information from a record is only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect."
In this case, the records the Department has agreed to amend are sourced from a combination of Child Benefit Section and the former Minister’s constituency office, and set out what the Department at the time believed, albeit mistakenly, to be correct information regarding the applicant and her family members. The deletion of the information originally recorded would, in my view, interfere with the historical accuracy of the record, whereas its alteration by the amendments made by the Department replaces what it accepted as inaccurate information with the correct version of that information without diluting the historical accuracy of the record’s contents. It seems to me that no significant adverse effect could follow from the altered records as the altered version of the records, which makes it clear that the amended text was accepted as inaccurate, is what any future reader of the applicant’s file will see. For this reason I am satisfied that the alterations to the records made by amendment by the Department are consistent with the provisions of section 17 of the FOI Act, and that no further alteration of the information relating to the applicant’s family members or her address is required under that section. I find accordingly.
The records state that the applicant and her family moved to Australia in December 2006, returned to Ireland for one month in April 2007 and returned permanently to Ireland in April 2009. The applicant disputes the accuracy of this information as she contends that she and her family were permanently resident in Ireland from December 2006 to March 2007, and seeks alteration of the records accordingly. According to the Department, the constituency office contacted the applicant's relative requesting documentary evidence to verify dates of residence of that relative's family. The applicant disputes this information and provided a letter from that relative stating that he 'did not make representations of the nature outlined in [named official's] letter'. The applicant subsequently provided a passport to the Department in support of her contended residency in Ireland but according to the Department, that passport does not demonstrate residency over the period in question, December 2006 to March 2007.
This Office asked the applicant to provide evidence of being physically present in Ireland for the period in question in support of her application for alteration of the records. She provided copies of the flight booking emails showing that flights were booked for the family to depart from Dublin to Australia on 12 May 2007 and return on 17 April 2009. The applicant also provided copies of completed forms she signed when she applied to be excused from signing for Unemployment Benefit when taking holidays. These forms are dated 1 and 26 January 2007 respectively. However, the Department stated that these forms are signed in advance and post dated and do not confirm that the applicant was present in the Dun Laoghaire Local Office on those dates. The applicant also provided printouts of payments made to her showing that she was paid Unemployment Benefit up to March 2007. The Department said that she last signed in the Dun Laoghaire Local Office on 22 November 2006 and was excused from signing for the remaining period up to March 2007 when her payments stopped. The applicant contends that the printouts referred to above are a record of her PPSN card bring swiped which demonstrates her physical presence in Ireland during the December 2006 to March 2007 period. However, according to the Department, the printouts record actions taken by it in certifying payments it made to the applicant, rather than activity on her PPSN card.
It is clear that the applicant disputes the accuracy of the records regarding her attendance at Dun Laoghaire Local Office and the representations made to the former Minister’s office. In these circumstances, as stated above section 17 puts the onus on her to demonstrate that, on the balance of probabilities, the information in those records is inaccurate.
In order for the amendment sought by the applicant to be justified, I would need to be satisfied that the balance of probabilities test has been met in this case. While the applicant has contended that the records are inaccurate and provided documentation to support that contention, that documentation in my view does not contain evidence that would lead me to conclude that the records are in fact inaccurate. In particular, while I can accept that the flight booking emails provided by the applicant demonstrate that she left and returned to Ireland on the dates specified in those emails, I do not accept that the dates of those flights (outward on 12 May 2007 and inward on 7 April 2009) demonstrate that she was physically present in Ireland during the period December 2006 to March 2007. For these reasons, I am not satisfied that the applicant has, on the balance of probability, demonstrated that the information at issue is inaccurate and I find accordingly.
The records concerning the applicant's employment state that she gave up work when her child was born. In support of her request for deletion, the applicant provided evidence of her receipt of Jobseekers Benefit for the period 15 February 2006 to 14 March 2007 and stated that being available for work is a condition of the receipt of that benefit. I agree with the applicant on that point, but I do not accept that the receipt of Jobseekers Benefit by the applicant, of itself, is sufficient evidence to demonstrate that the Department's statement that she gave up work when her child was born is inaccurate. Accordingly, I find that, on the balance of probability, the applicant has not demonstrated that the information at issue is inaccurate.
Therefore, in the absence of evidence to demonstrate, on the balance of probabilities, that the records subject to this review are incomplete, incorrect or misleading, I find that the Department was correct in its decisions (i) to alter the records by amending inaccurate information in the four instances set out above and (ii) to refuse to make the five further alterations sought by the applicant.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I find that the Department has correctly applied the provisions of section 17 of the FOI Act. Accordingly, I hereby affirm the decision of the Department 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. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator