Decision
Mr A and Inland Fisheries
From Office of the Information Commissioner (OIC)
Case number: OIC-149955-G6L8N9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149955-G6L8N9
Published on
Whether IFI was justified in refusing an application, under section 9 of the FOI Act, for the amendment of a particular record on the basis that it is not incomplete, inaccurate or misleading
4 March 2025
This review has its background in a Fixed Charge Penalty Notice (FCPN) issued to the applicant by IFI and a subsequent complaint made by the applicant in respect of that FCPN. In dealing with the complaint, the Inspector for the area in which the FCPN was issued was asked to compile a report into the issuing of the notice.
The record at issue in this review is a copy of the report that was compiled. The report is referred to as Record 10 by the parties. The applicant made a Subject Access Request under data protection legislation and was provided with a partially-redacted copy of the record. Upon receipt of the record, in August 2023, the applicant contacted IFI expressing dissatisfaction with the contents of the report. He said that the report was “inaccurate, selective and omits relevant information, yet it is presented as a true and accurate record of events”. He requested that the record be “appropriately corrected, amended or deleted completely”.
IFI said that it evaluated the request and was satisfied that the record as it stands is accurate, based on the observations and notes taken by authorised warranted Fishery Officers and said that it was therefore not in a position to amend it. It noted, however, that there was information within the record that the applicant disagreed with and it stated that it was willing to add a supplementary note to the record. The original author of the report was also asked to add as an appendix the email correspondence from the applicant in which he expressed his dissatisfaction.
In December 2023, IFI received a further email from the applicant with supplementary notes to be added to the original record. The applicant also provided two signed statements from a witness in support of his position. IFI said that it made the necessary amendments to the record, adding the applicant’s “disagreement statement” and the two signed witness statements. It said that it confirmed this with the applicant in an email dated 21 December 2024 and provided a copy of the amended record.
On 17 January 2024, the applicant submitted an application under section 9 of the FOI Act for the correction, amendment or deletion of the record. He made a number of points in support of his request. He said that relevant officers made no notes during the encounter and that the record was excessively selective and biased. He said that most of the content of the record is irrelevant to the officers’ statutory duties of issuing a fine. He also referenced a particular line in the report which stated that officers “observed and noted that the person was consuming alcohol”. He said that he had not been provided with a copy of where such observations were noted by relevant officers. He said that the author of the report reached a particular conclusion in respect of his behaviour, based on one party’s account and that an independent observer’s written statement contradicts this assessment.
On 30 January 2024, IFI issued a decision to the applicant. With reference to section 9 of the Act, it said that it was part-granting the applicant’s request. It said that it undertook a review of relevant files and that a particular inspector was requested to furnish contemporaneous notes/records relating to the FCPN. It identified four records comprising copies of hand-written contemporaneous notes and part-granted these to the applicant, with certain redactions made under section 37(1) of the FOI Act, which is concerned with the protection of third party personal information. IFI also referenced section 15(1)(i)(i) of the FOI Act, which provides for the refusal of a request where it relates to records already released and available to the requester.
IFI also set out its rationale for refusing the correction, amendment or deletion of the report. It said that supplementary notes were received from the applicant and that these notes consist of his report of the events which took place on the day the FCPN was issued as well as witness statements. It said that these supplementary notes were added to the record in question. IFI referenced the right to erasure under data protection legislation. It said that it was obliged to retain certain personal information relating to the applicant.
On 12 February 2024, the applicant sought an internal review of IFI’s decision. He referenced the contemporaneous notes provided and said that he had requested a copy of where it was noted that relevant officers “observed and noted that the person was consuming alcohol”. He said that no copy was provided and he can only conclude that none exists. He said that the relevant report is therefore inaccurate. He said that none of the contemporaneous notes provided reference alcohol and he therefore queried where the content of the report came from.
On 6 March 2024, IFI issued its internal review decision. It said that it was affirming its decision. With reference to the contemporaneous notes provided, it said that these were by nature observations made by officers, deemed accurate at the time or immediately after observation of the event/incident. It said that the record at issue was compiled following oral interviews conducted by an assistant inspector with the staff concerned and a review of the contemporaneous notes.
On 20 June 2024, the applicant applied to this Office for a review of IFI’s decision. He said that the FOI body had created a “hearsay, unsupported, vindictive record and are refusing to remove the unfounded allegations” contained therein. He said that the contemporaneous notes provided do not reflect or reference the contents of the record and that documented independent witness statements contradict the claims in the report.
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 applicant and the FOI body. I have examined the record at issue and have had regard to the contents of other supporting documents provided by both parties to the review. I have decided to conclude this review by way of a formal, binding decision.
While the applicant clearly made an application to IFI under section 9 of the FOI Act, I note that IFI identified and released further records as part of its processing of the request. This appears to have been in response to the applicant’s reference to requesting a copy of where certain observations were noted. While IFI referenced certain exemption provisions in its decision-making records, the applicant’s application to this Office references IFI’s refusal to amend the relevant report. I am therefore satisfied that the review is concerned solely with whether IFI was justified in its refusal to amend the record at issue pursuant to section 9 of the FOI ACT.
It is also important to note that section 9 provides for the amendment of incomplete, incorrect, or misleading personal information contained in a record held by an FOI body. As such, an applicant seeking amendment of a record under section 9 should show, firstly, that that the information concerned constitutes personal information and, secondly, that the information is incomplete, incorrect or misleading. In respect of the amendments sought, in his application for internal review the applicant referred specifically to references in the report to alcohol consumption. His application to this Office referenced “unfounded allegations”. The report at issue contains two references to either the consumption of alcohol or the applicant being under the influence of alcohol. In light of the submissions received, I am satisfied that this is the information which the applicant is seeking to have amended.
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 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 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.
IFI Submissions
IFI said that the record at issue was generated as a result of a complaint wherein the applicant contested having received an FCPN. It said the director requested that the inspector for the area in which the FCPN was issued compile a report on the issuing of the FCPN so as to make a fully informed decision in relation to the complaint. It said the report was compiled by the inspector by orally interviewing the Fishery Officers involved and reviewing any contemporaneous notes that Officers had made in their fishery officer issued notebooks.
IFI said it understands that the applicant is seeking to amend two statements made in the original report. The statements are as follows:
• “[The Fishery Officers] also observed and noted that the person was consuming alcohol”
• “I am satisfied … that both officers were faced with [a] challenging situation dealing with an offender who was under the influence of alcohol”.
IFI said it did amend the record as sought by the applicant by adding supplementary notes to the original record in the form of the applicant’s disagreement and defence of the above statements and two independent witness statements. In respect of whether it considered that the applicant had shown the information to be incomplete, incorrect or misleading, IFI said it did not believe the applicant had provided any evidence to support that position. It said that four experienced Fishery Officers confirmed their observations separately to the inspector who was writing the report. It said that these are warranted trained officers who at all times follow protocol and strive to deliver the best possible service with courtesy and sensitivity. It said they are conscious of what is noted in a contemporaneous note and in any reports that follow. It said that if the details are considered sensitive they may not always be noted down in a contemporaneous note. It said that “IFI take alcohol consumption very seriously as it can put officers already in at risk situations by nature of the enforcement work that they undertake in greater danger when approaching stakeholders when breaches of fisheries legislation may be or are occurring”.
The Investigating Officer drew IFI’s attention to the information provided by the applicant in support of his position. In response, it said that the witness statements supplied were received directly by the applicant from a person who is known to him and therefore cannot be considered an independent witness.
Applicant Submissions
The applicant was also invited to make submissions in respect of his position that the record qualifies for amendment under section 9. In response, he said that there is no correlation between the four officers’ contemporaneous notes and the report at issue. It said that “one would not believe that the contemporaneous notes and Record 10 are supposed to be a record of the same event”. He referenced an independent witness statement submitted and said that, in his view, the statement has more value as the report is only hearsay. The witness stated that the applicant did not present as someone under the influence of alcohol. The applicant said that there is no correlation between the four independent officers’ individual contemporaneous notes and record 10 or any reference to alcohol in any of the four contemporaneous notes.
In response to IFI’s stated position that the report was compiled following oral interviews conducted with staff concerned and a review of the contemporaneous notes, the applicant posed a series of questions including: were there interviews, where did that take place, what supporting evidence did IFI provide, where are the notes from the interviews, does IFI normally hold interviews with their staff after the issuing of a fine?
The applicant said that the officers have the power to issue fines, confiscate private property and initiate criminal charges against any member of the public. He said that creating notes and proper records is imperative in case of a matter going to court and he said that he “can’t imagine the courts would accept that no notes were created at an oral interview if such a thing happened”.
The first statement the applicant believes to be incorrect is a purported factual account of what the Fishery Officers observed, namely that the applicant was consuming alcohol. The question I must consider is whether the applicant has shown that the statement is, on the balance of probabilities, incomplete, incorrect or misleading. In support of his position, the applicant has referenced and provided two witness statements (from the same named individual). He has also referenced the fact that the contemporaneous notes make no reference to alcohol. IFI’s position is that the report was compiled following oral interviews and a review of the notes. It referenced the experience and training of its Fishery Officers and noted that the witness statements were provided by an individual known to the applicant.
As I have noted above, it is not the role of this Office to seek to conduct its own comprehensive inquiry as to the accuracy of the records held by a public body. I must have regard to the evidence actually provided by the applicant and any rebutting evidence put forward by the FOI body. The two witness statements the applicant referenced in support of his application for amendment contain no details as to whether the applicant was or was not consuming alcohol at the time. Instead, the second statement merely contains the witness’ opinion that the applicant did not present to him as someone who had consumed, or was under the influence of, alcohol. This is not evidence which shows, on the balance of probabilities, that the applicant was not observed consuming alcohol.
On the matter of the contemporaneous notes making no reference to alcohol, IFI said that certain information will sometimes be withheld from such notes if it is considered sensitive and it made submissions in respect of how seriously it takes alcohol consumption. In light of the serious nature of such allegations, it seems to me that IFI’s approach of not always detailing such matters in contemporaneous notes may lead to difficulty in circumstances where further investigations or reports are required. That said, I note that this is the stated position of IFI and there is no evidence before me to suggest that it is not the approach taken. It is relevant to note that the FCPN which issued relating to the breaching of a particular bye-law which was unrelated to any alcohol consumption but instead concerned the manner in which “bait fishing or spinning” was being undertaken. The contemporaneous notes are short and high-level and reference the subject matter of the FCPN. In any event, the fact that the contemporaneous notes make no reference to alcohol does not, of itself, mean that the Fishery Officers did not observe the applicant consuming alcohol. Accordingly, I find that the applicant has not shown, on the balance of probabilities, that the statement in the record that he was observed consuming alcohol is incomplete, incorrect or misleading.
The second statement at issue comprises, in essence, the opinion of the author of the report that the applicant was under the influence of alcohol at the time of his engagements with the Fishery Officers. The Act defines personal information as including the views or opinions of another person about the individual. As such, the right of amendment of personal
information includes the right of amendment of opinions that are incomplete, incorrect or misleading.
While not seeking to present an exhaustive list of the circumstances in which an opinion might be found to be incomplete, incorrect or misleading, this Office 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.
The applicant has not suggested that the opinion in question is somehow flawed because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion. Rather his argument is, in essence, that the opinion is incorrect by reason of the total inadequacy of the factual information underlying the opinion. However, he has presented no evidence to support that argument. As I have outlined above, the witness statement provided merely contains the witness’ opinion that the applicant did not present to him as someone who was under the influence of alcohol. Of itself, it does not support an argument as to an inadequacy of factual information underlying the opinion contained in the record.
It seems to me that the author of the report reasonably described that applicant as “under the influence of alcohol” as a result of the Fishery Officers having stated that they observed the applicant consuming alcohol. Moreover, as I have explained, the fact that the contemporaneous notes make no reference to alcohol does not, of itself, mean that the Fishery Officers did not observe the applicant consuming alcohol. In the particular circumstances of this case, I find that the applicant has not shown that the statement at issue is, on the balance of probabilities, incomplete, incorrect or misleading.
For the sake of completeness, I wish to once again note that the fact that an applicant fails to provide sufficient evidence to enable this Office 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. However, I am satisfied that the applicant’s statement which has been appended to the record, along with the relevant witness statements, makes it clear to any subsequent reader that the applicant strongly disputes certain parts of the IFI’s report.
In conclusion, and in light of the above analysis, I find that IFI was justified in refusing to amend the record at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm IFI’s decision. I find that it was justified in refusing to amend the record at issue.
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