Cinneadh
Ms. Y and National Shared Services Office
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147207-V3X6B8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-147207-V3X6B8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the NSSO 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 February 2025
On 15 January 2024, the applicant submitted an application to the NSSO under section 9 of the FOI Act for the amendment of her sick leave record between 2018 to March 2020 and again between 2021 and September 2023 “to include full reference to the details contained on gp medical certs as submitted and held by nsso”. In her application, she referenced previous correspondence wherein the NSSO had refused previous requests for amendment of that same information.
Initially, the NSSO refused the request and advised the applicant to contact the Legal Aid Board as her employer at the time. It said it did not have the discretion or authority to take decisions on personal data held on behalf of the Legal Aid Board. It said the parameters for which sick leave can be categorised/recorded on the HR system had been previously outlined to the applicant and that all relevant medical certs were stored on her file where the additional information relating to a medical cert can be viewed.
Following correspondence with this Office, the NSSO issued a decision on 2 February 2024, wherein it refused the application for amendment on the ground that the applicant had not provided sufficient evidence to support her assertion that the record was incomplete, inaccurate or misleading. It said the absence reason “work stress” was selected from the 28 predefined options available based on the medical certificates provided by the applicant, with the words “work stress” cited on all medical documentation submitted. It said the applicant was not seeking the amendment of her own records, but rather that she was seeking to amend the functionality of the Software system used to manage the recording of sick leave and absences across the Civil Service. It said it was neither practical or feasible to open the classification of sick leave to the interpretation of each individual and to allow for ‘free text inputting’ in the absence reason field on the system.
On 14 February 2024, the applicant sought an internal review of the NSSO’s decision, following which the NSSO affirmed its refusal to amend the records at issue. On 7 March 2024, the applicant applied to this Office for a review of the NSSO’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 correspondence between the applicant and the NSSO as summarised above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. The applicant has also previously sought a review by this Office of the decision taken by the Legal Aid Board on an identical application for amendment of the same records. That decision issued on 5 December 2024 (Case OIC-146445 refers). The applicant asked that the submissions she made as part of the review in Case OIC-146445 be considered in this review and I have done so.
During the course of the review, the NSSO agreed to amend an absence reason for the period of 2018 to March 2020 to “See Cert on File”. As the applicant has stated that in the absence of any free text option, she was willing to accept “See Cert on File” as an absence reason, I am satisfied that the NSSO’s decision to amend the particular entry removes it from the scope of this review.
Accordingly, this review is concerned solely with whether the Board was justified in refusing to amend the absence reasons cited in respect of the remaining relevant periods of the applicant’s sick leave.
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 NSSO 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. The applicant provided this Office 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 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 NSSO’s submissions
The NSSO said that the absences are recorded on the HR Management System and are managed by the NSSO for the administration of HR Services on behalf of civil service departments and public service bodies. It said the applicant requested that the classification of her sick leave recorded on the system be amended to include additional wording that is contained on the medical certificates in her HR file. It said that when reviewing the records, it found that the specific wording of “work stress”, which the applicant wished to amend, correlated with the predefined absence reason codes which are viewable on the employee absence summary screen of the HR system and was the most accurate reflection of the reason for absence. It noted that the applicant requested that an amendment be made to the imbedded absence reason codes, to allow for a free text option. It said the predefined list of absence reasons contains 28 options available to line managers that cover every basic eventuality of an officer’s sick leave. It said that once an absence is recorded by the line manager on the system, the NSSO then manages the absence of the officer, updating the absence if required. It said that in line with the standardisation brought about by Shared Services, the NSSO administers the application of Absence and Sick Leave in a consistent way to all of its clients via HRMS. It said that the functionality of HRMS allows the NSSO to provide its client Public Service Bodies and the Department of Public Expenditure, NDP, Delivery and Reform with accurate workforce reporting on HR functions such as absences, leave, and mobility for each client.
It said that the applicant’s records filed on HRMS reflect the reason for her absences as accurately and appropriately as possible. It said medical certificates recorded on the applicant’s file contain supporting information for the defined absence reason for each sick leave recorded on the system. It said that all medical certificates recorded on the applicant’s file, in relation to the absences under review, support the classification of “work stress” as an absence reason on HRMS. It said all medical certificates state “work stress” as the reason for the absence. It said that the applicant’s request for the NSSO to change the absence reason listed as “work stress” to essentially a free text option is not possible due to functional limitations on the NSSO’s HR administration on HRMS. It said that a change to the software system to include a free text option would require government approval by those responsible for Absence and Sick Leave circulars and consultation with all NSSO clients. It said that this would result in a major scoping exercise, software development, and system upgrade that would then need to be explored at a significant cost to the taxpayer.
The NSSO also explained that when recording sick leave, the line manager has a predefined dropdown on HRMS that they select from to record an absence reason for the officer. For the majority of absences, managers may not know the reason and therefore leave the reason as “Undisclosed”. It said that if, for any reason, the line manager cannot record the absence on the system, this responsibility then falls to their line manager or Local HR. It said that Local HR notify the NSSO of an officer’s absence, Local HR would then raise a case on the NSSO’s Case Management System with the instruction to the NSSO to record the absence on HRMS.
It explained that if the NSSO is manually raising an absence for an officer on behalf of a line manager/Local HR, the absence reason is set as “Undisclosed” unless the NSSO is instructed otherwise. It said that once the absence is recorded on the system, only the NSSO can then amend the absence reason, and that the NSSO Absence Team has access to an expansive list of absence codes on the system to record specific absences that are not available to line managers. It said that on receipt of the relevant medical certificate for the officer’s absence, the Absence Team selects the absence reason code that closely matches the information contained in the certificate e.g. a certificate with “Flu” can be recorded as “FLU” – Flu/Influenza or “FLC” – Flu/Cold. It said both absence reasons would technically match the medical certificate. It said that this absence reason is then input to the system using the relevant absence code, if there is no code or reason that closely matches what is contained in the certificate, the Absence Team records the absence as “Other” or “See Cert on File”. It said if there are multiple illnesses listed on a medical certificate and it is not indicative as to which illness takes priority, the Absence Team records the absence as “See Cert on File”. It said that the Absence Team will amend an absence requested by the officer to “See Cert on File”, only in certain circumstances such as when a sensitive illness is displayed on their absence record.
It said that the applicant contacted the NSSO Absence Team on 8 November 2023, on foot of a letter issued by the NSSO Absence Team on 3 November 2023, to request that the absence reason for these particular two periods be amended from “undisclosed” to “[stated condition] and work stress” and “see cert on file” to “[stated condition] and work stress”. The NSSO Absence Team amended the absence reason for both and confirmed to the applicant on 13 November 2023 that the changes were made. It stated that the Absence Team also informed the applicant that her absences must stay under the absence reason category “Work Stress” as it is not possible to add additional terms to predefined absence reasons on the HR system.
It said that in this particular request the most appropriate absence reason has been selected as “Work Stress” as it is cited on each of the medical certificates provided for the absences in question.
The Applicant’s submissions
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. While the applicant did not make a focused submission in respect of this case, I have explained above that she requested that this Office have regard to her previous correspondence on the matter as lodged with this Office, including in reference to Case OIC-146445. Accordingly, I have summarised the applicant’s arguments across both cases below.
In her email of 14 February 2024 to this Office in Case OIC-146445, 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 a decision was made 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.
In submissions provided on OIC-146445, 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.
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 NSSO has clearly stated that an absence reason code is selected that “closely matches” the information in a medical certificate, and that only in circumstances where there is no absence which corresponds what is contained in the certificate would “Other” or “See Cert on File” be used, or in circumstances where a sensitive illness is displayed.
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 NSSO has also stated that the Absence Team records the absence as “Other” or “See Cert on File”, if there are multiple illnesses listed on a medical certificate and it is not indicative as to which illness takes priority. The record at issue contains four periods of absence, one of which the NSSO has already agreed to amend, which leaves three periods for consideration. 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.
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 NSSO 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 NSSO’s decision. I find the NSSO 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