Case number: 090005

Whether amendment of records was required under section 17 of the Act.

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Background

In an application to the Department dated 2 June 2008 the applicant sought amendment of records under section 17 of the FOI Act. The applicant said the record was "found within the file (Ref: [...]) on the page 9 and then duplicated on the page 25 and 33". He referred to three phrases in the record and requested, in the case of each phrase, that a statement be added to the record specifying that the information in the phrase was incomplete, incorrect or misleading and that the phrase be deleted from the record. In its decision of 1 July 2008 the Department stated that its decision maker did not have the authority to amend the records. In his letter to the Department of 21 July 2008 the applicant requested the amendments sought in his original application. On 4 December 2008 the Department affirmed its original decision and stated that the internal reviewer could not amend the records to which the applicant had referred. In an application received electronically by this Office on 7 January 2009 and by letter dated 8 January 2009 the applicant applied to this Office for a review of the Department's decision.

I note that on 11 February 2009 Mr Sean Garvey, Senior Investigator, of this Office wrote to the applicant setting out his outline position on the case. I also note that on 4 April 2011 Mr Colin Stokes, Investigator, emailed the applicant about the matter and on 12 July 2013 Ms Roisin Connolly sent an email to the applicant explaining her preliminary views in relation to the matter. Having regard to the applicant's responses, I have decided to conclude this review by way of formal, binding decision. In conducting the review, I have had regard to the correspondence (including emails) between the applicant and this Office, to correspondence between the applicant and the Department and to correspondence (including emails) between the Department and this Office. I have also had regard to the provisions of the FOI Act, to the contents of records supplied by the Department to this Office (including a copy of its file), to the contents of records supplied by the applicant to this Office, and to the website of the Irish Naturalisation and Immigration Service (INIS) as referred to by the applicant for the purpose of this review.

Scope of the Review

The Department's decision of 1 July 2008 stated that its decision maker did not have the authority to amend the records and its internal review decision of 4 December 2008 stated that the internal reviewer could not amend the records. It seems to me that the Department's statements in this regard are somewhat confusing. The information which the applicant sought to amend is in records emanating from the Department which are held by the Department. I am satisfied that if the information is personal information about the applicant which is incomplete, incorrect or misleading, it is within the Department's capacity to amend the records pursuant to section 17 of the FOI Act. In effect, the Department refused the applicant's application to amend the records pursuant to section 17 of the FOI Act.

My review in this case is concerned solely with the question of whether amendment of the records is required under section 17 of the FOI Act.

Analysis and Findings

Section 17(1) of the FOI Act provides that where personal information in a record held by a public body is incomplete, incorrect or misleading, the record shall be amended (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. Section 17(2) states that an application to amend a record shall, in so far as is practicable, include appropriate information in support of the application.

The approach in cases of this nature is the approach taken in Case Number 98158, Mrs. ABZ and the Office of the Revenue Commissioners in which the then Commissioner found that the applicant seeking to exercise the right of amendment under section 17 of the FOI Act bears the onus of proving that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading.

The applicant sought to amend three phrases. In his letter and email to this Office of 25 July 2013 the applicant has referred to the third phrase in particular and has argued that it is incomplete, incorrect or misleading and must be erased. For the sake of completeness, however, I will address all three phrases which he sought to amend in his original application.

The first phrase is "You were admitted to the State on 11/06/2003". In the applicant's opinion, this phrase suggests that he first came to Ireland on that date when, in fact, he had been in the country on a previous occasion. In its internal review decision the Department explained that this phrase is simply a statement of fact, that the stamp on the applicant's passport arriving at Dublin Airport confirms this and that it is not intended to imply that he had not been admitted to Ireland on previous occasions. A copy of a page on the applicant's passport provided to this Office by the applicant bears a stamp dated 11 June 2003 containing the words "Immigration Officer 11 JUN 2003 Dublin Airport". Accordingly, having regard to the Department's explanation, I find that the applicant has not shown, on the balance of probabilities, that this phrase is incomplete, incorrect or misleading. 

The arguments made and the issues arising in relation to the second and third phrases which the applicant seeks to amend are similar and related. I will address these arguments and issues together. The second and third phrases which the applicant sought to amend are "and were subsequently granted permission to remain until 20/06/2006", and "You have remained in the State since that date without the permission of the Minister for Justice, Equality and Law Reform. You are therefore unlawfully present in the State."

The applicant argued that it appears that the date in question, 20 June 2006, is the date of expiry of a visa and that "The duration of stay is determined not by the visa, but endorsed by the stamp in one's passport on behalf of the Minister.". In a letter to this Office dated 9 March 2009, he referred to a printout from the GNIB (Garda National Immigration Bureau) which he obtained as part of a file released under FOI, and which contains an entry reading "Register by Date 11/07/2003". He argued that this date, i.e. 11 July 2003, was the last date when his permission [to remain in the State] had been indefinitely renewed. In support of his argument that he had the permission to remain indefinitely in the State he also attached a copy of a page from his passport which contained a stamp dated 11 July 2003.

The stamp in question, described by the Department as a Stamp 1, permits the passport holder to remain in Ireland on certain conditions and providing that s/he does not remain later than a date which must be entered manually. A second date, presumably the date upon which the stamp is placed in the passport, must also be entered manually. In the applicant's case, no "later than" date has been entered, but the stamp is dated 11 July 2003.

The Department explained that all non EEA nationals in the State require the permission of the Minister to enter the State and that this is achieved for visitors when they get a "landing stamp" at the port of entry. If a non EEA national is coming to the State to stay for longer than 90 days, e.g as a worker, they will get a landing stamp and if they have evidence to support their purpose, they will be instructed to attend at their local immigration office to get further permission and to register with the GNIB. The further permissions are stamps in the passport. The Department explained that it does not have a full copy of the applicant's passport so it cannot be certain of what was endorsed in it but according to a Garda report dated 22 September 2006 ( a copy of which was released to the applicant on foot of a previous FOI request), the applicant was granted entry permission on arrival at Dublin Airport on 11 June 2003 to 11 July 2003. The report indicates that Stamp 1 employment permission was granted on 2 July 2003 at [...] Garda Station, [...] to 13 May 2004 based on Work Permit No. [...]. Stamp 4 permission was granted on 23 July 2004 at [ ...] Garda Station to 20 June 2006 based on Working Visa in the applicant's passport. I note that there is a copy of a page in the applicant's passport which shows a "working visa" dated 20 June 2004 which authorises the applicant to work in the State in the skills category ICT Professional for two years.

In response to the applicant's argument that his permission to remain in the State had been indefinitely renewed arising from the Stamp 1 in his passport dated 11 July 2003, the Department stated that permission is never indefinitely renewed. It stated that permission is always subject to an end date - either a specific number of years or to the end of the passport - but never indefinitely. The applicant has argued that this is not so and has referred to information regarding "without condition endorsement" and "without condition as to time endorsement" on the website of the INIS. I note that information on the INIS website refers to 'Without Condition Endorsement (Stamp 6)' which it states is given to persons with dual citizenship - Irish and another. The website also states that "Without Condition As To Time (WCATT) Stamp 5 is placed in the passport of an individual who has completed 8 years (96 months) of legal residency in Ireland" - it states that the stamp is valid to the expiry of the passport in which it is placed. The applicant has not shown that the circumstances in which a Stamp 5 or 6 is given apply in his case. The stamp dated 11 July 2003 appearing on the copy of the page of the applicant's passport is a Stamp 1, according to the explanations provided by the Department.

When queried by Ms Connolly, the Department informed this Office that the Stamp 1 dated 11 July 2003 appears to be erroneously missing an end date. The Department stated that the registration on the GNIB system (GNIB-IS) would say when the permission expired. It stated that the decision maker did not have a copy of a full printout of the GNIB-IS but it referred to the Garda report, the relevant details of which I have outlined above. It stated that a Stamp 1 worker will be registered for as long as the work permit is valid, usually on a yearly basis. The Garda report indicated that the Stamp 1 was granted to 13 May 2004. According to the Department, the fact that this was not marked on the Stamp on the passport is clearly a clerical error. It is clear from the applicant's letter of 25 July 2013 that he does not accept the Department's suggestion that the missing end date was a clerical error. I note, however, that the Stamp appearing on the copy of the page of the passport provided by the applicant reads "... and does not remain later than ______________". The Stamp in question clearly envisages that an end date would be inserted. The Department further stated that if the applicant's permission had not expired there would have been no reason for him to have gotten a further stamp which he did when he got his stamp 4 for two years on 23 July 2004.

It was drawn to the applicant's attention that it appeared that a Working Visa was granted after 11 July 2003. In his letter and email of 25 July 2013 the applicant argued that he needed that visa in order to leave and enter the country as a border control document. He stated that the visa clarifies the conditions of his employment in addition to the stamp of 11 July 2003. He stated that the duration of his Working Visa was 2 years, but it was just a border control document and a work permit. He argued that the permission to remain was given by the then Minister for Justice, Equality and Law Reform. The Department stated that in the 'working visa' scheme which ran between 2000 and 2006 a person could apply for a visa and work permit in the same document. It stated that this 'working visa' was issued to the person and it served two purposes i.e. entry visa and work permit. The person would also have had to register with the GNIB. The Department stated that according to the Garda report, the applicant was registered on a stamp up to 20 June 2006. I note that the Working Visa on the copy of the applicant's passport states that it is for two years "from the date below", which date appears as 20/6/04.

In essence, it seems to me that the applicant's arguments for suggesting that the phrases at issue are incorrect is based on an argument that he was granted indefinite permission to remain in the State having regard to the Stamp 1 in his passport, dated 11 July 2003. On the other hand, the Department has explained that the absence of a "later than" date is simply an error and that permission to remain in the State is never indefinitely renewed. It also refers to the information contained in the Garda report of 22 September 2006 which indicates that a Stamp 4 permission was granted on 23 July 2004 at [ ... ] Garda Station to 20 June 2006 based on Working Visa in the applicant's passport. The applicant has not suggested that no such permission was granted. Rather he relies on the fact that the Stamp 1 dated 11 July 2003 had no end date in asserting that the phrases at issue are incorrect. Having carefully considered the matter, I accept that the absence of an end date from the stamp in question does not mean that indefinite permission to remain in the State was granted. Accordingly, I find that the arguments and statements made and information provided by the applicant are not sufficient to show that, on the balance of probabilities, the personal information in the second and third phrases is incomplete, incorrect or misleading.

I have considered the various other arguments made and information provided by the applicant, including his statements with regard to letters written to the Department by the Gardaí, the possibility that in his view a record containing the phrases at issue may be forgery and his other arguments and statements. In my view, they do not provide a basis for this Office to find that the information which is the subject of this application is, on the balance of probabilities, incomplete, incorrect, or misleading. Accordingly, I find that amendment of the record is not required under section 17 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in this case.

Right of Appeal

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 an 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.

Stephen Rafferty
Senior Investigator