Case number: 100210

Case 100210

The Senior Investigator found no basis for directing the HSE to delete the records pursuant to section 17 of the FOI Act. She affirmed the decision of the HSE accordingly.

Case Summary

Whether the HSE is justified in its decision under section 17 of the FOI Act to refuse an application to delete the entire file record held by the HSE relating to personal information of the Applicants' son.

Date of Decision: 25.11.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

On 26 May 2010 and 8 June 2010, the Applicants applied to the HSE, under section 17 of the FOI Act, to have "the overall file record expunged" on the social work file of their son. The records concern an alleged incident that took place between the Applicants' son and another boy both aged X years. The Applicants contend that a report of a meeting with a social worker on 12 March 2010 differs from their view of the meeting. They further contend that the report is not complete as it does not contain dates or times of the incident, names of any persons who were present or provide the word for word allegation against their son. The Applicants claim that the file record is inaccurate, incomplete and misleading. They enclosed a statement of their position and a copy of a letter from a school principal. In its decision of 25 June 2010, the HSE refused the request to delete the file record. It said that due to the nature of child protection work, all allegations against children are retained. However, it agreed to attach the Applicants' account of the meeting with the social worker and related matters to the file. Following the Applicants' application for internal review, the decision was upheld in the internal reviewer's decision of 31 August 2010.

The Applicants' solicitor wrote to this Office on 1 September 2010 seeking a review of the HSE decision. I note that Ms Alison McCulloch, Investigator in this Office, wrote to the Applicants on 2 November 2010 setting out her preliminary views on the matter and that the solicitor responded on 12 November 2010.

In conducting this review, I have had regard to the submissions of the Applicants (including those made to the HSE) as well as the decisions of the HSE. I have also carefully examined the records provided to this Office by the HSE for the purposes of this review.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, (authorised by the Information Commissioner to conduct this review)

Scope of Review

This review is concerned solely with the question of whether the HSE is justified in its decision under section 17 of the FOI Acts to refuse a request to delete records relating to personal information of the Applicants' son.

Submissions

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Findings

Analysis and Findings

Section 17

Section 17(1) of the FOI Act deals with the amendment of personal information relating to a requester. It provides:

"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, in writing or in such other form as may be determined, 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."

Regulations made under section 17(6) of the FOI Act [S.I. No. 265 of 2003] provide for an application in respect of incomplete, incorrect or misleading information by a parent or guardian of a minor to whom personal information in a record relates. On this basis, the applicants are entitled to seek the amendment of personal records relating to their son. However, it seems to me that there is no explicit provision in the FOI Acts for the applicants to have the personal information of other identifiable individuals amended.

I am satisfied that some of the information in the records relates solely to the personal information of the Applicants and their son and that, accordingly, section 17 of the FOI Act may be invoked in relation to this personal information.

Ms McCulloch drew the attention of the Applicants to the Information Commissioner's views on deleting a record in accordance with Section 17. While it is possible under the FOI Act that records or part of a record may be deleted, the test to be met to warrant such action is stringent. In Case No. 98158, (Mrs ABZ & the Office of the Revenue Commissioners),available on www.oic.gov.ie. the previous Commissioner found that the "onus of proof in such cases lies with the Applicant as the party asserting that the information is incomplete, incorrect or misleading" and that the standard of proof in such cases is that of "the balance of probabilities". He also found in that case that "deletion of information from a record...is not something to be taken lightly, given its implications for the evidentiary value of the record concerned" and that it would appear 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". While the Applicants argue that this case is a totally different type of situation to that at issue here, I consider that the decision provides valuable guidelines on the application of section 17 and I adopt those views in considering the application under review.

The meaning of "incomplete, incorrect or misleading"

The Oxford English Dictionary defines "incomplete" as "not complete; not fully formed, made, or done; not whole, entire, or thorough; wanting some part; unfinished, imperfect, defective". It defines "complete" as "having all its parts or members; comprising the full number or amount; embracing all the requisite items, details, topics, etc.; entire, full". It defines the term "incorrect" as "not in accordance with fact; erroneous, inaccurate". It defines the term "correct" as "in accordance with fact, truth, or reason; free from error; exact, true, accurate; right." It defines the term "misleading" as "that leads astray or causes to err." Clearly there is an element of overlap between the three terms in the sense that information which is incomplete or incorrect may also have the propensity to mislead.

In the decision in Case No. 98158 referred to above, the previous Information Commissioner said -

"Care is needed in applying the above definitions in the context of section 17. For example, it should be noted that it is the information rather than the record which must be incomplete, before the right of amendment may be exercised. 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. It seems to me that the word incomplete in section 17 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."

The file records at issue were created between 15 February 2010 and 22 April 2010 and include a completed form ''Reports of Child Protection and Welfare Concerns to Southern Health Board Social Work Departments'', a report of an interview with the Applicants and various administrative records. As detailed above, the records concern an alleged incident that took place between the applicants' son and another boy both aged x years. The applicants contend that a report of a meeting with a social worker on 12 March 2010 differs from their view of the meeting. They further claim that the records are not complete and should be deleted as they do not contain dates or times of the incident, names of any persons who were present or provide the word for word allegation against their son.

While there are some differences between the Applicants' account of what happened and the social worker's summary of events, this does not necessarily render the report incomplete, incorrect or misleading. This is not a case where the HSE has expressed an opinion, made a referral to the Gardai or made any finding based on misunderstanding or misrepresentation of the facts. For instance, an opinion might be shown to be flawed because 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. None of these circumstances apply here. Accordingly, it seems to me that the 'natural justice' arguments made by the applicants are not borne out by the circumstances of the records' creation and their content in this case.

While the records may not contain the information which, in the Applicants' view, they should contain, this does not take away from the fact that the information that is contained in the records was collected for the purposes of the protection of children. The Applicants do not suggest amending the records to correct existing information or include additional information but instead contend that the records should be deleted in their entirety.

I am not satisfied that it is appropriate to direct that the records should be deleted on the basis that they do not contain information that in the applicants' view should be included. As mentioned above, regard has to be had to the purpose for which the information is held. According to the HSE, these records are held for the purpose of child protection work and it has a policy to retain all records concerning allegations against children. The Applicants' solicitor claims that the records at issue could have a serious potentially adverse effect on the future career prospects of the Applicants' son in that the HSE records ''may be looked at" in applications for his future career. It seems to me that it is unlikely that any future employer would have a reason or a right to apply for access these records, or indeed have confirmation that they exist and be granted access to them. In all cases where a section 17 application (claiming that a record containing personal information is incomplete, incorrect or misleading) is refused, the FOI Act requires the public body to attach to the file concerned a copy of the application for amendment which will contain the details and contentions put forward by the applicant. This in itself is significant as it alerts all future users of that file that aspects of its contents are in dispute and future users will have access to the views of the Applicants. This requirement under the FOI Act ensures that any future reader of the file will be in a position to read the records created by the HSE, along with the requester's own comments as to the accuracy of these records, and in this way come to a reasonable conclusion using his or her own judgement on the matter.

The communications of the Applicants' solicitors with the HSE and their application to this Office have provided me with a clear indication as to the strength of their feelings on the information contained in the records on the file. I note in particular the concerns that the Applicants have in relation to any future use of the information. The FOI Act provides that, in dealing with a request for records, a decision maker must not have regard to the motivation of the requester in seeking those records. In the case of a person seeking the amendment of personal information in a record, in accordance with section 17 of the FOI Act, there is no explicit prohibition on having regard to the motivation of the Applicant. However, I take the view that the motivation of a section 17 Applicant is not a matter to be taken into account in dealing with such an application. A decision as to whether information is incomplete, incorrect or misleading is an objective exercise. The fact that the existence on record of certain personal information may have certain consequences is a separate matter and not one which should influence the decision as to whether that information is incomplete, incorrect or misleading. On the other hand, where personal information in a record is found to be incomplete, incorrect or misleading and where the continued existence of the record may have certain consequences (for example, may cause harm), this is a consideration in deciding which of the three forms of amendment of the information should be adopted.

Even if I was to be satisfied that the Applicants had discharged the burden of proof and established that the records are incomplete, incorrect or misleading, I am unable to identify anything in the submissions which convince me that the actual or potential adverse effect on the Applicants' son is so significant that the file record should be deleted. I am mindful that the consequence of deletion would be that the HSE would hold no record of the child protection process which the parties engaged in following the bringing of the incident to its attention. Clearly, having investigated the concerns raised, the HSE was obliged to keep a record of what transpired when it discussed the matter with the parties involved. In circumstances where the Applicants' statement and application under section 17 will be appended to the records, I do not accept their contention that the rules of fair procedure require that I direct that the entire file record be deleted.

In all the circumstances, I find that the HSE is justified in its decision to refuse the request to delete the entire file record 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 HSE under section 17 of the FOI Act.

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.

Elizabeth Dolan

Senior Investigator

25 November 2010