Case number: 150165
The applicant submitted a request to the Department on 28 January 2015 for the amendment of an internal briefing note that had been created by the Corporate Services Division of the Department relating to his grievance with Teagasc and his related allegations of fraud. He requested that the record be amended to show:
The Department refused the applicant's request on 3 February 2015, on the basis that the amendments sought do not complete or correct his personal information. On 18 February 2015 the applicant requested an internal review of the Department's decision. In its internal review decision dated 27 February 2015, the Department affirmed its original decision to refuse the applicant's request. Nevertheless, the Department went on to provide the name and grade of the author of the record, details of the persons for whom the record was created and the purpose for which it was created.
The applicant sought a review by this Office of the Department's decision on 1 June 2015. In conducting this review, I have had regard to the correspondence between the Department and the applicant as set out above, to the contents of the record at issue, and to the submissions received by this Office from the applicant.
This review is concerned solely with the question of whether the Department was justified in refusing the applicant's request for the specific amendments sought by the applicant of the record at issue.
Section 9 of the FOI Act provides for the amendment of personal information in a record held by a public body where that information is incomplete, incorrect or misleading. The Act is silent on the question of where the onus of proof lies in such cases. The Information Commissioner takes the view that, in the absence of any express statement in the FOI 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. The Commissioner takes the view that the standard of proof required is that of "the balance of probabilities". It follows 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.
In this case, the applicant is seeking the addition of certain information to a record on the ground that the record relates to him. Section 9 does not provides for such amendments. The fact that the record relates to the applicant does not, of itself, mean that a right of amendment of all information contained in the record exists. The right of amendment is confined to the amendment of incomplete, incorrect or misleading personal information contained in the record. The applicant has identified no such information requiring amendment in this case. Accordingly, I find that the Department was justified in refusing the applicant's request for the specific amendments sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse to alter the record under section 9 of the FOI Act.
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 four weeks after notice of the decision was given to the person bringing the appeal.