Case number: 170070
In his FOI application to the Council of 22 November 2016, the applicant sought an amendment of one sentence in a specified email of 13 May 2015 between two Council officials. As there was no decision from the Council, the applicant sought an internal review on 23 December 2016. The Council responded, indicating that the matter had, in its view, already been dealt with, but that if he wished to make a further application in accordance with the criteria which had previously been made available to him, it would be processed. He then made an application for review to this Office. At the request of this Office, the Council issued its effective position on 3 February 2017 in which his application was refused on the basis that sufficient evidence had not been provided. As he was not satisfied with the Council's position, he applied to this Office for a review on 8 February 2017.
In conducting this review, I have had regard to the submissions of the applicant, to the submissions of Council, to the record at issue, and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.
This review is concerned solely with the question of whether the Council was justified in refusing to amend the statement specified by the applicant under section 9 of the FOI Act on the grounds that the applicant has not shown that it is incorrect, incomplete or misleading.
In this case, the applicant is seeking the amendment of one sentence in the specified email, which states: "We have provided all the assistance possible to [the applicant]". The sentence at issue is the first sentence of the email between two council officials, further to a request from the applicant which was addressed to one of these officials. The email goes on to set out certain information regarding the applicant's interaction with the Council with regard to housing matters and homeless services.
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 FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. I am satisfied that the information in the record is personal information about the applicant in the circumstances of this case.
The FOI Act is silent on the question of where the onus of proof lies in cases where the amendment of personal information is sought. 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.
The Commissioner does not see his role, arising from section 9, as being to conduct his own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, he 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 his application, the applicant stated that the sentence is not true. He provided copies of emails from him to the Council which he alleges were not responded to. In his submission to this Office, he provided copies of other correspondence between him and the Council from June and August 2015. As these postdate the email which contains the information to which the section 9 application refers, it is not appropriate to take them into account. He also referred to information from his housing file.
It is clear that the applicant has had prolonged engagement with the Council, with evidence of engagement going back to at least 2007 having been provided. The record at issue and the submissions of the Council indicate extensive and protracted engagement between the applicant and Council officials at public counters, by email and in writing. I am satisfied that the sentence at issue must be considered in the context in which it is written and not taken in isolation. It seems to me that it is reasonable for a Council to put in place procedures and criteria for dealing with its areas of responsibility and to take the view there is some onus on individuals, such as the applicant, to engage with a Council in accordance with these procedures. Their rationale is reflected in the email in which the information the subject of this request appears. It seems to me that the sentence at issue expresses the view of the writer, on behalf of the Council. Where the amendment of an opinion is sought, the Commissioner would expect the applicant to satisfy him 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.
As set out above, the onus of proof is on the applicant and the standard of proof required in such cases is that of the "balance of probabilities". I am also satisfied that it is not appropriate for me to require the Council to provide me with details of all of its interactions with the applicant; neither is it my role to make any determination on the nature of those interactions. Having considered the submissions of both parties, I am satisfied that the applicant has not demonstrated, on the balance of probabilities, that the statement is incomplete, incorrect, or misleading. I find therefore, the Council is justified in refusing the amendment sought.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse the amendment sought under section 9 of the FOI Act.
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.