Case number: OIC-61125-M1K4R4
18 June 2020
The applicant in this case was a member of the Permanent Defence Forces for a number of years in the 1970s. In 2004, he received a copy of records relating to him from the Defence Forces on foot of an FOI request. In 2019, he had a number of telephone conversations with the Defence Forces in connection with the records released to him in 2004. Following those telephone conversations, the Defence Forces wrote to him on 4 July 2019 providing him with information on how to make an application for the amendment of incorrect, incomplete or misleading personal information in a record. The letter explained that the application should be accompanied by appropriate supporting information.
On 25 July 2019, the applicant wrote to the Defence Forces, enclosing records he described as misleading and not correct. He said he did not agree with his classification as a security risk. He asked that the security risk classification be amended on his records. He also said he was not happy with his conduct rating.
In a decision dated 6 August 2019, the Defence Forces refused the application for the amendment of the security risk classification and the amendment of his conduct rating from fair to good on the ground that the applicant had not included appropriate information in support of his application.
The applicant sought an internal review of that decision, following which the Defence Forces affirmed its original decision. On 21 January 2020, the applicant sought a review by this Office of that decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to the correspondence between the Defence Forces and the applicant as outlined above and to correspondence between this Office and both the Defence Forces and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Defence Forces was justified in its decision to refuse the application for amendments sought by the applicant as described above.
Section 9 of the FOI Act provides for a right of amendment of incomplete, incorrect, or misleading personal information in a record held by an FOI body. For the purposes of this review, the following subsections of section 9 are relevant:
Subsection 9(2) provides that an application for amendment “shall, in so far as practicable, (a) specify the record concerned and the amendment required, and (b) include appropriate information in support of the application”.
Subsection (10) provides that an application under section 9 shall be expressed to be such an application and shall contain sufficient particulars in relation to the personal information concerned to enable the record to be identified by the taking of reasonable steps.
Subsection (11) provides that notwithstanding subsection (10), where an FOI body receives either
(a) an application which purports to be an application under this section but which is not in the proper form, or
(b) an application which does not purport to be an application under this section but which applies for the amendment of personal information to which amendment can be effected only by way of an application under this section,
the head shall assist, or offer to assist, the individual in the preparation of an application under this section.
The effect of subsections (2) and (10) is that an application for amendment of records must;
The effect of subsection (11) is that where an application which purports to be an application under section 9 but does not contain sufficient particulars in relation to the personal information concerned to enable the record to be identified by the taking of reasonable steps, the body must assist, or offer to assist, the individual in making an application in the proper form.
In its submissions to this Office, the Defence Forces argued that the applicant did not provide sufficient particulars to identify which record was incomplete, incorrect, or misleading. It said it engaged with the applicant by telephone on a number of occasions and that its letter of 5 July 2019 asked him to specify what record was incomplete, incorrect, or misleading. It said while the applicant enclosed records with his application of 25 July 2019 he did not indicate what specifically was incomplete, incorrect, or misleading but instead stated that he did not agree with the security risk classification.
The Defence Forces argued that non-agreement does not mean that a record is incomplete, incorrect, or misleading and that the applicant did not provide any supporting evidence that any record was incomplete, incorrect, or misleading. It added that even if it had assumed that the applicant was referring to
it had appropriate evidence in support of both the decision that he may be a security risk and the rating of fair. In essence, it argued that even if the applicant had properly identified the records and specific information at issue, he had failed to establish that either the conduct rating or security risk classification was incomplete, incorrect or misleading.
On 3 April 2020, the Investigating Officer wrote to the applicant informing him of the Defence Force’s position as outlined above. Among other things, she asked him to identify the specific record(s) he wished to be amended and the particular personal information at issue. She also asked him to explain why he considered the specific personal information to be incomplete, incorrect or misleading.
In his response, dated 17 April 2020, the applicant provided no further details as to the specific records he wished to be amended. However, he argued that the service he had given to the Defence Forces over the years should be considered as supporting evidence. In relation to his classification as a security risk, he said he had been vetted by An Garda Síochana in 1980/81 and passed as a suitable applicant. On the matter of his conduct rating, he argued that he did not cause any trouble or misconduct to any member of the Defence Forces.
It seems to me that, on balance, the application submitted under section 9 of the Act contains sufficient details for the Defence Forces to have been in a position to identify the specific information the applicant wished to have amended and the records that contain that information. He clarified from the outset that he required the amendment of information that classified him as a security risk and that described his conduct rating as fair. While not all of the records he submitted with his application contained that specific information, this Office had no difficulty in identifying those that did.
Nevertheless, it is also the position of the Defence Forces that the applicant did not include appropriate information in support of his application. I take this to mean that it considered that the applicant had not provided sufficient supporting information to justify the amendments sought.
An applicant seeking amendment of records under section 9 should show, first, that that the information concerned constitutes personal information and, second, that the information is incomplete, incorrect or misleading. The Act is silent on the question of where the onus of proof lies in section 9 cases. This 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 see its 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 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 Commissioner 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, the applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.
On the matter of the applicant’s classification as a security risk, I note that one of the records provided by the applicant, dated 19 April 1982, contains details of the basis upon which the Defence Forces deemed him to be security risk. At no stage during the course of his communications with the Defence Forces or with this Office did he dispute the facts upon which the determination was based. Instead he argued that he had been vetted in 1980/81 and assessed by An Garda Síochána (AGS) as a suitable candidate. While the applicant did not provide specific details of that assessment, presumably it was in respect of his unsuccessful application to re-enlist.
Regardless, the fact that he may have been passed by AGS does not, of itself, mean that the information relating to his classification by the Defence Forces at the time as a security risk, is incomplete, incorrect, or misleading. In summary, while the applicant disagrees with the classification, he has not shown, on the balance of probabilities, that the information is incomplete, incorrect, or misleading. I find, therefore, that the Defence Forces was justified in refusing amend the relevant parts of the records at issue.
On the matter of his conduct rating, the applicant outlined his long standing involvement in the Reserve Defence Forces and provided a sample of achievements and praise he received in his role in both the Reserve Defence Forces and the Permanent Defence Forces as proof of his good conduct. However, this does not alter the fact that at the time of his discharge in 1974, his conduct was rated as fair. In essence, the applicant simply disagrees with the rating awarded.
As I have outlined above, 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, nor would an applicant's assertions alone form sufficient evidence to warrant an amendment, in the absence of supporting evidence. In the circumstances, I find that the applicant has not shown, on the balance of probabilities, that the information relating to his conduct rating is incomplete, incorrect, or misleading. I find, therefore, that the Defence Forces was justified in refusing amend the relevant parts of the records at issue.
Having carried out a review under section 22 of the FOI Act, I hereby affirm the Defence Forces decision to refuse the applicant’s application for amendment of personal information relating to him on the ground that he has not shown, on the balance of probabilities, that the information in question is incomplete, incorrect, or misleading.
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.