Whether the HSE was justified in refusing the applicant’s request to amend a report on the basis that certain personal information contained in that report is incomplete, incorrect or misleading within the meaning of section 9 of the FOI Act
9 January 2020
On 10 June 2019, the applicant submitted an application to the HSE under section 9 of the FOI Act for the amendment of an occupational therapy and physiotherapy assessment report relating to his son. He sought the deletion of the entire report and in the alternative, the amendment of three parts of the report that he claimed to be incomplete, incorrect and misleading.
As the HSE failed to issue a decision on the request within the statutory time-frame the applicant sought an internal review of the deemed refusal of his request on 12 July 2019. As the HSE also failed to issue its internal review decision within the statutory time-frame, the applicant sought a review by this Office of the HSE’s deemed refusal of his application for amendment. On 9 September 2019, the HSE wrote to the applicant, informing him that it was refusing his request to amend the record.
On 11 September 2019, the applicant informed this Office that he required a review of the HSE’s refusal to amend two sentences on page 8 of the report. I have now concluded my review of the HSE’s decision. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.
Scope of the Review
This review is concerned solely with whether the HSE was justified in refusing to amend the second and fourth sentences of the final paragraph on page 8 of an occupational therapy and physiotherapy assessment report relating to the applicant’s son.
During the course of the review, the applicant expressed concerns about the manner in which the assessment of his son had been carried out. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Analysis and Findings
Section 9 of the FOI Act provides as follows:
1. Where personal information in a record held by an FOI 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 –
(a) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,
(b) 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
(c) by deleting the information from it.
2. An application under subsection (1) shall, in so far as is practicable—
(a) specify the record concerned and the amendment required, and
(b) include appropriate information in support of the application.
Before I address the specific issues arising in this case, it is important to note that this Office has previously set out its approach to, and interpretation of, section 9 and has established a number of principles, including the following;
• In the absence of any express statement in the FOI Act, this Office considers that the onus of proof in section 9 cases lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading and that the standard of proof required is that of "the balance of probabilities".
• It is not the role of this Office to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, it has regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body, and makes a decision on that basis.
• In requiring the 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.
• 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.
While the report at issue in this case relates to the applicant’s son, I am satisfied that the information contained in the report which the applicant is seeking to amend is personal information relating to him. According to the report, the applicant’s son was referred to a Physiotherapy and Occupational Therapy Services provider for assessment under the Assessment of Need process. The report states that the applicant and his wife completed a number of parent questionnaires during the assessment and that two of the completed questionnaires highlighted significant functional difficulties in areas of motor development. The two sentences at issue are as follows:
• “However, during a follow up phone call with [the applicant] it was reported to us that he was unsure about the information provided in the parent questionnaires.” and
• “[The applicant] also declined to redo these questionnaires under one to one therapist facilitation.”
In relation to the first sentence, the essence of the applicant’s argument is that the sentence wrongly suggests that problems with the questionnaires were reported only during a follow up call after the assessment was completed and that the follow up call was the first time the therapists became aware of such problems.
The assessment was carried out on 16 February 2019. According to the applicant, the follow up call mentioned took place on 25 February 2019. The report at issue is dated 27 February 2019.
The applicant asserted that both he and his wife raised several problems with the questionnaires on the day of the assessment but that the therapists declined to assist them. In support of that assertion, he provided this Office with a copy of an email that one of the therapists sent to the HSE on 26 February 2019, the day before the report was finalised. In that email, the therapist stated the following:
“Considering parents difficulties in filling out these questionnaires on their own before it was advised that the best way to do it again would be in person under [the therapist’s] facilitation for which [the applicant] was not agreeable”.
The applicant argued that this suggested the therapist was previously aware of difficulties before the follow up call. He also provided a copy of a text message he sent to the same therapist on 26 February 2019 in which he asked if it would have been in the best interests of his son for the therapist to provide him and his wife with help in completing the forms when they asked for help on the day of the assessment.
Having considered the sentence at issue, I am not persuaded that it suggests, as asserted by the applicant, that the follow up call was the first time the therapists became aware of problems with the questionnaires. Rather, it simply states that the applicant reported to the therapist, in the follow up call, that he was unsure about the information provided in the parent questionnaires. In any event, even if I was to accept the applicant’s assertion, I am not satisfied that the email or text message provided sufficiently support that assertion.
Both the text message and the email were sent the day after the follow up call. As such, the acknowledgement in the email that the applicant and his wife had difficulties in filling out the questionnaires on their own before is not evidence that such difficulties had been raised during the assessment. I also note from the email that the therapist, when referring to the assessment process, stated that the “Parents discussed together and completed the questionnaires provided” and that the “Parents mentioned that some of the areas in the questionnaire are not relevant for [the applicant’s son] and reported that they had left it blank”. In my view, this is not the same as stating that the applicant and his wife had difficulties with the questionnaires.
Accordingly, I find that the applicant has not shown, on the balance of probabilities, that the sentence at issue is incomplete, incorrect or misleading.
With respect to the second sentence, the applicant argued that it suggests he declined to redo the questionnaires under any circumstances. While he did not dispute that he refused to redo the questionnaires under facilitation by the therapist who had carried out the original assessment, he asserted that he had suggested two alternative mechanisms to redo the questionnaires, both of which were refused, namely the completion of the questionnaires at home and the completion of the questionnaires with a different therapist.
In support of his assertion, the applicant referred to two telephone conversations which took place on 25 February 2019 with the relevant therapist. He contended that it was agreed in the first conversation that blank copies of the questionnaires would be posted to him for completion at home, but that he was subsequently informed, in the second conversation, that this could not take place and the questionnaires were, instead, to be completed with one-to-one therapist facilitation. The applicant contended that he then asked whether he could complete the questionnaires with different therapists to those who were involved in the first instance and that this request was refused.
I am not persuaded that the sentence at issue suggests, as the applicant asserted, that he declined to redo the questionnaires under any circumstances. Instead, it specifically states that he declined to redo the questionnaire under one to one therapist facilitation. The text messages the applicant and the therapist exchanged before the completion of the report indicate that the therapist suggested that the best way of addressing the issue would be for the completion of the forms together in person and that he asked the applicant if he wished to do so. The applicant did not avail of that offer.
While I accept that the sentence at issue does not contain all of the information that the applicant would like to see recorded in the report in relation to those exchanges, the absence of such information does not, in my view, mean that the sentence at issue is incorrect, incomplete or misleading. Accordingly, I find that the applicant has not shown, on the balance of probabilities, that the sentence at issue is incomplete, incorrect or misleading.
In the circumstances and having reviewed all the arguments and supporting documentation provided by the applicant, I am satisfied that the HSE was justified in refusing to grant his section 9 application.
For the sake of completeness, I should add that in such cases where a section 9 application is refused, the FOI Act requires an FOI body to attach to the record concerned the application or a copy of it or, if that is not practicable, a notation indicating that the application has been made. This requirement does not apply in cases where the head concerned is of the opinion that the contents of the application concerned are defamatory or the alternations or additions to the record concerned to which the application relates would be unnecessarily voluminous (section 9(4)(b) refers). In its submissions to this Office, the HSE stated that, as it considers some of the views articulated by the applicant in his letter of 10 June 2019 to be defamatory, a copy of his application has not been attached to the relevant report.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse to grant the applicant's application under section 9 of the FOI Act.
Right of Appeal
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.