Case number: 190104
25 June 2019
On 21 August 2018 the applicant submitted an application to the Hospital under section 9 of the FOI Act to delete all references to a named community service he attended as a child from his file. He argued that he did not believe it was necessary to have these references on record any longer. On 6 September 2018 the Hospital refused the applicant's request stating that the references in question were not incomplete incorrect or misleading. The applicant sought an internal review of that decision on 25 September 2018. On 2 October 2018 the Hospital affirmed its original decision to refuse to amend the records at issue. On 28 February 2019, the applicant sought a review by this Office of the decision of the Hospital.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the Hospital's correspondence with the applicant as outlined above and to communications between this Office and both the Hospital and the applicant on the matter. I have also had regard to the contents of the records at issue.
This review is concerned solely with whether the Hospital was justified in refusing to delete all references to a named community service the applicant attended as a child from his medical file under section 9 of the FOI Act.
Section 9 of the FOI Act provides for the amendment of incomplete, incorrect or misleading personal information in records held by public bodies. In the absence of any express statement regarding the onus of proof, this Office considers that the onus 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 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.
Section 9(2)(b) requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application". This Office does not see its role as being 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 public body, and make a decision on that basis. It is also important to note that where an applicant fails to provide sufficient evidence to enable this Office to conclude that the information in a record is incomplete, incorrect or misleading, the records remain undisturbed, but this does not carry any judgement on the part of this Office that the record is, in fact, complete, correct and not misleading.
The Hospital identified five records as coming with the scope of the applicant's request for amendment which comprise of four letters relating to the treatment of the applicant for ophthalmology services and one record of clinical notes.
In submissions to this Office, the applicant stated that he was a young child when he attended the service and as such he does not consider it necessary to have this information on his file any longer. He stated he considers it misleading as any staff member reading these records may infer that he has a mental health condition which he does not have. He stated there is a stigma relating to attending this specific community service that could harm his work opportunities in the future.
The right of amendment is confined to the amendment of incomplete, incorrect or misleading personal information contained in the record. The question I must answer is whether the applicant has shown, on the balance of probabilities, that the information in the relevant records is incomplete, incorrect, or misleading. I consider that directing the amendment of, or deletion of information from, the records of a public body is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of a public body is not something to be decided upon lightly.
While the applicant may wish for these records to no longer form part of his medical history, he has not produced any evidence to show that the records are incomplete, incorrect, or misleading beyond a mere assertion that an inference could be drawn from his attendance at the service. In the circumstances, I do not consider that the applicant has demonstrated, on the balance of probabilities, that the records are incomplete, incorrect, or misleading. Therefore, I find that the Hospital was justified in refusing to grant the applicant's section 9 application for amendment.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital to refuse to amend the references in questions from the applicant's medical file 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.