Case number: OIC-142376-C2J2K9

Whether the Commission was justified in refusing to grant an application to amend, under section 9 of the FOI Act, certain information contained within a Preliminary Inquiry Report

 

26 January 2024

 

Background

In a request dated 7 July 2023, the applicant sought, under section 9 of the FOI Act, the amendment of statements contained within a Preliminary Inquiry Report (the Report) prepared by an Inquiry Officer, further to the Commission’s receipt of a complaint about the applicant under the Ethics Acts. He said that the statements contained personal information about him that were clearly incorrect and/or misleading, and were not supported by proper evidence or facts. Specifically, he sought amendments to be made in relation to section 170 of the Local Government Act 2001. In a decision dated 3 August 2023, the Commission refused the application on the basis that the information identified by the applicant did not fall within the definition of personal information in the FOI Act. The applicant sought an internal review of this decision on 21 August 2023. On 8 September 2023, the Commission affirmed its decision to refuse the application for amendment. On 18 September 2023, the applicant applied to this Office for a review of the Commission’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Commission and by the applicant. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Commission was justified in its decision to refuse to amend certain information in a Preliminary Inquiry Report on the ground that the information at issue is not personal information for the purposes of the FOI Act.

Analysis and Findings

Section 9 of the FOI Act provides a mechanism for the amendment of records held by FOI bodies which contain personal information. It provides for the amendment of such records where the personal information in the record is incomplete, incorrect or misleading. An applicant seeking to exercise the right of amendment under section 9 must show the Commissioner that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

The Commission refused the application for amendment of the Report on the ground that the information the applicant was seeking to have amended did not constitute personal information within the meaning of the FOI Act. In its submissions, it explained the status of the Report at issue. It said that when the Commission receives a complaint under the Ethics Acts, it can appoint an Inquiry Officer to examine the facts of the complaint and establish whether there is prima facie evidence to sustain it. It said that the Inquiry Officer prepares a Report for the members of the Commission which serves as one of the factors that they use in deciding whether or not to progress the complaint to an investigation hearing. It said that such reports do not contain any determinations or findings, but will, at the Commission’s request, include the Inquiry Officer’s opinion as to whether there is prima facie evidence to sustain the complaint. It noted that such a report is not conclusive and is merely a step in a process. It said that all evidence has not been investigated at this threshold stage and that the determination of the existence of prima facie evidence is an initial first sight or "based on first impression" opinion.

Within this context, the Commission said that the opinions of the Inquiry Officer contained within the Report cannot be considered personal information, as the information relates to the office, position or functions of the applicant in his role as an employee of a specified local authority. It acknowledged that the definition of personal information includes views or opinions of another person about an individual, however it said that it does not include information relating to the office, position or functions about individuals who are directors, staff or officeholders paid out of public funds. It said that “function” is defined in the Interpretation Act 2005 as including a duty, and that section 170 of the Local Government Act 2001 clearly imposes a duty on employees of local authorities not to receive payments or other benefits from third parties. It said that this was a clear imposition of a duty, and thus was a function of the applicant’s employment. As such, it said that it believed that any opinion cited by the Inquiry Officer in relation to any alleged breach of section 170 was not covered by the definition of personal information.

The applicant, however, stated that the Commission reached an incorrect conclusion as to the definition of personal information in respect of his request. He said that the information that he has sought to have amended relates to his performance as a [specified] employee of a local authority and that it was “abundantly clear” that information relating to a person’s performance is explicitly captured within the definition of personal information in the FOI Act under part (v) of section 2 which relates to personnel records of staff members of FOI bodies. He said that the provisions of section 2 of the FOI Act 2014 provide for the protection of personal information about a person and were never intended to be used to refuse the amendment or alteration of incorrect personal information held in a report of an FOI body. He pointed to other decisions of this Office and the approach taken in determining whether something is or is not personal information.

I have carefully examined the Report at issue and note the purpose for which it was drafted, as explained by the Commission. It is not disputed by either party that the Report examined a complaint received from a third party about certain alleged conduct and behaviour of the applicant, an employee of a local authority. The Report concluded that there was prima facie evidence to sustain the complaint. The only question for consideration by this Office is whether the information in the record that the applicant is seeking to have amended is personal information for the purposes of the FOI Act.

Personal information is defined in section 2 of the Act 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 that body as confidential. In addition, it specifies fourteen categories of information, which, without prejudice to the generality of the above definition, constitute personal information including (iii) information relating to the employment or employment history of an individual, (v) information relating to the individual in a record falling within section 11(6)(a), and (xiv) views or opinions of another person about the individual. Section 11(6)(a) is defined as:

“a personnel record, that is to say, a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member”.

Certain information is excluded from the definition of personal information. Paragraph (I) in section 2 of the Act, provides that it does not include:

 “in a case where the individual holds or held—

(A) office as a director of, 

(B) a position as a member of the staff of, or

(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid”

The information contained within the Report concerns a complaint received by the Commission about an identifiable individual (the applicant) and his conduct and behaviour as an employee of a local authority, and sets out the Inquiry Officer’s opinion as to whether or not there is prima facie evidence to sustain the complaint. I am satisfied that the information falls within categories (iii), (v) and (xiv) in the definition of personal information at section 2 of the Act; it relates to his employment, it relates to an evaluation of the performance of his functions as a member of staff of an FOI body, and it contains the opinion of another person about him.

As noted above, paragraph (I) excludes certain information relating to staff members of public bodies from the definition of personal information i.e. the name of the individual, and the office that he or she holds, the functions of that office, the terms on which it is held, and anything recorded by the individual for the purposes of the performance of his or her functions. I do not accept the Commission’s position that the information concerns a function of the applicant’s employment; rather, I find that it concerns serious allegations against him in the context of him performing his functions, rather than for the purposes of performing his functions. I find that paragraph (I) does not apply and that the information at issue is personal information.

I find, therefore, that the Commission was not justified in refusing the applicant’s application under section 9 for the amendment of records on the ground that the information at issue was not personal information. No determination was made by the Commission as to whether or not the applicant had established that the information was, on the balance of probabilities, incomplete, incorrect or misleading and it is not for this Office to act as a first-instance decision maker on this question. In these circumstances, the option available to me is to annul the Commission’s decision and to direct it to make a new decision on the application for amendment, in accordance with the provisions of the FOI Act. The applicant will have a right to internal review, and a review by this Office if he is not satisfied with the new decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Commission’s decision. I find that it was not justified in refusing the application for amendment of records relating to personal information on the grounds that the information at issue does not constitute personal information. I direct it to make a fresh decision on the application. 

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.

 

Emer Butler
Investigator