Cinneadh
Mr. Y and Standards in Public Office Commission
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148701-W8D4Z7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148701-W8D4Z7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
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
8 July 2025
In an application 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. 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. He stated the following:
1. “I request that the report be amended to include a statement that there was no evidence to show that I had sought or accepted “any remuneration, fee, reward or other favour for anything done or not done by virtue of my employment or office” or that I had contravened Section 170 of the Local Government Act 2001. I also request that the references in [the Inquiry Officer’s] report that refer to possible contraventions /breaches of Section 170 be deleted or amended.
2. I request that Section 12.1 of the Preliminary Inquiry Report be altered to accurately and correctly reflect that there was not prima facie evidence that I had contravened Section 170 of the Local Government Act 2001.”
On 26 January 2024, this Office annulled the decision of the Commission to refuse 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 Investigator found that the information at issue was personal information for the purposes of the FOI Act and directed the Commission to make a fresh decision on the application for amendment. Case OIC-142376 refers.
On 8 March 2024, the Commission issued a new decision in which it refused the application for amendment. In summary, the Commission said that the applicant was seeking to amend the views or opinions of an Inquiry Officer, which were included in the report in accordance with section 6(3) of the Standards in Public Office Act 2001 and that the purpose of section 9 of the FOI Act was not to alter the opinions of an officer in a public body carrying out a statutory function. It said that to amend the record, as requested by the applicant, would constitute a collateral attack on the subsequent investigation under the Ethics in Public Office Act 1995 and that it was not the purpose of section 9 to contest the decision of a public body. It said that concerns about the opinions or decisions of a body should be pursued through the appropriate legal channels.
The applicant sought an internal review of this decision on 25 March 2024. Among other things, he said that he had not sought to contest a decision of the Commission and that there was no evidence that he had done so. He said that he was simply exercising his statutory right under the FOI Act to amend personal records about him that are clearly incorrect and misleading. On 15 April 2024, the Commission affirmed the decision to refuse the application for amendment. It said that section 9 of the FOI Act requires that an applicant seeking amendment of a record should show, firstly, that the information concerned constitutes personal information and, secondly, that the information is incomplete, incorrect or misleading. It said that it was not of the opinion that these requirements were satisfied. It concluded that its original decision was correct and that the underlying intention of section 9 was not to permit the amendment of such records held as part of an investigation process.
On 2 May 2024, the applicant applied to this Office for a review of the Commission’s decision. Following receipt of submissions from the Commission, a summary of the key points was sent to the applicant, and he was invited to comment or to make further submissions, which he did. Following further engagements with the Commission, the applicant was again notified of issues arising and invited to comment, which he did.
In the circumstances of this case, on 15 April 2025 I considered it appropriate to issue a draft of this decision to the parties prior to concluding matters. The applicant and the Commission were informed that it was open to them to make a further submission on foot of my draft decision, but that any such submission should be confined to an additional point of fact, an error of fact or an error of law. The applicant queried the issuing of a draft decision and sought further details as to the basis for this. The Investigator advised that I had opted to issue a draft decision in this case due to the complex and contentious nature of the issues arising. The applicant’s solicitors made a detailed submission in response to the draft decision. The Commission provided a brief response. References to communications with the applicant in this decision include references to communications with his solicitors, as appropriate.
Paragraph 9 of the Second Schedule of the FOI Act provides that the Information Commissioner may delegate to a member of his staff certain of his functions. I confirm that the Commissioner has delegated to me the functions assigned to him by section 22 of the Act. 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 applicant and by the Commission, and to the correspondence between the parties and with this Office as set out above. I have also examined the record at issue and taken into account the additional submissions made in response to the draft decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Commission was justified in refusing to grant an application to amend, under section 9 of the FOI Act, certain personal information relating to the applicant contained within the Report.
Before I set out my analysis and findings, there are a number of procedural matters I wish to address.
During the review, the applicant requested that the Commission’s submissions be provided to him in full. He also submitted a list of questions to the Investigator about points he had made in earlier submissions, seeking confirmation as to what had been put to the Commission in the course of the investigation. In response, the Investigator stated that it was not normally the practice of this Office to exchange submissions between parties to a review. She said that, instead, care is taken to ensure that the parties are notified of all material issues for consideration. She did not engage further on the questions raised by the applicant. Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case. In all cases, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. The Court of Appeal has previously affirmed the fairness of our procedures in the context of our treatment of submissions inGrange v Information Commissioner [2022] IECA 15.
While I was satisfied that the procedures followed were fair to both parties, and that the applicant was on notice of all material issues of relevance to the review, as noted above I took the additional step in this case of issuing a draft decision to the parties The applicant sought an explanation as to why I opted to issue a draft decision and submitted that not giving further reasons for this, beyond my view that it was necessary due to the complex and contentious issues arising in this case, was tantamount to refusing to provide sufficient reasons for an administrative decision which is incompatible with generally accepted precepts of fair procedures under administrative law and the Constitution. I do not accept this. As already stated above, section 45(6) provides the discretion for this Office to adopt procedures as appropriate to the circumstances of a case and it is in this context that draft decisions are issued in certain cases. I do not accept that this is an administrative decision as characterised by the applicant. Instead, it seems to me that the administrative decision is the substantive decision on the review of the Commission’s decision on his application for amendment under section 9 of the FOI Act, and the applicant has been given an additional opportunity to respond to a draft of this decision, and to identify any errors of fact or law he sees arising. I am satisfied that the applicant has not been prejudiced by a lack of fair procedures by the issuing of a draft decision. Indeed, I consider the opposite to be the case. The issuing of a draft decision ensured that both parties were on notice of all material matters this Office considered to be relevant to the review and they were afforded a further opportunity to make submissions.
In his submissions in response to the draft decision, the applicant also said that it was not apparent whether or to what extent the relevant part of the transcript from the Commission’s hearing had been put to the Commission in the course of this review and whether or not it provided a response. He said that this was a procedural failure and represented an error of law. As noted already, it is not generally the practice of this Office to exchange submissions between the parties. The process of investigation is an inquisitorial one. It is a matter for this Office to consider all the evidence submitted by the parties and to determine the materiality of that evidence, and to then form conclusions and make findings based on an analysis of that evidence. I am satisfied that the arguments made by the applicant in respect of the Commission’s hearing, as evidence in support of his position that the information at issue in the Report should be amended pursuant to section 9 of the FOI Act, were taken into consideration in this review and indeed were reflected in the draft decision that issued to the parties and on which the parties were afforded an opportunity to comment. In these circumstances, I do not accept that this is a relevant material issue that was not before the parties.
Also in his submissions following the issuing of the draft decision, the applicant noted that the Commission’s Inquiry Officer who drafted the report at issue in this case is now employed in the Office of the Information Commissioner. He submitted that “this has the propensity to give rise to a reasonable suspicion of bias in the decision-making of the OIC in this particular matter”. He requested that the matter be referred to a third-party mediator or third-party investigator. The Office of the Ombudsman incorporates seven statutory functions, including the Office of the Information Commissioner and the Standards in Public Office Commission, underpinned by a shared ‘corporate spine’ (ICT, HR, finances, legal services etc). Staff occasionally move across offices, but decision-making within each statutory office remains independent and care is taken in the assigning of work to avoid potential conflicts. In this instance, the Commission’s Inquiry Officer is indeed currently an Investigator in the Office of the Information Commissioner. However, I confirm that she was not involved in this review in any way. Similarly, the Legal Services Unit had no involvement in this review. For completeness, I also note that the Information Commissioner is a member of the Standards in Public Office Commission, and I confirm that I have conducted the review and made the decision on it with no involvement by, or consultation with, the Commissioner. Indeed, if I was to accept the applicant’s argument as to the need for a third party, it seems to me that I would have to do so in each review involving any of the other Offices incorporated within the Office of the Ombudsman. It seems to me that had the Oireachtas considered that the involvement of this Office in reviews concerning any of those other Offices might give rise to a potential conflict of interest or bias, it would have been a straightforward matter to provide for an alternative review mechanism within the FOI Act itself. I am satisfied that this review has been carried out independently and that the question of whether there might be a need to refer the matter to a third party does not arise.
In earlier submissions, the applicant had also set out a number of criticisms of the Commission and its handling of his FOI request. He said that he believed that it had placed obstacles in his path to prevent it having to amend incorrect statements about him or to provide reasons why it made such statements. He disputed that the decision under review in this case was a “fresh decision” saying that it was a rehash of reasons previously used to refuse his section 9 application. He questioned whether the decision-makers involved were impartial and non-biased, having previously been involved in the earlier decision on his application for amendment of records. He also alleged that an error in relation to the payment of fees for an internal review was an attempt to obstruct his right to make a section 9 application.
It is important to note that this Office has no remit to investigate complaints or to adjudicate on how FOI bodies perform their functions generally. Under section 44 of the Act, the Commissioner has the discretion to carry out an investigation at any time into the practices and procedures adopted by FOI bodies generally or any particular FOI body or FOI bodies for the purposes of compliance with the provisions of the FOI Act generally, or any particular provisions of the Act. He can also carry out an investigation into the practices and procedures adopted by FOI bodies or any particular FOI body or FOI bodies for the purposes of enabling persons to exercise the rights conferred by the Act and facilitating such exercise. However, this review has been carried out in an accordance with section 22 of the Act and is confined to a review of the decision taken by the Commission on the application for amendment. It is a matter for the FOI body itself to decide which of its staff members are best placed to process FOI requests. Indeed, it is often the case that FOI bodies appoint decision makers who are most familiar with the subject matter of the request as they are often best placed to make determinations on the release of relevant records or the amendment of relevant records. This Office has no role in considering the appropriateness or otherwise of specific decision makers having been involved in the processing of the applicant’s section 9 application. As regards the issue with the payment of fees for the internal review, while regrettable, there is nothing to suggest to me that this was anything other than an administrative error.
Finally, the applicant in his submissions made reference to the GDPR and the right under that Regulation to have inaccurate personal data rectified. This review is concerned only with the application for amendment under section 9 of the FOI Act, and not the GDPR which is an entirely separate regime.
Section 9 of the FOI Act provides for the amendment of personal information in records held by FOI bodies that is incomplete, incorrect or misleading. An applicant seeking to exercise the right of amendment under section 9 must show that (i) the information which is the subject of the application is personal information, and (ii) the information is incomplete, incorrect or misleading. The Act is silent on the question of where the onus of proof lies in such 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 considers that the standard of proof required 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 personal information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading.
Where a record contains personal information which is incomplete, incorrect or misleading there are three methods for effecting the amendment provided for by section 9:
(i) by altering the record so as to make the information complete or correct or not misleading, as may be appropriate,
(ii) 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
(iii) by deleting the information from it.
The record at issue is a Preliminary Inquiry Report prepared by an Inquiry Officer, further to a complaint being received by the Commission about the applicant. At part 12.1 of the report, the Inquiry Officer states:
“In my opinion, there is prima facie evidence to sustain the complaint received by the Standards in Public Office Commission from [named third party] that [the applicant] contravened section 4 of the Standards in Public Office Act 2001, part 15 of the Local Government Act 2001 and breached the Code of Conduct for Local Authority Employees.”
The applicant sought the amendment of the Report as follows:
• To include a statement that there was no evidence to show that he had sought or accepted “any remuneration, fee, reward or other favour for anything done or not done by virtue of [his] employment or office” or that he had contravened Section 170 of the Local Government Act 2001.
• That references in the report that refer to possible contraventions/breaches of Section 170 be deleted or amended.
• That Part 12.1 of the Preliminary Inquiry Report be altered to accurately and correctly reflect that there was not prima facie evidence that he had contravened Section 170 of the Local Government Act 2001.
In responding to points made by the Commission in its submissions, the applicant clarified that he was not seeking the amendment/deletion of all references to section 170 in the record, i.e. references to section 170 in the context of describing the complaint made or summarising submissions that the applicant himself made or that were made on his behalf. Rather, it is part 12.1 that he is concerned about and that he wishes to have amended.
In submissions, the applicant also pointed to the reference to section 4 of the Standards in Public Office Act 2001 in part 12.1 of the Preliminary Inquiry Report and requested that the references to possible contraventions of this section be deleted. While I have considered the points put forward by the applicant in respect of section 4 of the Standards in Public Office Act 2001 in the overall context of the application for the amendment of the Report under section 9 of the FOI Act, the specific request for the deletion of the reference to section 4 in part 12.1 of the Report was not included in the original section 9 application to the Commission and therefore falls outside the scope of this review.
Section 22(7) of the FOI Act provides that the Information Commissioner may at any time endeavour to effect a settlement between the parties. During the review, following correspondence with the Investigator, the Commission accepted that the more general reference to ‘part 15 of the Local Government Act 2001’ in part 12.1 rather than specifying the individual sections within part 15, was incomplete and potentially misleading and said that it was prepared to add a statement that would indicate that, taking the analysis and opinion sections of the report together, the opinion of the Inquiry Officer was that she considered that there was prima facie evidence that the requester had contravened section 170 of the Local Government Act 2001 (as well as sections 168 and 169). Given that this is essentially the opposite of what the applicant has sought under his section 9 application, the Investigator did not propose this to the applicant as a potential settlement. For the avoidance of doubt, in response to an update from the Investigator on the status of the case, the applicant said that he wished to categorically state that he did not accept the above position taken by the Commission. He said that he would however “settle for an amendment by way of altering, adding to the record or by deletion such that the incorrect and misleading reference to Section 170 is corrected”. As this is, in effect, a restatement of the request for amendment under section 9 which the Commission has refused, I am satisfied that is a case that is not amenable to settlement.
The applicant made three detailed submissions to this Office (dated 22 May 2024, 13 January 2025 and 18 March 2025), and then a further submission in response to the draft decision (26 May 2025). While I have summarised the key points below, I confirm that I have had regard to the submissions in their entirety, as well as to the points made by the applicant in his original request and application for internal review, and in email correspondence.
The applicant quoted the precise wording of section 170 of the Local Government Act 2001, which is located in part 15 of that Act:
“170. (1) An employee or a member of a local authority or of a committee of a local authority shall not seek, exact or accept from any person, other than from the local authority concerned, any remuneration, fee, reward or other favour for anything done or not done by virtue of his or her employment or office, and a code of conduct under section 169 may include guidance for the purposes of this subsection.”
He said that section 170 clearly relates to how a person uses and abuses their public position to extract personal benefits for themselves, and that it cannot relate to a person addressing damaging incidents of bias by one entity against the organisation that they work for, and the failure by the entity to properly address such complaints. The applicant said that in making the assertion that there was prima facie evidence that he had contravened section 170, the responsibility lay with the Commission, and specifically the Inquiry Officer, to provide the evidential burden of proof setting out what was the “remuneration, fee, reward or other favour” that he had decided to “seek, extract or accept”, and from whom, or the “person”, that he had done so. He said that at no stage in the Preliminary Inquiry Report, or in correspondence relating to the section 9 request, had the Commission provided any evidence in respect of these matters. He said that in the absence of identifying such information, the statements in the record can only be considered incorrect or misleading. He argued that it was illogical that, in respect of the section 9 application, he is expected to rebut a finding that was made without substance or factual basis.
The applicant said that he was informed that the Commission intended to progress the investigation to a hearing, and that he was issued with a Statement of Alleged Contraventions which listed three alleged contraventions, referencing sections 168 and 169 of the Local Government Act only. He said that this Statement contained no reference to an alleged breach of section 170 and no reason was given why not, even though the Preliminary Inquiry Report stated that there was prima facie evidence to support such a breach. He said that the Commission must have come to the realisation that there was, in fact, no evidence to support the complaint that he had breached section 170.
He referred to section 4 of the Standards in Public Office Act 2001 which is also referenced in the complaint and in part 12.1 of the Preliminary Inquiry Report. He said that section 4 is entitled “Complaints to the Commission” and sets out the process of how the Commission deals with complaints received. He said that there are no contraventions included under section 4 and that therefore it was not possible for a person to contravene this legislative provision. He said that the reference to the contravention of section 4 of the Standards in Public Office Act 2001 in part 12.1 of the Preliminary Inquiry Report undermined the credibility of the other assertion that there was prima facie evidence that he had also contravened section 170 of the Local Government Act. Furthermore, he said that the Statement of Alleged Contraventions also omitted any reference to an alleged contravention of section 4 of the Standards in Public Office Act 2001. He said that he believed the incorrect and misleading reference to section 4 in paragraph 12.1 of the Report should also be corrected by amendment. In response to the draft decision, the applicant made further submissions on section 4 of the Standards in Public Office Act 2001. He said that he did not accept the finding in the draft decision that the inclusion of section 4 in part 12.1 of the Report was reflective of the wording of the complaint received, and said that the Inquiry Officer conveyed a “substantive, unsupportable opinion” with respect to a breach of this section. He also submitted that this must be interpreted, either implicitly or explicitly, as a challenge to the competence of the Inquiry Officer.
In response to the Commission’s submission that part 12.1 of the Report comprised an opinion of the Inquiry Officer, based on her analysis of the evidence available and a value judgement as to whether the evidence had reached the threshold to amount to prima facie evidence, the applicant said that the analysis and value judgement was clearly flawed and that the analysis contained in part 11 of the Report does not contain any proper evidence to support a conclusion that he might have contravened section 170 of the Local Government Act. He said that that there is no evidence in the emails referred to in parts 11.57 to 11.59 of the Report that he sought any “remuneration, fee, reward or other favour”. He said that it was abundantly clear that the Inquiry Officer in her opinion given in paragraph 12.1 incorrectly and in a misleading manner simply restates the complainant’s claims without in any proper manner determining if the relevant legislation is being correctly applied or interpreted, and without properly assessing the evidence presented. He said that as this analysis is flawed, it can only be concluded that the opinion expressed by the Inquiry Officer in part 12.1 is, at the very least, on the balance of probabilities, flawed, incorrect and misleading.
The applicant said that he did not dispute the fact that the Commission may decide to accept or reject all or part of the opinion of the Inquiry Officer as expressed in the Preliminary Inquiry Report. However, he said that it was clear that this was not what happened in this instance. He said that the minutes of the relevant meeting of the Commission in which it considered the Report confirm that the Report was accepted in full without amendment. He said that at that point, in accordance with its own procedures, the process then moved to the Legal Services Unit of the secretariat to the Commission who prepared the Statement of Alleged Contraventions. He said that this Statement was prepared without any reference to alleged contraventions of section 4 of the Standards in Public Office Act, or section 170 of the Local Government Act, and that this was done without any referral back to the members of the Commission. He said that the only explanation for this was that the Legal Services Unit must have reached a conclusion that there was an error in the Preliminary Inquiry Report with regard to the conclusion that there wasprima facie evidence to sustain the complaints under section 4 of the Standards in Public Office Act, or section 170 of the Local Government Act. Otherwise, he said, these alleged contraventions, that were approved by the Commission, would have been brought forward to investigation and hearing. He said that while the Legal Services Unit removed any allegations against him of contraventions of section 170 or section 4, these allegations remain on a record held by a public body, indefinitely, and that is why he seeks their amendment.
The applicant referred to another complaint and investigation by the Commission where section 170 was involved, and he pointed to the evidence involved in that case and distinguished it from his own case. He also referred to the transcript of the hearing that was held by the Commission as part of its investigation into the complaints made against the applicant and referred to the questioning of the Commission’s witness in the course of that hearing who confirmed that the applicant had not requested any remuneration, fee or other favours. He said that this evidence, given under oath, completely rebuts the basis upon which the Inquiry Officer could have formed the opinion that there was prima facie evidence that he had contravened section 170 of the Local Government Act.
The applicant referred to the burden of proof in section 9 cases, noting the position of this Office that the onus is on the applicant as the party asserting that the information at issue is incomplete, incorrect or misleading, and that the standard of proof required is on the balance of probabilities. In summarising his position, the applicant said that he was satisfied that he had clearly demonstrated, beyond the balance of probabilities, that the statement in part 12.1 of the Preliminary Inquiry Report was without foundation or substance and was incorrect and misleading. He said that should this Office not accept his position, it would be at odds with the administration of fairness and natural justice, and would raise the burden of proof necessary to demonstrate that a statement made by an FOI body is incorrect or misleading far beyond the standard of the balance of probabilities.
In response to the draft decision, the applicant referred to a review carried out by this Office in 2005 which also looked at an application for amendment of personal information, albeit under section 17 of the FOI Act 1997, which is the equivalent of section 9 of the FOI Act 2014. Case 040143 concerned information contained in a medical certificate certifying the applicant as unable to perform the duties of his employment by reason of permanent infirmity. The Commissioner directed the amendment of that record, by way of adding a statement to it. The applicant drew parallels between his case and case 040143, particularly in relation to taking into account subsequent developments that occurred after the creation of the record in question in determining whether the information contained in the record is incorrect or misleading. He argued that the Inquiry Officer’s opinion with respect to section 170 was incorrect and misleading at the time of its inclusion in the Report, and that it is dangerous to rely on. He said that this danger is further amplified in view of its “targeted exclusion” from the Statement of Alleged Contraventions and evidence adduced at the Commission’s oral hearing. He submitted that a person reading the Report today would draw the conclusion that the applicant had contravened section 170 of the Standards in Public Office Act 2001.
The applicant in his response to the draft decision said that there was a reasonable suspicion of bias with respect to the Commission and the Report due to specific circumstances that he outlined.
Finally, the applicant stated that he took particular exception to some of the wording in the draft decision. He said that it indicated that this Office was adopting a position in relation to the underlying merits of the Inquiry Officer’s opinion, which exceeded the boundaries of the Office’s remit and contradicted other statements in the draft decision about the Office’s role.
The Commission said that the information contained in part 12.1 of the report was the opinion of the Inquiry Officer, comprising an analysis of the evidence available in respect of the alleged contraventions and a value judgement by her as to whether the evidence has reached the threshold required to amount to “prima facie evidence” in relation to the alleged contraventions. It said that that opinion was not incorrect, incomplete or misleading. It said that while only part 12 of the report is entitled “Opinion”, it is clear from the report that the briefly stated opinion in part 12 is based on the “Analysis” in part 11. Accordingly, it said that the “opinion” of the Inquiry Officer, as referenced in section 6(3) of the Standards in Public Office Act 2001, is contained in parts 11 and 12 read together. It said that the “analysis” in part 11 comprises a review of the relevant correspondence at paragraphs 11.13 – 11.25, with the Inquiry Officer expressing an opinion on the effect of that evidence at paragraphs 11.56 to 11.59. It said that paragraph 12.1 then contains an overall summary of the Inquiry Officer’s opinion in respect of all matters analysed in part 11. In its response to the draft decision, the Commission elaborated further on this point, stating that the Report clearly identifies the factual information underlying the Inquiry Officer’s opinion in respect of section 170, such that there is no ‘total inadequacy of factual information’ underpinning the opinion. Specifically, it said that paragraphs 11.13 and 11.16 of the report describe the contents of two specified emails which are then referred to in paragraph 11.57 of the analysis.
In response to the point made by the applicant that the secretariat and Legal Services Unit of the Commission must have realised that there was an error in the Report and “that in fact there was noprima facie evidence to sustain a complaint under Section 170, otherwise this very serious matter would in due course have been carried forward into the Statement of Alleged Contraventions”, the Commission said that this was not an appropriate characterisation, taking into account the specific role of the Inquiry Officer in the process.
It said that the function of the Inquiry Officer is to gather evidence to assist the Commission in its function and, if requested, to give an opinion as to whether the evidence is sufficient to establish aprima facie case, but that this opinion is not binding on the Commission. It said that the Commission’s subsequent decision on matters that were the subject of an inquiry report do not determine the correctness or incorrectness of that inquiry report. Rather, it said that the Commission is the statutory decision-maker whose decisions are given legal effect and that the Inquiry Officer’s report is intended to assist the Commission in that role. It went on to say that if the Commission expressly disagreed with the Inquiry Officer’s opinion, it does not follow that the Inquiry Officer’s opinion was “incorrect” but rather it means that the Commission made a different value judgement about the sufficiency of the evidence.
The Commission said that even if it agrees with the opinion of the Inquiry Officer as to whether there isprima facie evidence to sustain a complaint, it may nonetheless decline to investigate a complaint, or an aspect of a complaint, on a different ground. For example, it said that it might decide that an allegation is not of sufficient gravity to warrant investigation by the Commission (section 4(5) of the Standards in Public Office Act 2001), or it might decide not to investigate on the basis that evidence sufficient to sustain the complaint is not and will not be available (section 23(1C) of the Ethics in Public Office Act 1995). It said that it is for the Commission to decide, in all the circumstances, the scope of the investigation and how it should be conducted. It said that one cannot reach any conclusion about the “correctness” or otherwise of an Inquiry Officer’s opinion on the basis of the subsequent conclusions of the Commission on the same matter.
In response to the applicant’s assertion that it is not possible for a person to contravene section 4 of the Standards in Public Office Act 2001, and that the reference to such a contravention in part 12.1 of the Report undermined the credibility of the rest of the opinion expressed by the Inquiry Officer, the Commission said that the reference to section 4 of the Standards in Public Office Act 2001 is to a “specified act” as defined in that section. It said that a “specified act”, as provided for in section 4(1)(a) is:
“… an act or … an omission after the commencement of section 2 that is, or the circumstances of which are, such as to be inconsistent with the proper performance by the specified person of the functions of the office or position by reference to which he or she is such a person or with the maintenance of confidence in such performance by the general public, and the matter is one of significant public importance…”
The Commission confirmed that the allegation that a “specified act” was done was not included in the statement of alleged contraventions in the ensuing investigation.
The applicant has submitted that in order to make part 12.1 of the Report complete or correct or not misleading, it should be altered or a statement added to the effect that there was no prima facie evidence that he contravened section 170 of the Local Government Act 2001. Given that part 12.1 does not directly reference section 170, but instead makes a broader reference to part 15 of the Local Government Act 2001, his position appears to be that part 12.1 infers that the Inquiry Officer’s opinion was that there was prima facie evidence to sustain the complaint that he contravened section 170 (as well as sections 168 and 169). The Commission confirmed that this is also their interpretation of part 12.1. The question I must consider, therefore, is whether the applicant has shown that the Inquiry Officer’s opinion as contained in part 12.1 is, on the balance of probabilities, incomplete, incorrect or misleading on the basis that there was no prima facie evidence that he had contravened section 170 of the Local Government Act 2001 as part 12.1 infers.
The definition of "personal information" at section 2 of the FOI Act includes "the views or opinions of another person about the individual". Thus, the right of amendment of personal information includes the right of amendment of opinions that are incorrect, incomplete or misleading. The view of this Office, however, is that section 9 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 9 is made. Moreover, while this Office has not previously presented an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading", we would expect an applicant to satisfy us 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.
This Office does not consider 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 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 personal 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 this Office that the record is, in fact, complete, correct and not misleading. It is also worth noting that in all cases where a section 9 application is refused, section 9(4)(a) requires the FOI body to attach to the record concerned a copy of the application for amendment which will contain the details and contentions put forward by the applicant. This in itself is significant as it alerts all future readers of that record that aspects of its contents are in dispute.
In considering whether information is incomplete, incorrect or misleading, evidence of the nature of the information and the purpose for which it is held is relevant. As I understand it, as part of the Commission’s complaints process and as provided for in section 6 of the Standards in Public Office Act 2001, following the receipt of a complaint against the applicant, an Inquiry Officer was appointed to carry out a preliminary inquiry and to prepare a report for the Commission. Specifically, section 6(3) of the Standards in Public Office Act provides:
“Following an inquiry pursuant to subsection (2), the inquiry officer concerned shall prepare a report in writing of the results of the inquiry and shall furnish the report and the statement or statements under subsection (2) and any relevant documents to the Commission; and the report shall not contain any determinations or findings, but shall, if the Commission so requests, include an expression of the opinion of the officer as to whether there is prima facie evidence to sustain the complaint concerned.”
In this instance, the Inquiry Officer carried out this preliminary inquiry and prepared a report which was then provided to the Commission. The Report contains an expression of the opinion of the Inquiry Officer as to whether there wasprima facie evidence to sustain the complaint concerned, and indeed part 12.1 explicitly contains this expression of the opinion of the Inquiry Officer. It is my understanding that aprima facie standard of proof is relatively low.
The applicant has argued that at no point in the Report, or in correspondence with the Commission since, has it been identified what “remuneration, fee, reward or other favour” that he had allegedly sought, extracted or accepted from another person for anything done or not done by virtue of his employment or office, as set out in section 170 of the Local Government Act 2001. Similarly, he said that there is no such information in the emails referenced in parts 11.57 to 11.59 of the Report. Personal information in a record is not incorrect or incomplete merely because the record does not contain all the information which the applicant might like it to contain. This Office takes the view that the word incomplete in section 9 is used in the sense of imperfect or defective or lacking certain requisite items or details. In deciding whether the information can be so described, regard has to be had to the purpose for which the information is held. It can be said to be incomplete if it lacks certain requisite details i.e. details required by the circumstances in which the record is created or required for the uses to which the record is put or which might put a different complexion on the information.
The purpose of the record at issue was to allow the Inquiry Officer to provide the Commission with both the results of the inquiry carried out and her opinion as to whether there wasprima facie evidence to sustain the complaint. The evidence the Inquiry Officer relied upon in forming that opinion is contained in part 11 of the report. It was then a matter for the Commission itself to decide what further action, if any, to take as the statutory decision-maker whose decisions are given legal effect. I am not satisfied that the absence of the information outlined by the applicant means, of itself, that the Inquiry Officer’s opinion is somehow flawed. I would add that it is not the role of this Office to carry out its own analysis of the evidence relied upon by the Inquiry Officer and her understanding of the relevant legislation, and from there to make its own determination as to the correctness or incorrectness of her concluding opinion as to whether or not there was prima facie evidence to sustain the complaint.
It is the applicant’s position that the lack of reference to section 170 in the Statement of Alleged Contraventions is further evidence that the Commission, or the Legal Services Unit acting to provide legal support to the Commission, must have realised that there was an error in the Preliminary Inquiry Report. I am satisfied that the Commission’s subsequent decision on matters that were the subject of an inquiry report do not determine the correctness or incorrectness of that inquiry report. As the Commission explained in its submissions, if the Commission expressly disagreed with the Inquiry Officer’s opinion, it does not follow that the Inquiry Officer’s opinion was “incorrect” but rather it means that the Commission made a different value judgement about the sufficiency of the evidence.
Having considered the matter, and taking into account the investigative process and specifically the role of the preliminary inquiry, I do not accept the applicant’s assertion that the lack of reference to section 170 in the Statement of Alleged Contraventions is evidence that part 12.1 of the Report is incomplete, incorrect or misleading. Rather, it seems to me that the preparation of the Statement of Alleged Contraventions is a separate step in the process, that took place after the Report was prepared, and I do not accept that what it does or does not include can be taken as reflecting a judgment on the correctness or incorrectness of the opinion expressed in the Preliminary Inquiry Report. For completeness, I acknowledge the applicant’s position that the Legal Services Unit drafted the Statement of Alleged Contraventions without further reference to the Commission members. I make no finding on this assertion and simply note that the Report in its entirety was submitted to the Commission for its consideration, and the Commission is the statutory decision-maker whose decisions are given legal effect.
Similarly, the Investigation Hearing is another discrete step in the complaint investigation process and I do not accept that statements made at that hearing can be taken as evidence that the opinion expressed in part 12.1 of the Report is incorrect. I do not dispute that the Commission’s witness stated during the hearing that the applicant had not sought any money, any fee, any personal favours etc. However this was not before the Inquiry Officer at the time she formed the opinion following the preliminary inquiry, and it seems to me that her opinion could only have been formed on the basis of what was available to her at the time.
In relation to the previous case considered by this Office (case 040143), which the applicant drew my attention to, the key issue in that case, as I understand it, was whether an opinion in a medical certificate, namely that the applicant was incapable of performing the duties of his employment by reason of “permanent infirmity”, was flawed because of some particular factor which rendered the opinion dangerous to reply on. The decision clarifies that:
“at the time it was given, this opinion could not have been characterised (at least for the purposes of section 17 of the FOI Act) as being incomplete, incorrect or misleading. The passage of time has shown that Dr. Y's opinion has been overtaken by subsequent developments. However, this has no implications for the opinion as given on 30 June 2000.”
The decision goes on, however, to say that:
“while being clear that I am not taking issue with the certificate in the context in which it was originally signed, I find that it has become misleading in as much as a person reading it today would draw the conclusion that you remain incapable of "performing the duties of [your] office/employment by reason of permanent infirmity ...".
I take this as finding that the nature of the opinion at issue is such that it infers that the opinion remains relevant and has, in essence, ongoing effect and/or relevance, or at least potential ongoing effect and/or relevance, regardless of subsequent developments. In other words, any future reader of the certificate would assume that the applicant remains incapable of working by reason of permanent infirmity. The applicant has argued in his case that the opinion expressed at part 12.1 of the Report is similarly dangerous to rely on, and that this danger is amplified by the exclusion of section 170 from the Statement of Alleged Contraventions and the evidence put forward at the subsequent oral hearing. He said that a person reading the Report today would draw the conclusion that he had contravened section 170 of the Standards in Public Office Act 2001.
Having considered the two cases, aside from the differing factual backgrounds, it seems to me that the opinion at issue in the current case cannot be characterised as an opinion which has an ongoing effect. The opinion is contained in a Report that is labelled a Preliminary Inquiry Report and that was prepared pursuant to section 6(3) of the Standards in Public Office Act which expressly prohibits the inclusion of any inclusions or findings and may only include an expression of the opinion of the officer as to whether there is prima facie evidence to sustain the complaint concerned. I do not accept that a person reading the Report today would draw the conclusion that the applicant had contravened section 170 of the Standards in Public Office Act 2001. Rather, it seems to me that the record has to be considered in the wider context of the Commission’s investigation process as a whole, and I find that a plain reading of the information at issue in the Report indicates that the Investigating Officer formed an opinion that on a preliminary examination of the complaint, there was sufficientprima facie evidence to sustain the complaint and that this was then a matter for the Commission to consider and then to determine what next steps it would, or would not, take. I do not think it can reasonably be interpreted as a finding that the applicant contravened section 170. Accordingly, I do not accept that the opinion is dangerous to rely upon.
The applicant argued that the reference to a contravention of section 4 of the Standards in Public Office Act 2001 in part 12.1 was incorrect and that this undermined the Inquiry Officer’s opinion more generally. He clarified, in response to the draft decision, that it does not appear possible to substantively contravene section 4 of the Standards in Public Office Act 2001 and that this should be considered in the context of the Inquiry Officer’s competence. While it is outside the scope of this review to determine whether the reference to section 4 is incorrect, incomplete or misleading for the purposes of amendment under section 9, I have carefully considered it as a potential factor in determining whether the opinion that is the subject of this review is flawed or otherwise dangerous to rely upon. While I accept that the wording at section 4 is somewhat confusing, having regard to the explanation given by the Commission in respect of this section and how it interprets it, it seems to me that the reference to section 4 in part 12.1 of the Report is reflective of the wording of the complaint received, and reflects the Commission’s position that a reference to section 4 includes a reference to a specified act in that section. I note also that in part 11.63 of the report, the Inquiry Officer refers to a specified act under section 4. I am satisfied that the reference to section 4 in no way supports an argument that the Inquiry Officer was incompetent. I do not accept that the Inquiry Officer’s reference to section 4 of the Standards in Public Office Act 2001 as expressed in part 12.1 of the Report, undermines the opinion at issue, or provides a basis on which to conclude that the overall opinion, including the reference to part 15 of the Local Government Act 2001, was flawed by virtue of incompetence or lack of balance or necessary experience in the person forming the opinion, or any other factor which renders the opinion dangerous to rely upon.
An allegation of bias on behalf of the Commission was raised by the applicant in response to the draft decision, where he referred to a specified staff member of the Commission taking part in an interview with the complainant, a few months prior to the complaint being made. The applicant said that this was dealt with in a ‘cursory fashion’ in the Report, at part 11.53. Having examined the relevant part of the Report, I note that the Inquiry Officer referred to this interview and included a link to a recording of it. She then stated that Inquiry Officers act independently during the course of the inquiry process and provide an independent opinion based on the analysis of the facts. She noted that the staff member who took part in the interview confirmed that at the time of the interview the complainant had not mentioned his intention to make a complaint against the applicant. It is not apparent to me that this interview is evidence of bias on behalf of the Inquiry Officer or that a reasonable person would conclude that there might be bias. If the applicant had broader concerns that the Commission had some kind of bias against him, it seems to me that there were other avenues open to him in the course of the investigation. I am not satisfied that the opinion is flawed because of the existence of bias.
For all of the above reasons, while I acknowledge the applicant’s strongly held belief that the Inquiry Officer was wrong in the opinion that she expressed in the Report, and that he considers this to have been borne out by the subsequent stages in the Commission’s investigation, he has not, in my view, presented evidence to satisfactorily show, on the balance of probabilities, that the opinion was 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.
I find that it has not been established, on the balance of probabilities, that the information that the applicant wishes to have amended in the Preliminary Investigation Report is incorrect, incomplete or misleading. In the draft decision issued to the parties, I stated that I had found the information that the applicant wished to have amended to accurately reflect the opinion reached by an Inquiry Officer carrying out her statutory functions that there was sufficient prima facie evidence to warrant further investigation by the Commission of the complaints made against the applicant, including under section 170 of the Local Government Act. The applicant strongly objected to this form of wording. For the avoidance of doubt, I wish to clarify that this was not intended as a value judgement as to whether or not I agreed with the opinion of the Inquiry Officer. Rather, what I sought to convey here was that the Inquiry Officer had formed an opinion, following a preliminary investigation into the complaints, and that part 12.1 of the Report accurately reflected the opinion that she had formed.
I find, therefore, that the Commission was justified in refusing to amend the record.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Commission’s decision. I find that it was justified in refusing the application for amendment 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.
Stephen Rafferty
Senior Investigator