Cinneadh
Ms. A and The Residential Tenancies Board (RTB)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-157091-B7V1X6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-157091-B7V1X6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the RTB was justified in refusing an application made under section 9 of the FOI Act to amend certain information in an Adjudication Report, a Tenancy Tribunal Report and an email from a then staff member in the RTB
5 December 2025
By way of background, the RTB was established under the Residential Tenancies Act, 2004 as amended (the 2004 Act) to operate a national tenancy registration system and to facilitate the resolution of disputes between landlords and tenants. This service is quasi-judicial and mediators, adjudicators, and tribunal members have independent decision making powers. The first two steps of dispute resolution are self-resolution and mediation. If these options fail to resolve the matter between parties, the next step is adjudication. During the adjudication process each party submits evidence in advance of a hearing being held. Hearings are conducted by an independent adjudicator who reviews the evidence that has been submitted and listens to both sides of the dispute. The adjudicator then issues a determination order, which is legally binding and outlines the decision and any required actions. If either party to the adjudication is unhappy with the outcome they can appeal to a Tenancy Tribunal. A Tenancy Tribunal is a full re-hearing of the facts of the tenancy dispute. Following a Tenancy Tribunal hearing, tribunal members will decide the outcome and submit a report to the RTB which provides an overview of the hearing and evidence given by both sides and the decision reached in the matter by the Tribunal a legally binding determination order will issue to both parties from the RTB which contains the enforceable actions as directed by the Tribunal. The RTB will issue the report and determination order to both parties. Either party can only appeal if they feel the decision is wrong or on a point of law to the High Court within 21 days of the determination order and report being issued.
The background to this review lies in a dispute the applicant had with her then landlord resulting in an application being made to the RTB dispute resolution service. The dispute was referred to an adjudication hearing which took place on 15 February 2022. The adjudication hearing issued its determination which was appealed by the applicant to a Tenancy Tribunal. The Tenancy Tribunal held a hearing on 28 June 2022 and issued its determination by way of a report dated 17 August 2022 and a subsequent determination order was issued by the RTB to both parties on 31 August 2022.
On 18 December 2024, the applicant made an application under section 9 of the Act for the amendment of the Adjudication report, the Tribunal report and an email dated 9 October 2024 the RTB issued to the applicant. In its decision dated 15 January 2025, the RTB refused the application for amendment. It said it could not amend “this document” as it was now an official legal document. It said it could not interfere due to the requirement to be impartial. It said the document was drafted by the tribunal panel members and as it was issued and never challenged in the High Court, it could not be amended. On 24 January 2025, the applicant applied for an internal review of that decision. On 19 February 2025, the RTB affirmed its decision to refuse to amend the Tribunal and Adjudication Reports. It also said it could not locate a copy of the email the applicant wished to have amended. The RTB also said it would attach the request for amendment received to the case file on its dispute management system pursuant to section 9(4) of the FOI Act, which would be retained in accordance with the RTB’s record retention policy.
On 28 February 2025, the applicant applied to this Office for a review of the RTB’s decision. In her application for review, the applicant said the decision does not include any response to the specific points she raised.
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 RTB and the applicant and to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
One of the amendments the applicant sought to the Tribunal report was the addition of the name of the appointed stenographer and reviewer of the report. In correspondence with this Office, the applicant said she is no longer seeking the name of the stenographer to be added to the report. Accordingly, I will give no further consideration to that matter.
This review is concerned with whether the RTB was justified in refusing to carry out the remaining amendments identified by the applicant to the Adjudication report, the Tribunal report and an email dated 9 October 2024.
In her submissions to this Office, the applicant expressed concerns about the manner in which the RTB notified her of its decision and about matters that took place during the adjudication hearing. It is important to note that this Office has no role in examining the administrative actions of FOI bodies in the performance of their functions. Our role in this case is limited to a consideration of the decision taken by the RTB on the application for amendment.
Section 9
Section 9 of the FOI Act provides for the amendment of incomplete, incorrect or misleading personal information in records held by FOI bodies. For the right of amendment under section 9 to exist, the information concerned must be personal information relating to the applicant. Section 2 of the Act defines personal information as information about an identifiable individual that either (a) would ordinarily 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. The definition also details 14 specific categories of information that is personal information without prejudice to the generality of the definition at (a) and (b) above.
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 in the record 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 personal information and that it is, on the balance of probabilities, incomplete, incorrect or misleading.
It should also be noted that section 9(2)(b) requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application”. In requiring an applicant to provide evidence that the information in a record is incomplete, incorrect or misleading, this Office is not making any prior judgement as to the accuracy of the information. 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 information 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, an applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.
It is not the role of this Office to investigate complaints about the manner in which records such as professional reports were created, or to consult with relevant experts in order to make findings on applications for the amendment of such records. The role of this Office does not extend to examining the professional judgment of a body or its staff in the creation of records. Neither is it our role to conduct a comprehensive enquiry as to the accuracy or completeness of records. Rather, as noted above, we must have regard to the evidence actually provided by the applicant, as well as to any rebutting evidence put forward by the FOI body, in order to make a decision on that basis.
It is also important to note that, with certain limited exceptions, in cases where a section 9 application is refused, the FOI Act requires the FOI body to attach to the record concerned the application for amendment, a copy of the application or a note indicating that it has been made. This, in itself, is quite significant as it alerts all future users of the record that aspects of its contents are disputed by the applicant.
The Commissioner considers that the purpose of section 9 is very specific and care must be taken not to allow it become a vehicle for purposes other than those evident from the FOI Act itself. It is outside the remit of the Information Commissioner to adjudicate on how FOI bodies carry out their functions generally. He does not have the authority to investigate complaints against FOI bodies. The Commissioner also takes the view that section 9 does not provide an alternative mechanism for resolving disputes regarding the administrative actions of FOI bodies or an alternative appeal mechanism against determinations by a properly appointed authority. He considers that a determination by a properly appointed authority cannot be deemed to be incomplete, incorrect or misleading if made by a properly appointed and authorised person and in the absence of a successful appeal as provided for by the appropriate legislation.
The email dated 9 October 2024.
As I have outlined above, when processing the application for amendment, the RTB said it could not locate a copy of the email the applicant wished to have amended. During the course of the review, it subsequently located the email. As the RTB did not make a first instance decision on the application for amendment of the email, I do not consider it appropriate to essentially act as first instance decision maker. Instead, I consider that the most appropriate course of action to take is to annul the RTB’s effective refusal to amend the email and to direct it to conduct a fresh decision making process on the application for amendment of that record. If the applicant is not satisfied with the RTB’s fresh decision in this regard, she will have a right to apply for an internal review of that decision and ultimately apply for a fresh review by this Office.
The Tribunal Report
In her application for amendment, the applicant asked the RTB to remove the Tribunal report from its website. She said the record is misleading by omitting the criminal offense of harassment as well as lying under oath. She also sought the following specific amendments:
a) the name of the reviewer of the report to be added to the report,
b) her daughter to be added to the list of attendees, and
c) The deletion of the relevant part of Section 5 of the report under the heading “Appellant Tenant’s Case” and the report to be updated based on the appeal form she sent to the Board.
In her submissions to this Office, the applicant said the contents of the report that ridicule her relate to her and nobody else. She said the RTB transcript and her application for appeal are the best evidence to verify statements expressly attributed to her. She said the report misstates the subject of her case and omits details of an alleged harassment campaign by the letting agent. She provided copies of various documents in support of her application, including a transcript of the hearing of 28 June 2022 and the appeal she submitted to the RTB.
The RTB said it does not have authority to explain or influence the decisions made by panel members. It said the 2004 Act provides that Adjudicators and Tenancy Tribunal members operate independently of the RTB in the performance of their functions. It said the RTB is not permitted to interfere with a decision of a Tenancy Tribunal, even where a party believes the decision is incorrect. It said that once Adjudicators or Tribunal members submit their report—including details such as who was in attendance—the RTB cannot amend or alter the content It said that if any party believes the information in the report is incomplete, inaccurate, or misleading, they have the right to appeal the Adjudicator’s decision to a Tenancy Tribunal, or appeal a Tribunal decision to the High Court.
I should say at the outset that while I fully accept that the Adjudicators and Tribunal members operate independently of the RTB in the performance of their functions, this does not mean that Tribunal reports can never be amended pursuant to section 9. As I have outlined above, this Office accepts that section 9 cannot be used to challenge a determination made by a properly appointed authority, such as the determination of the Tribunal in this case. On the other hand, challenges to the determination aside, I fail to see how an FOI body can appropriately refuse to amend personal information it accepts to be incorrect. The section provides for a right of amendment of incorrect, incomplete, or misleading personal information in any record held by an FOI body. Consider, for example, a Tribunal report where the RTB accepts that it contains factually incorrect personal information, such as an individual’s name or occupation. In such cases, the RTB has no basis for simply arguing that section 9 cannot apply. Nevertheless, in my view the nature of such reports is, indeed, relevant to the question of what form such an amendment might take. The Act provides for three different types of amendment of a record, namely;
(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.
Directing the amendment of, or deletion of information from, the records of an FOI body is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of an FOI body is not something to be decided upon lightly. This Office takes the view that amendment should, as far as possible, not interfere with the historical accuracy of records, with the way the contents of a record serve to establish facts or with the way the contents of a record explain subsequent actions and decisions of public bodies.
On a related matter, while the applicant has requested that the Report at issue be removed from the RTB’s website, this Office has no power to direct it to do so. The FOI Act is silent as to how an amended record should be treated and as to the consequences of the amendment for the rights and liabilities of the applicant. The Commissioner’s remit extends only to deciding whether the personal information is incomplete, incorrect or misleading and to deciding on the form of amendment, where appropriate. He has no role, as Information Commissioner, in determining what further action an FOI body ought to take in the light of an amendment to a record made under section 9. This Office considers that it is a matter for the FOI body to "carry through" the effects of the amendment to any subsequent rights or liabilities. In other words, if the Commissioner determined that information in a record should be deleted, it would be a matter for the RTB to carry through the effects of such a determination.
Turning to the specific amendments sought, it is important to note that the fact that the report itself relates to the applicant is not sufficient for a right of amendment to exist. The information itself must be personal information relating to the applicant. Having considered the matter, I am not satisfied that the omission of the name of the reviewer of the report or the omission of the applicant’s daughter’s name from the list of attendees is personal information relating to the applicant. I note, in any event, the RTB’s submission that it was noted in the case records that during the initial assessment of the applicant’s case, a case officer asked her if there were any other applicants she wanted to add to the case and that her response was “no”. I find that section 9 of the FOI Act does not provide for a right of amendment of that information.
On the other hand, I am satisfied that the description of the applicant’s case at Part 5 of the Report is personal information relating to the applicant. It describes evidence she purportedly gave to the Tribunal in the course of the hearing of her appeal relating to her tenancy and her experiences as a tenant. It essentially describes the applicant’s concerns in respect of the maintenance and state of repair of the property she was renting, her views as to why a notice of termination was served, and the treatment she was allegedly subjected to after the landlord’s agents took over the management of the property.
On the matter of whether the information contained in the relevant section of the report is incomplete, incorrect or misleading, the applicant has not identified any particular information in the section. Instead, her position appears to be that the entire section is incorrect and/or misleading on the basis that it misstates the subject of her case and omits details of an alleged harassment campaign by the letting agent. I have examined the transcript of the Tribunal hearing the applicant provided in support of her application for amendment. It is not at all apparent to me that the section in the report, which essentially summarises the evidence given by the applicant, misstates the subject of her case or that it omits details of the evidence she gave of her engagements with the landlord’s agents. In my view, the section reflects the evidence given as recorded in the transcript. It is important to note that the report does not purport to be a verbatim account of the evidence given. Moreover, the fact that the report may not contain all of the information the applicant might want it to contain does not mean that the information is incomplete or misleading. Having considered the matter, I find that the applicant has not satisfactorily shown that the information in question is incomplete, incorrect, or misleading. I find therefore, that the RTB was justified in refusing to amend any aspect of the Tribunal report.
The Adjudication Report
The applicant sought eight amendments to the Adjudication Report, as follows:
a) The inclusion of her daughter on page 1 and correction of the first half of page 2 by completing with actual events at the hearing 15 February 2022 to include the technical issues experienced.
b) The deletion of the first paragraph under the heading “Submissions-Applicant Tenant” on the adjudication report which the applicant said was falsely attributed to her.
c) The deletion of page 3 of the report as the applicant said it includes a number of false statements attributed to her.
d) The correction of page 4 of the report as the applicant said the first paragraph includes the wrong number of pages and wording. The applicant also said the first sentence belongs to the Summary of reasons on pages 4 and 5.
e) The correction to the statement “the applicant tenant has not discharged the burden of proving on the balance of probabilities that penalisation occurred and her application is not upheld” on page 5 of the report.
f) The correction of the last sentence on page 7 of the report which the applicant described as incorrect and incomplete. She asked that it be amended with complete information about a report from Dublin City Council.
g) The applicant said all 5 points on page 8 of the Adjudication report are grossly misleading due to the falsity of the header statement on page 7.
h) The applicant said all 5 points are incorrect and grossly misleading. The remainder of reasons on page 8 are grossly misleading and incomplete, the acts by the respondent landlord listed by the adjudicator fall under section 14 of the Act and constitute harassment.
In her correspondence with this Office, the applicant said she is requesting to amend the Adjudication report based on “the same proof of verifiable falsity of contents and questionable obstacles RTB faced in communicating their decision by email.” The applicant further said even if this Office concludes that the passages are not her personal information the misuse of her personal data within a public document remains “demonstrably false”, further undermining public trust in the FOI law.
Regarding the amendment sought at paragraph (a) above, I am satisfied that that the omission of the name of the applicant’s daughter is not personal information relating to the applicant. The second part of the amendment sought is, in essence, a request that the report should contain a more complete description of certain events and information. This is also the case with the amendment sought at paragraph (f). As I have outlined above, the fact that a record may not contain all of the information the applicant might want it to contain does not mean that the information is incomplete or misleading. The applicant has not explained how the omission of the complete description means that the information in the report relating to her in incorrect, incomplete or misleading.
Re paragraphs (b) and (c), the applicant’s assertion is that certain statements were falsely attributed to her. However, she has presented no evidence to support that assertion. Re paragraph (d), I find that the information identified is not personal information relating to the applicant. The fact that the sentence identified is not where the applicant wishes it to be in the record does not make it incomplete, incorrect or misleading personal information relating to her. It is contained in the summary of submissions and I fail to see how it can be argued that it should not be contained within that section. The fact that it is not also in included in the summary of reasons does not make it incomplete, incorrect or misleading personal information. Re paragraph (e), is in essence, a challenge to the determination of the adjudicator. I have explained above that section 9 cannot be used to challenge a determination made by a properly appointed authority. Re paragraphs (g) and (h), the information on page 8 comprises findings outlined in a Dublin City Council report and the adjudicator’s findings in respect of the dispute. The applicant has provided no evidence to support a finding that the report findings comprise incomplete, incorrect or misleading personal information, nor do I consider it appropriate to make a finding on the accuracy or otherwise of the Adjudicator’s findings based solely on the applicant’s assertions to the contrary. In summary, I am not satisfied that the applicant has satisfactorily shown that any personal information in the Adjudication report is incomplete, incorrect or misleading. I find, therefore, that the RTB was justified in refusing to amend the record.
Having conducted a review under section 22(2) of the FOI Act, I hereby vary the RTB’s decision. I find that the RTB was justified in refusing to amend the Adjudication report and Tribunal report under section 9 of the FOI Act. I annul its decision to effectively refuse to amend the email of 9 October 2024 and I direct it to undertake a fresh decision on the application for amendment of that record.
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