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Case 030023. Application under section 17 of the FOI Act for the amendment of a record on the requester's personnel file held by the Department - 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 - section 17(1)(ii).

Case Summary

Facts

The requester applied to the Department for an amendment, in accordance with section 17 of the FOI Act, of a particular record on his Departmental personnel file. In making his application, he submitted to the Department a suggested statement to be added to the record in question (an assessment from 1993). The Department's initial decision was to refuse to amend the record and, in accordance with section 17(4)(a)(i), to attach to the record concerned the application or a copy of it. The internal review decision varied the original decision and decided, in accordance with section 17(1)(ii) of the FOI Act, to add to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading. The requester applied for a review of the Department's decision by the Information Commissioner as he was not satisfied that the statement, now proposed by the Department to be added to the record, represented "a satisfactory response to [ ] application."

Decision

In this case, there is no dispute but that the information in the record does constitute personal information relating to the requester. The Department, following its internal review, accepted that the record is "incomplete, incorrect or misleading" and decided to amend the record by the addition of a particular statement. The only matter for decision in this review is whether the particular statement, decided upon by the Department in its internal review decision constitutes a form of amendment of the record which is in compliance with section 17 of the FOI Act.

The Commissioner took the view that the key issue in this review was whether the statement proposed by the Department adequately identifies the respects in which the personal information in the record is "incomplete, incorrect or misleading". The Commissioner found that whereas it may be helpful to know why the information is "incomplete, incorrect or misleading", it is not the purpose of the section 17 exercise to record these reasons. Rather the purpose of the exercise is to specify in a statement to be added to the record the respects in which the personal information in that record is "incomplete, incorrect or misleading". Only if that statement is found to be less than adequate does it become necessary for the Commissioner to consider what alternative form the statement might take; for example, does the statement proposed by the applicant represent an adequate statement of the respects in which the information is "incomplete, incorrect or misleading"?

The statement proposed by the Department in its internal review decision consists of six separate points. The Commissioner is satisfied that Points 1 - 3 of the Department's statement represent clear-cut and valid expressions of the respects in which the personal information in the record is "incomplete, incorrect or misleading". In the case of the following three points (4 - 6) in the Department's statement, it is less obvious that they are fully relevant or appropriate. These additional points are by way of background explanation of the circumstances which prevailed in the requester's employment at the time of the assessment in 1993. The Commissioner was satisfied, with one qualification, that while the latter three points represent background information, it is nevertheless information which elucidates in an important way the respects in which the personal information relating to the requester is "incomplete, incorrect or misleading". The one qualification relates to the second and third sentences in Point 4. The Commissioner took the view that this material is unnecessary and irrelevant in the context of a work assessment intended to reflect the opinion of the official to whom the requester actually reported at the time.

The Commissioner varied the decision of the Department in this case. She directed that the statement decided upon by the Department, in its internal review decision, be added to the record in question (the assessment from 1993) subject to the qualification that the second and third sentence be deleted from Point 4 of that statement.

Date of Decision: 16.09.2004

Our Reference: 030023

16.09.2004

Mr. X

Dear Mr. X

I refer to your application under the Freedom of Information (FOI) Acts, 1997 & 2003, for a review of the decision of the Department of Health and Children (the Department) on your application for the amendment of a record on your personnel file. I regret the delay which has arisen in dealing with your case.

Background

On 10 April 2002 you applied to the Department for an amendment, in accordance with section 17 of the FOI Act, of a particular record ("the record") on your Departmental personnel file. In making your application, you submitted to the Department a suggested statement to be added to the record in question (an assessment form, dated 3 December 1993, relating to a competition for appointment to posts at Principal Officer level).

The Department's initial decision, on 3 July 2002, was to refuse to amend the record and, in accordance with section 17(4)(a)(i), to attach to the record concerned the application or a copy of it. You sought an internal review of the decision on 17 July 2002. The internal review decision of 22 October 2002 varied the original decision and decided, in accordance with section 17(1)(ii) of the FOI Act, to add to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading. On 16 January 2003 you applied for a review of the Department's decision by this Office as you were not satisfied that the statement, now proposed by the Department to be added to the record, represented "a satisfactory response to my application."

In reviewing this case, I have had regard to the following matters:

• the information contained in the record at issue;
• the Department's conclusions on the matter;
• your application and submissions to this Office (including your detailed submissions following Mr. O'Neill's preliminary views letter of 30 June 2003);
• the correspondence/communications between the parties and this Office, and,
• the provisions of the FOI Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003.

I can assure you that all your submissions to my Office have been fully considered and I have carefully reflected on your submissions dated 15 August 2003, 19 January 2004, 11 May 2004, 8 July 2004 and 10 August 2004. I have also had regard to the record concerned. I also note that the recent suggestions made to you by Mr. Fintan Butler, Senior Investigator, in the context of section 34(7) of the FOI Act, are not acceptable to you. One of Mr. Butler's suggestions was that all of the personal information in the impugned record be deleted - effectively, the destruction of the record - and I note that this option is not acceptable to you.

All references in this letter to particular sections of the FOI Act, unless otherwise stated, refer to the FOI Act, 1997 as amended by the FOI Act, 2003.

Scope of Review

My review is concerned solely with the question of whether the Department was justified, in terms of the provisions of the FOI Act, in its decision to amend the record by the addition of the statements set out in the appendix to its letter to you dated 22 October 2002.

Findings

Preliminary Matters

Section 17 of the FOI Act provides a right of amendment of personal information relating to an individual, contained in a record held by a public body, where the information is "incomplete, incorrect or misleading". In dealing with a section 17 application, and provided it is established that the record in question contains personal information relating to the applicant, there are two separate stages involved. The first stage is a decision as to whether the personal information in the particular record is, in fact, "incomplete, incorrect or misleading". The second stage arises where the personal information has been found to be "incomplete, incorrect or misleading" and concerns the manner in which the amendment of the information is to be effected. Section 17(1) provides for three options in this regard:

1. alteration to the record "so as to make the information complete or correct or not misleading, as may be appropriate";
2. the addition to the record of a statement "specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate";
3. deletion of the information in the record.

In this case, there is no dispute but that the information in the record does constitute personal information relating to you. The Department has now accepted that the record is "incomplete, incorrect or misleading" and has decided to amend the record by the addition of a particular statement. In your application, you sought amendment by way of the addition of a statement to the record. Accordingly, the only matter for decision in this review is whether the particular statement, decided upon by the Department in its internal review decision of 22 October 2002, constitutes a form of amendment of the record which is in compliance with section 17 of the FOI Act.

Department's StatementThe personal information in the record, which it is agreed by the Department to be "incomplete, incorrect or misleading", consists of opinions by a particular Departmental official as to your work capabilities along with an assessment of your suitability for promotion to the grade of Principal Officer. A second more senior official indicates that he agrees with the assessment of the first official. Section 17 is capable of being applied to personal information consisting of opinions about an applicant. This is not in dispute in this particular case. Accordingly, it is not necessary to consider this matter further.

The key issue in this review is whether the statement now proposed by the Department adequately identifies the respects in which the personal information in the record is "incomplete, incorrect or misleading". Whereas it may be helpful to know why the information is "incomplete, incorrect or misleading", it is not the purpose of the section 17 exercise to record these reasons. Rather the purpose of the exercise, in a context in which the second of the three options above is preferred, is to specify in a statement to be added to the record the respects in which the personal information in that record is "incomplete, incorrect or misleading". Only if that statement is found to be less than adequate does it become necessary for me to consider what alternative form the statement might take; for example, does the statement proposed by the applicant represent an adequate statement of the respects in which the information is "incomplete, incorrect or misleading"? I note your own comment, in one of your submissions to my Office, that you are "concerned that the amending text should not be overburdened with material which has no relevance". I agree that this represents the correct approach to implementing section 17.

In my view, the purpose of section 17 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. In particular, it is not the purpose of section 17 to establish what a record might have contained had some error or mistake not occurred; though I accept that some such consideration might arise in the course of a section 17 review. Neither is it the purpose of section 17 to conduct an enquiry into how such a mistake has occurred or to provide redress in the case that any loss has been suffered by virtue of any mistake made. Furthermore, in establishing the respects in which personal information in a record is "incomplete, incorrect or misleading", it should be necessary to enquire into the background to the creation of the record only to the limited extent that this is necessary to establish the nature of the "mistake" perpetrated by the record. The level of detail in your lengthy submissions suggests to me that you may take the view that, in your case, section 17 is capable of providing more than a straightforward statement of the respects in which the personal information in the record is "incomplete, incorrect or misleading".

The statement proposed by the Department in its internal review decision consists of six separate points. The Department's statement, at Points 1 - 3, identifies that the personal information in the record is "incomplete, incorrect or misleading" in the following respects:

1. because the first assessor was not your first supervisor and because you had no reporting relationship at the relevant time with the first assessor;
2. because the first assessor "was not in a position to offer an informed view" on your work performance;
3. because your reporting relationship at the relevant time was with another, more senior, official and that "relationship was not mediated by any other person".

I am satisfied that Points 1 - 3 of the Department's statement represent clear-cut and valid expressions of the respects in which the personal information in the record is "incomplete, incorrect or misleading". In the case of the following three points (4 - 6) in the Department's statement, it is less obvious that they are fully relevant or appropriate. These additional points are by way of background explanation of the circumstances which prevailed in your employment at the time of the assessment in 1993. You have argued in relation to some of these points that their inclusion is "inappropriate". The question for me in this review is whether these additional points, or portions of them, properly belong to a statement of the kind envisaged at section 17(1)(ii).

Having considered these three points carefully, I am satisfied, with one qualification, that while they represent background information, it is nevertheless information which elucidates in an important way the respects in which the personal information relating to you is "incomplete, incorrect or misleading". The one qualification relates to the second and third sentences in Point 4. I take the view that this material is unnecessary and irrelevant in the context of a work assessment intended to reflect the opinion of the official to whom you actually reported at the time.

Overall, and subject to the qualification set out above in the case of Point 4, I am satisfied that the Department's statement represents an adequate expression of the respects in which the personal information in the record is "incomplete, incorrect or misleading". I have considered the points made by you in your assessment of the adequacy of the Department's statement. I note there are additional points you wish to have included as well as some points you wish to have deleted or edited. While I agree with your view in relation to Point 4, I am not satisfied that the further changes you propose are necessary in order to arrive at an adequate statement, in compliance with section 17(1)(ii), of the respects in which the personal information in the record is "incomplete, incorrect or misleading".

Having considered the matter very carefully, I am satisfied (subject to the qualification noted above) that the Department's statement satisfies the requirement of section 17(1)(ii) and I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003, I hereby vary the decision of the Department in this case. I direct that the statement decided upon by the Department, in its internal review decision of 22 October 2002, be added to the record in question (the assessment form dated 3 December 1993) subject to the qualification that the second and third sentence be deleted from Point 4 of that statement. A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner