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Mr X and the Defence Forces (FOI Act 2014)

Case Number: 170140

Whether the Defence Forces was justified in its decision to refuse the applicant's request, under section 9 of the FOI Act, to amend certain personal information in his Army Records

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 23 August 2016, the applicant applied to the Defence Forces for the amendment of a number of records arising from his service with the Defence Forces. The amendments concerned -
- Part 1 - 'Army Pension Board - Specialist's Report' - a request for three amendments [one each at reference points (I), (II) and (V)];
- Part 2 - 'Report for Medical Board' - a request for six amendments [two amendments at paragraph 2, three amendments at paragraph 3, and one amendment at paragraph 4];
- Part 3 - 'Application for Discharge (Long Form)' - a request for 'Part 4' and 'Part 5' to be signed.
The Defence Forces issued an original decision in two stages; on 24 November 2016 and on 22 December 2016. The decision was to refuse the applicant's request concerning all three parts.

Part 1 of the applicant's request ('Army Pension Board - Specialist's Report') was refused on the basis that the records were not held by the Defence Forces. In the decision on part 1, the decision maker referred the applicant to the Department of Defence Pensions Board, and the applicant accepted that he had been informed about part 1 of his request.

In the circumstances of this case, I am satisfied that the applicant was informed by the Defence Forces that part 1 of his request related to a record held by the Army Pensions Board and that he should refer that part to the Department of Defence. Consequently, I consider that part 1 of the applicant's request is not within the scope of this review.

The Defences Forces refused the remaining parts of the request on the basis that the 'Officer Commanding Central Medical Unit' had retired (part 2 refers), and that the 'Office Commanding Records and Management Section in the Western Command' had been disbanded and therefore, no longer existed (part 3 refers). Following the applicant's requests for an internal review, the Defence Forces affirmed its original decision. On 24 March 2017, this Office received an application for review from the applicant.

I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submissions of the applicant and the Defence Forces, and to correspondence between this Office, the applicant and the Defence Forces. I have also had regard to the content of the records and to the provisions of the FOI Act.

Scope of Review

This review is concerned solely with whether the Defence Forces was justified in refusing parts 2 and 3 of the applicant's request to have personal information on his Army Records amended or deleted, on the basis that it is incomplete, incorrect, or misleading, under section 9 of the FOI Act. I note that the applicant's request states that he wants the information to be amended and suggests the wording of the amendments sought.

Analysis and Findings

Section 9 - Amendment of records relating to personal information
Section 9 of the FOI Act provides as follows:

(1) Where personal information in a record held by an FOI body is incomplete, incorrect or misleading, the head of the body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by the individual to whom the information relates, amend the record

(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.

(2) An application under subsection (1) shall, in so far as is practicable --

(a) specify the record concerned and the amendment required, and
(b) include appropriate information in support of the application.

The Commissioner's approach to section 9
The Information Commissioner takes the view that, in the absence of any express statement in the FOI Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading. The Commissioner also considers that the standard of proof required is that of the "balance of probabilities". It follows that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

Section 9(2)(b) requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application". The Commissioner does not see his role as being to conduct his own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, he must have regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body, and make a decision on that basis. The nature and extent of information to be provided to support a claim and whether or not it is capable of being verified, and by what means, will vary on the type of record at issue.

The Commissioner accepts that the right of amendment of personal information includes the right of amendment of opinions that are incorrect, incomplete, or misleading. However, he takes the view that he would not be justified in directing that an FOI body amend its records to substitute a different opinion on the sole basis of contrary statements or opinions - however strongly held - by the person seeking the amendment. Thus, the applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence. While the Commissioner has not presented an exhaustive list of the circumstances in which an opinion might be found to be incomplete, incorrect or misleading, he would, however, expect an applicant to satisfy him 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.

Directing the amendment of information, as required in this case, 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. The Commissioner 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.

Consideration of the applicant's request
The question I must consider in this review is whether the evidence which the applicant has submitted to support his arguments, is sufficient to satisfy me that the information in the records the subject of this review are, on balance, incomplete, incorrect or misleading.

Report for Medical Board
In correspondence to this Office the applicant argues that what was recorded in his 'Report for Medical Board' (Part 2) should be amended to express the opposite of what is stated. For example, where information in the record stated "unsatisfactory", "non-effective", "unreliable", "unable", and "unlikely", the applicant wanted these replaced with "satisfactory", "effective", "reliable", "able" and "likely". The Report is a letter prepared by the applicant's then Officer Commanding on the applicant's "Due extension of service". The applicant stated that the information recorded was incorrect and misleading, and was "unfounded and untrue". He said that he had not had sufficient time to gather his medical reports for the Board. He asked why the Officer Commanding did not review certain records before submitting his report. He argued that the same Officer had signed a report for a service medal only one year previously. The applicant also submitted lists of duties, payslips, personal records, Service Medal and overseas reports.

I do not agree with the position of the Defence forces that the fact that the author of a report has long since retired and, indeed, the particular Command involved disbanded, is, of itself, a reason to refuse a request under section 9. However, I accept that the passage of time and the circumstances may make it more difficult to determine whether information in a record is accurate or complete. I note that the overseas service report related to 1985, while the report for the Medical Board referred to the three years up to 1990.

I am not required to categorically determine the accuracy of the conclusions of either the applicant or his Officer Commanding. This would not be feasible. While the applicant provides what he believes are explanations as to why he considers the conclusion of the report for the Medical Board to be incorrect and misleading, the fact that the official account of the Report may not reflect what the applicant wishes, does not of itself render the record incomplete, incorrect or misleading.

Application for Discharge
The applicant was discharged from the Defence Forces in 1990. However, his discharge form was not signed at part four and part five of that form. In his request to the Defence Forces, the applicant wanted those parts to be signed. The applicant explained to the Investigator that as a result of the unsigned form, he had no proof that he was discharged. In refusing the applicant's request, the Defence Forces stated that the 'Office Commanding Records and Management Section in the Western Command' was disbanded and no longer exists. It further said that the applicant's discharge is not in doubt, although the form was not signed by the relevant Officer in 1990.

The Investigator referred the applicant to a written answer from the Minister for Defence to a Parliamentary question in April 2015. The applicant confirmed to the Investigator that the Parliamentary question and written answer concerned him.

In his answer to the Parliamentary question, the Minister stated,

"It is clear from the records that the person concerned was discharged from the Defence Forces ... in accordance with regulations. Although the application for discharge form, AF 97B, was not signed by the Officer in Charge of Records, his discharge is not in doubt."

The applicant acknowledged to the Investigator that the written answer from the Minister clearly states he was discharged from the Defence Forces.

I do not see my role under section 9 as being to conduct a comprehensive enquiry as to the accuracy or completeness of the records held by the Defence Forces. Rather, I must have regard to the evidence actually provided. I am not making any judgement that the records are in fact, complete, correct and not misleading. Section 9 is not an alternative mechanism for resolving disputes, regarding actions by public bodies

I accept that the applicant has provided background information to explain his view of certain events but I do not consider that sufficient evidence to find that on the balance of probabilities, the information in the records is 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 to the extent that it should be amended. I do not consider that I have sufficient evidence to direct what would amount to the substitution of a different opinion for that of the Officer Commanding in the case of the Medical Board Report. In the case of the Discharge signature, I am not convinced that the absence of the signatures can be corrected by altering the record, under section 9, as the applicant requires.

In this case, the applicant is seeking the addition of certain information (signatures) to a record on the ground that the record relates to him. Section 9 does not provides for such amendments. The fact that the record relates to the applicant does not, of itself, mean that a right of amendment of all information contained in the record exists. The right of amendment is confined to the amendment of incomplete, incorrect or misleading personal information contained in the record. The applicant has identified no such information requiring amendment in this case. Accordingly, I find that the Defence Forces was justified in refusing the applicant's request for the specific amendments sought.

Having carried out a review under section 22(2) of the FOI Act, I affirm the decision of the Defence Forces to refuse to amend the records.

It is important to note that, in cases such as this, 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. In its submission, the Defence Forces stated that a copy of the applicant's request and supporting documentation is included in the applicant's "Personal File held by Officer in Charge, Records and Data Management, HQ 2 Bde", in accordance with the provisions of section 9(4)(a)(i) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse to grant the applicant's application under section 9 of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Elizabeth Dolan
Senior Investigator