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Irish Information Commissioner's Decisions |
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr. X & Health Service Executive [2010] IEIC 080270 (1 July 2010) URL: http://www.bailii.org/ie/cases/IEIC/2010/080270.html Cite as: [2010] IEIC 080270, [2010] IEIC 80270 |
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The Senior Investigator varied the decision of the HSE having found that:
(a) the personal information at one location in the record is misleading and should be amended by alteration, and
(b) the personal information at five locations in the record is incorrect and misleading and should be amended by deletion.
She upheld the HSE's decision relation to the remaining parts of the request for amendment.
Application for review of a decision of the HSE to refuse under section 17 of the FOI Act a request for amendment of personal information in a record created and held by it. The amendments sought and refused are at 24 locations within a 25 page report.
The application to the Commissioner for review of the decision of the HSE was received on 19 November 2008.
The Applicant made his request for amendment of personal information to the HSE on 17 March 2008 under section 17 of the FOI Act. He enclosed full details of the amendments he was seeking in the form of a copy of an earlier letter in this regard to the HSE (letter dated 13 December 2007). The record containing the personal information for which amendment is sought is a 25 page report entitled "Intercountry Adoption Final Assessment Report" (''the report''). The Applicant sought amendment of personal information at 25 locations on pages 3, 4, 16, 17, 19, 20, 21, 22, 23 and 24 of that report.
The HSE issued its decision on 30 April 2008. It refused the request for amendment with one exception - a sentence on page 4 of the report relating to police clearance from (a particular location) - which was accepted by the HSE as being factually incorrect and, accordingly, it advised the Applicant that it would be amended by deletion. The sentence in question at Location 4 reads: "(Location) clearance is in respect of what we now understand to be a current address and covers the entire period of (Applicant's) adult life.". In this connection, the HSE has also advised this Office that, in a subsequent email dated 6 May 2008, the Applicant instructed it not to "transmit any information or documents that pertain to me to the Adoption Board or any other place". As a result the HSE has not completed the amendment procedures, as is required by section 17(5) of the FOI Act, to notify the amendment of personal information in a record to any person to whom access to the record was granted or any other public body to whom a copy of the record was given.
The Applicant requested an internal review of the HSE ; the decision following that internal review issued on 23 October 2008. It affirmed the original decision.
In conducting this review I have had regard to the following:
This Office sent the Applicant preliminary views on his entitlements under the FOI Act and in response, he made additional detailed submissions and submitted further information in support of his case. As I consider that both the applicant and the HSE have had ample opportunity to make submissions, I have decided to bring this review to a close by issuing a formal, binding decision. Although not all of the submissions are referred to in the decision, all relevant material has been considered.
Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.
This review is concerned only with the question of whether any of the personal information of the Applicant, as it is contained at the remaining 24 locations in the 25 page report, is incomplete, incorrect or misleading and thus qualifies for amendment under section 17 of the FOI Act. This review is not concerned with the substantive content of the report (which also includes the personal information of other parties) or with any aspect of the administration of the assessment process which led to the report, including any outcome of that assessment process.
.
Section 17 of the FOI Act provides for application to amend a record from the person (to whom the personal information in a record relates) where that record contains personal information which is incomplete, incorrect or misleading.
Any application for amendment of personal information must, in so far as is practicable:
Amendment of a record which contains personal information and which is found to be incomplete, incorrect or misleading, shall take the form of:
Where a public body refuses to amend personal information in a record, the FOI Act obliges it to attach a copy of the section 17 application to the record in question. The only circumstance in which it is permitted not to append the application to the record/s is where the head of the public body is of the opinion that the application to amend personal information in a record is defamatory or that the alterations/additions required would be "unnecessarily voluminous".
The record in question does contain personal information relating to the Applicant and, accordingly, section 17 of the FOI Act may be invoked in relation to that personal information. It is not necessary, therefore, to consider this aspect of the application any further.
For the purpose of clarity, it is useful to cite the Oxford English Dictionary definition of the terms "incomplete", "incorrect" and "misleading". These three terms are not independent of one another in the sense that, for example, information which is incomplete or incorrect may also be misleading.
"not complete; not fully formed, made, or done; not whole, entire, or thorough; wanting some part; unfinished, imperfect, defective". By contrast, its opposite "complete" is defined as "having all its parts or members; comprising the full number or amount; embracing all the requisite items, details, topics, etc.; entire, full".
"not in accordance with fact; erroneous, inaccurate". It defines the term "correct" as "in accordance with fact, truth, or reason; free from error; exact, true, accurate; right."
"that which leads astray or causes to err."
In a previous decision of this Office [Case No. 98158 - Mrs ABZ and the Office of the Revenue Commissioners (3 August 2000)] - the then Commissioner considered how an application for amendment of information under section 17 might succeed. He concluded that the "onus of proof in such cases lies with the applicant as the party asserting that the information is incomplete, incorrect or misleading". This is the approach which this Office has taken since in examining applications for amendment of records.
In the case cited (Case No. 98158), the Commissioner commented as follows in relation to the application of section 17:
"Care is needed in applying the above definitions in the context of section 17. For example, it should be noted that it is the information rather than the record which must be incomplete, before the right of amendment may be exercised. Personal information in a record is not incomplete merely because the record does not contain all the information which the applicant might like it to contain. It seems to me that the word incomplete in section 17 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 therecord is put or which might put a different complexion on the information."
In that same decision, the Commissioner commented on the implications of deleting information from a record which has been found to be incomplete, incorrect or misleading:
"In my view the deletion of information from a record, on foot of an application under section 17, is not something to be undertaken lightly, given its implications for the evidentiary value of the record concerned. Without wishing to lay down an inflexible rule on this point, it seems to me that deletion of incorrect information from a record is only justified in cases where the actual or potential adverse effect on the applicant is significant and alteration of the record or the addition of a statement will not suffice to remove that effect."
The provision whereby the public body concerned must, where an application is refused, attach a copy of the application for amendment is, in itself, quite significant not least because it alerts any future users of that record to the fact that aspects of its contents are in dispute and it show the reasons for that dispute. In the Applicant's case, this provision means that any future reader of the record will be in a position to read the record as created by the HSE, together with the Applicant's own case for the amendment of the information and apply his or her own judgement to the information concerned.
The record is a 25 page report signed by Mary McStay, Team Leader, Pauline Levins, A/PSW/Supervisor and Jodie Bennet, Social Worker. The Applicant, the HSE and this Office have addressed the application for amendment on an individual sentence basis. This decision identifies the page number and the location of the amendment sought in each of the 24 instances.
The sentence reads "His date of retirement is unknown as is his occupation during his working years." The Applicant contends that this statement is misleading because it gives the impression that he failed to provide information which had been requested of him by the HSE. The Applicant further explains that the information which is stated to be unknown to the HSE i.e. his date of retirement and his occupation during his working years are pieces of information which were never requested of him by the HSE, in the various forms he completed during the assessment process or otherwise. The Applicant has also provided documentation to this Office to show that he wrote to the HSE on three occasions to offer an interview in connection with his partner's assessment for intercountry adoption. The Applicant has also shown that each of these offers (dates) pre-dated the date of the report at issue (date).
The Applicant has requested that the sentence be amended to read "His date of retirement is unknown as is his occupation during his working years because we never asked."
The HSE's position in this regard is that "this statement was correct at the time of writing the report and it was based on the information provided"by the Applicant at the time.
While I accept that the Applicant made efforts to arrange an interview, I recognise that a decision on whether or not such an interview was necessary was a matter only for the Team Leader, and her team. It was not a decision for the Applicant. The report indicates that the Applicant gave details of the fact that he was retired from employment during the entire period of his involvement with the HSE. It would have been reasonable in that context to expect that, even in the absence of a direct question, he might have proffered information on his occupation during his working years. The amendment of personal information in accordance with section 17 of the FOI Act provided for only where information is incomplete, incorrect or misleading. The information in the sentence at issue is accurate; it reflects the facts as known or not known at the time of writing and the information it contains is not therefore either incomplete, incorrect or misleading. I find accordingly.
The Applicant contends that the sentence which reads "(Applicant) declined to fully participate." is misleading as it stands because it could lead a reader to conclude, falsely, that he chose not to participate fully in a process which required that he do so in order that his partner might be assessed for purposes of intercountry adoption. The Applicant points to the context of the paragraph containing the sentence at issue and argues that there is an immediately preceding reference to participation in the assessment process for cohabiting couples. The sentence to which the Applicant refers reads as follows: "Opportunity was afforded to (partner) and (Applicant) to fully participate in the assessment process, as would be required for a married couple, and would by consent be common practice with a co-habiting couple." The applicant says that the HSE had no policy in place pertaining to the situation of himself and his partner and that this is a reason why he did not participate in the process described.
The HSE's position is that "this statement was correct at the time of writing the report and that it must be read in the context of the remainder of the paragraph."
It seems to me that the applicant wishes to have the information amended so that his rationale for not participating is explained. This goes beyond what section 17 envisages.
Having considered the sentence in its context, I am satisfied that it is a follow-up to the statement of usual practice and the Applicant's case for amendment regarding the status of a sole applicant (for intercountry adoption), does not justify a finding that the sentence is incomplete, incorrect or misleading. I find accordingly.
The Applicant has applied to have the following sentence: "The (Location) clearance is in the form of a sworn statement and no address or date period is given." amended to read "The (Location) clearance is in the form of a sworn statement and no address or date period is required."
The Applicant has explained to this Office that police clearance in (location) is not address dependant, rather it is dependant only on the name and date of birth of the applicant. He says that the police clearance covers the entire file under his name regardless of his address at any time. He states that he advised the HSE of this essential difference and yet the record is wrong in suggesting it is a less than full police clearance from (location), a premise which is used subsequently in the report to cast doubt on the Applicant's history.
The HSE has advised that its position on police clearance is grounded in the professional judgement of the Social Worker who dealt with the application at the time.
My examination of this sentence and of the Applicant's case for amendment, including the Criminal History/Police Clearance certificate provided has led me to conclude that the sentence as worded is misleading. The HSE has not refuted or commented on the fact that, in addition to the sworn statement, the (....) computerized search is certified to have determined that the Applicant had no adult criminal appearances. On balance, I agree that the sentence is misleading and should be amended to remove the inference that the (location) police clearance is somehow deficient. I find accordingly and consider the Applicant's case that "required" should replace "given" at the end of the sentence is a reasonable means of carrying out that amendment.
The sentence in question is "We remain unclear if this constitutes an adequate police clearance." The Applicant states that because he has shown that the police clearance is full, this is patently a false statement. The HSE decision (30 April 2008) on his original FOI application for amendment accepted that the sentence relating to police clearance from (location) was factually incorrect and advised that it would be amended by deletion (Location 4).
I have found above that the sentence regarding the (location) police clearance is misleading and should be amended. The combined effect of the HSE decision regarding the (location) Clearance and my findings on the (location) clearance review is to render the sentence "We remain unclear if this constitutes an adequate police clearance." misleading in that it continues to question the status of the police clearance and thus conveys a negative view of the Applicant's history.
I am satisfied that this information is misleading and I have considered whether the amendment should be by way of deletion. In Case No. 98158 referred to above, the former Commissioner noted that the definition of "personal information" found at section 2(1) of the FOI Act includes "views or opinions of another person about the individual" and agreed that the right of amendment of personal information includes the right of amendment of opinions that are incomplete, incorrect, or misleading. He cautioned, however, that "section 17 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 17 is made." An applicant is expected to show 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." I find that the opinion expressed is not supported by the factual information underlying it and that the potential adverse effect on the Applicant is significant. Therefore, I consider that deletion of the sentence is justified. I find accordingly.
The sentence "An incomplete police clearance would clearly raise child protection concerns." is predicated on the same conclusion as that discussed above. However, there is an additional dimension to the sentence in that it introduces "child protection concerns" for the first time in the report. This could allow any reader to speculate on very serious offences when, in fact, the statement appears to be based solely on the misleading conclusion that the police clearance was incomplete. The Applicant contends that the statement is seriously misleading, that it constitutes speculation on the consequences of incomplete police clearance and that it ought to be amended by the addition of the following statement: "The police clearances are complete".
The HSE say that "this statement is based on the professional judgment of the case Social Worker and it must be read in the context of the paragraph" in which it resides.
In conjunction with my findings on the earlier references to police clearance, I find that the sentence is not supported by the factual information underlying it and that the potential adverse effect on the Applicant is significant. Therefore, I consider that deletion of the sentence is the best form of amendment and I find accordingly.
The Applicant states that the sentence "(Applicant) has chosen not to complete a (sic) updated medical report through his GP, therefore his current state of health is unknown." is misleading for the reason that he did complete an initial medical report which showed that he was in good health but that, having been informed by the social workers that they were planning a negative recommendation on the application regardless of any second medical report, he chose not to undergo a second medical examination. The Applicant has also cited the absence of any requirement for a medical report for adults residing in the household (of a person being assessed for intercountry adoption). The Applicant has applied to have the sentence amended to reflect the actual position, as he saw it, by adding "because it was not required of him." to the end of the sentence.
The HSE says that "this sentence is factually correct"and that "the requirement to seek an updated medical report is included in the standardised procedures for eligibility and suitability".
In considering this sentence in a section 17 context I must address the question of whether, or not, the personal information in the sentence in question is incomplete, incorrect or misleading. I take full account of the position of the Applicant as to why he chose not to provide an updated medical report through his GP. However, I must also have regard to the disputed sentence as a record of what actually transpired which, in effect, comes down to a choice the Applicant made as a result of his own assessment of his position. I have no basis therefore on which to conclude that the sentence is incorrect, incomplete or misleading.
I find that the sentence as written is not incomplete, incorrect or misleading so that no amendment under section 17 is justified.
The sentence in question is "In commencing this assessment, it was somewhat challenging to understand the relationship (Applicant) would have with a child. In assessment however, it has become clear that he would have a significant role in the child's life."
The Applicant contends that this is a contradictory statement in view of a subsequent sentence stating: "This is based on their supportive and committed relationship, the fact that they reside together, and the impossibility and unreality of (Applicant) not having a role in the child's life." The Applicant also holds that it served as a premise for the eventual negative recommendation and that it reflects the fact that the Social Workers were unsure of how to proceed. He has suggested an alternative wording which, he contends, would complete and correct the gaps and inaccuracies in the existing statement.
I have considered the statements and I take the view that they represent the views of the Social Work Team on the role of a co-habiting partner of a sole applicant for intercountry adoption as the assessment procedure evolved and progressed. The Applicant's partner applied for assessment for intercountry adoption in December 1999 and the assessment report was signed off in December 2005. I find that the opinion expressed is one that the writers were entitled to form. I find that there is no basis for me to support a contention that this information is incomplete, incorrect or misleading and I find accordingly.
The Applicant applied for amendment by deletion of the sentence reading "It was difficult to picture the child in her home and life." In support of his application, the Applicant argues that the remark manages to convey speculation on unspecified and unarticulated images and that the report should deal with facts not imagery.
The HSE say that "this statement is based on the professional judgment of the case Social Worker". The HSE has added that, in any event, it does not regard this statement as containing any personal information relating to the Applicant.
Having considered this statement, I agree with the HSE and find that this is not personal information relating to the Applicant and thus is not within the scope of section 17 of the FOI Act.
The Applicant contends that the sentence reading "It must be acknowledged that (partner) and her partner have had ongoing difficulties in understanding and cooperating with the policy and procedures of the agency ..." is incorrect and should be amended by deletion. The Applicant asserts that the policies and procedures referred to did not exist and that he and his partner had made a very significant contribution in the area of intercountry adoption having prepared a number of documents on the issue (including a document on how to assess a sole applicant with an older partner), engaged in consultation on legislation, participated in government sponsored workshops and provided feedback on forms in the area. The Applicant states that he and his partner had cooperated fully with any policies and procedures in so far as they existed and that any difficulties in the area were caused by the non-existence of policies and procedures. In the event of the sentence not being amended by deletion, the Applicant requested that it be amended to read "It must be acknowledged that (partner's name) and her partner have had ongoing difficulties in understanding and cooperating with the policy and procedures of the agency, which did not exist." As such, in accordance with section 17, the Applicant contends that the personal information in the record is incorrect and should be amended either by deletion in its entirety or by the addition of the word "not" between "have" and "had" and the word "justifiably" between "questioned" and "the".
The HSE's position on this statement is that it is "factually correct and must be read in conjunction with" the sentence which follows (i.e. lines 19 and 20)
In relation to the sentence reading "In particular, (Applicant) has consistently questioned the validity and necessity of supplying documents such as garda clearances, and medical reports." The Applicant has stated that he never raised any questions about garda clearance and that he had supplied every garda/police clearance requested of him. The Applicant claimed that the '' false'' aspersions in this regard arise from the fact that he was the partner of a sole applicant and that the HSE had no procedures in place to deal with such circumstances; he said that the fact that the Adoption Board had to seek a legal opinion is testimony to the absence of such a policy.
The HSE has stated to this Office that "the statement is factually correct at the time of writing the report". Additionally, the HSE has provided a copy of an internal document dated February 2002 which shows that a policy on the assessment of applications for intercountry adoption from sole applicants in a cohabiting relationship was in place at that time.
It is not within my jurisdiction in the course of this review to comment on the procedures involved in the adoption assessment process or on the any difficulties that may have arisen. On balance I consider that the Applicant has not shown that the information in the sentences above is incomplete, incorrect or misleading and I find accordingly.
The statement is "In the event of (partner) predeceasing (Applicant), it is unclear how (Applicant) views his ongoing relationship with the child." The Applicant contends that this statement is misleading, that it suggests that he is the one who was not clear, or did not make himself clear, rather than that the Social Workers found it difficult to understand his views, or that they did not know because they never asked, or that they intentionally did not want to get his views. The Applicant contends that this lack of clarity brings ambiguity to an important issue and is consequently misleading. He has requested an amendment to clarify that the Social Workers did not enquire about his ongoing relationship with the child in such circumstances and blocked his attempts to clear his views on the matter.
The position of the HSE is that "this statement is based on the professional judgement of the case Social Worker based on her meetings/interviews with [Applicant]".
This is an instance where I regard the Applicant's contentions as going well beyond what is envisaged by section 17. I do not agree that the statement is misleading. It is the opinion of the writer and, whilst the Applicant clearly disagrees with it, I have no basis on which to find that an amendment is justified in order for the Applicant's clarifications to be incorporated into the record. I find that the Applicant has not shown that the information is incomplete, incorrect or misleading and I find accordingly.
This is section of the report which summarises the assessment by reference to the five standards of the "Standardised Framework for Intercountry Adoption Assessment. The lines in question read "During the assessment, (Applicant) has stated that he cannot recall his whereabouts for lengthy periods of time ......... We remain unclear if the police clearance (Applicant) has latterly provided is complete. An incomplete police clearance for any adult residing in the home raises child protection concerns. (Applicant) has not provided a current/recent medical report."
13. The Applicant contends that the use of the term 'whereabouts' is pejorative and implies, falsely, surreptitious movement from place to place. The Applicant has explained to this Office that he simply could not recall some of the addresses he had lived at up to some years previously. The Applicant has sought amendment of that sentence to read "During the assessment, (the Applicant) has stated that he cannot recall exact addresses for lengthy periods of time, from .... to .... and from .... to ....."
14. The Applicant contends that the sentence "We remain unclear if the police clearance (Applicant) has latterly provided is complete." is false and misleading and should be amended by full deletion. The Applicant said that it had no basis whatsoever and that any lack of clarity stems only from the inability of the social workers to understand (location) police clearances - see previous reference to this issue on page 6 of this decision.
15. The Applicant says that the sentence "An incomplete police clearance for any adult residing in the home raises child protection concerns." is almost a direct repetition of the statement on Page 4 of the record as referred to earlier in this decision (pages 7 and 8), that it is based on a false premise and that it should be amended by deletion. The Applicant said that, having concluded erroneously that the police clearance provided was incomplete, the social workers compounded that error by proceeding to insinuate dire consequences relating to child protection. The Applicant applied to have the sentence amended by deletion.
16. In his original application to the HSE under section 17 of the FOI Act the Applicant applied to have the sentence "(Applicant) has not provided a current / recent medical report." amended to read"Since we were unable or chose not to state why the medical report was necessary or whether the results of the report would have any effect on the outcome of the assessment, or that we were looking for a medical basis to support a predetermined negative recommendation, (Applicant) chose not to provide a second a medical report." In the course of this review the Applicant has advised that the sentence can stand. Therefore, the application for amendment is deemed to have been withdrawn.
The HSE advised this Office in relation to Locations 13 to 16 above that the information is "based on the professional judgement of the case Social Worker". The HSE, while acknowledging the Applicant's entitlement to interpret the word "whereabouts" as the Applicant wishes, has added that its use of the word has its basis in the fact that the Applicant did not inform the case Social Worker "where" he resided for the periods detailed.
As a summary, the four sentences are, by and large, a repeat of previous statements in the report. Accordingly, and without revisiting the four individual statements, I am satisfied that:
13. Because the statement is not incomplete, incorrect or misleading there are no grounds for amendment.
14. With reference back to my conclusions regarding page 4, lines 28 and 29, the case for amendment by deletion has been made on the basis that the conclusions are misleading having regard to the content of the police clearances.
15. With reference back to my conclusions regarding page 4, lines 29 and 30, the case for amendment by deletion has been made on the basis that the conclusions are misleading having regard to the content of the police clearances.
16. This particular application for amendment of personal information has been withdrawn by the Applicant.
I find accordingly.
The sentence "Consequently, it is not possible to assess (partner) as a single applicant." is regarded by the Applicant as being incorrect because it implies that it was the Applicant's presence in his partner's life which prevented her from being assessed as a 'single' applicant. The Applicant applied to have the sentence amended either by deletion or by altering it to read as follows:
"(P)artner) was an unmarried applicant and thus we had to assess her as a single or sole applicant. Unfortunately, we had no policy in place to assess a sole cohabiting applicant where the partner chose not to take on parental responsibilities. The failure of this Agency to have a relevant policy in place produced a considerable consternation on (partner) and caused undue delay in her assessment."
The Applicant has claimed that the absence of a policy to address his partner's situation is underlined by the fact that, in September ...., almost two years after the date on which the report at issue was signed off, the Adoption Board prepared a document entitled "Guidelines for determining the eligibility and suitability of sole applicants who apply for assessment for intercountry adoption".
The HSE accepts that the Applicant is correct in his contention that a document entitled "Guidelines for determining the eligibility and suitability of sole applicants who apply for assessment for intercountry adoption" was prepared by the Adoption Board in 2007. However, the HSE also points out that the Adoption Board provided written guidance to all Health Boards, as they were then, on 7 February 2002 on the eligibility of sole applicants in applying for an intercountry adoption assessment where the sole applicant was in a cohabiting relationship. The HSE provided this Office with a copy of the guidelines referred to and it shows that there was a strong focus on the participation of the cohabiting partner in the assessment procedures. For example, the following is a relevant extract from those guidelines:
"The following guidelines should be adopted when dealing with an application from a sole applicant who is in a co-habiting relationship:-
(i) both the applicant the co-habiting partner should be requested to provide all the usual supporting documentation including medical certificates, certificates of income, Garda authorisation forms, referees etc,
(ii) both the applicant and the co-habiting partner should participate in the preparation course together, and
(iii) both the applicant and the co-habiting partner should participate in the assessment together."
The Applicant has applied for amendment by deletion of the partial sentence which reads "This is a reflection of the proposed family composition which is unusual as presented, likely to cause confusion for the child ....". The Applicant has expressed a particular difficulty with the use of the word "unusual" which he sees as a loaded term which is also vague and undefined.
The HSE has stated that this partial sentence "must be read in the context of the paragraph" and that it is based on "the professional judgment of the case Social Worker."
The reference to "understanding of the importance of maintaining an on-going and meaningful relationship with their child" is, the Applicant says, based on the recurring false assumption that the Applicant was an applicant for intercountry adoption which, as he has emphasised, he was not. Rather, the Applicant was a co-habiting partner of a sole applicant. Therefore, the Applicant maintains that the statement is incorrect and should be amended, whether by (a) deletion, (b) the replacement of 'their child' with 'the applicant's child' or (c) by appending the following statement "And the fact that we speak in terms of addition of 'their child' when only one person is the applicant and only one person will be the parent, further emphasises the difficulty we had in assessing (partner's name) due to our lack of established procedures, guidelines or experience for such a case."
The HSE has stated that this extract "must be read in the context of the sentence" in which it resides and that it is "based on the professional judgement of the case Social Worker."
Having considered the Applicant's contentions, I am satisfied that they do not amount to justification for finding that the Social Worker's professional judgment is so flawed as to warrant amendment under section 17. The writer of the sentences at issue was assessing adherence to the second of the five standards for intercountry adoption -
"The capacity to provide the child with family life that will promote his or her development and well being and have due regard to the physical, emotional, social, health, cultural, spiritual and other dimensions. The resources that families can draw on will vary from family to family and may change over time. Whatever circumstances the family find themselves in, the applicant/s will be able to demonstrate their understanding of the importance of maintaining an on-going and meaningful relationship with their child."
and was justified in commenting on a household structure from the point of view of a child who might be adopted into that household. Therefore, I have concluded that the Applicant has not shown that the statements are incomplete, incorrect or misleading and I find accordingly.
The Applicant contends that, in referring to the purpose of the assessment being to assess (partner) "to have sole parental rights and responsibilities towards a child", the conclusion contradicts everything in the preceding report which was predicated on joint rather than sole rights and responsibilities. The Applicant contends that subsequent sentence "The requirements in terms of (Applicant) is that he had police clearance as an adult member of the household, and that he be considered to the extent that he impacts upon (partner's) capacity to meet the standards." supports his earlier contentions in relation to the fact that his cohabiting partner was a sole applicant for intercountry adoption. The Applicant further maintains that the information in this element of the report is incomplete for purposes of section 17(1) and that the following should be added to make the information in the report complete "However, we went beyond that requirement and sought ways to assure a negative recommendation and to be able to say later that he did not participate fully."
The HSE position is that "these sentences must be read in conjunction with the full paragraph". The HSE also contends that "although the structure of the second sentence is weak it is not contradictory as it is clearly set out as a requirement rather than an actuality".
Having considered the matter, I am satisfied that the Applicant's comments are in the form of additions that he wishes to make to the sentences in order to clarify/elaborate on his position. As outlined earlier, a record is not incomplete merely because it does not contain all of the information which the Applicant might like it to contain. In this instance, he has not shown that the information is either incomplete, incorrect or misleading and I find accordingly.
This extract reads ".... yet we do not even know his employment history, how he was parented, anything of him as a parent previously, or whether he may have committed criminal offences." In relation to the first clause of this extract, the Applicant says that the following should be appended "We do not know because we never asked. We could have known these facts if we availed of his offers to meet with us, but we chose not to. Thus our ignorance of the matter is of our own choosing." The Applicant states that the remarks in relation to criminal offences are "slanderous" and made without any supporting evidence". The Applicant has applied for amendment of the extract reading "or whether he may have committed criminal offences."
In its response the HSE has explained the this extract "must be read in conjunction with the paragraph" and that is "based on the information, or the lack thereof, provided by Mr X and the professional judgment of same by theSocial Worker".
In so far as the sentence leading up to the statement "or whether he may have committed criminal offences" is concerned I conclude that, in its context, there are no grounds for a finding that the information is incomplete, incorrect or misleading. That part of the sentence reflects the knowledge of the writer of the facts at that time. However, I cannot conclude likewise with regard to remainder of the sentence and to the direct reference to the possibility that the Applicant may have committed criminal offences. I have dealt above in some detail on the matter of the information contained in the police clearance from two states. The Applicant is entitled to a presumption of innocence in law and the information underlying the questioning of whether he may have committed criminal offences is not supported by the police records supplied. Given the adverse effect on the Applicant of this misleading information I am satisfied that alteration of the record or the addition of a statement would not suffice to remove that effect. Therefore, amendment by deletion is required.
"(Applicant) has not presented as a tolerant or cooperative person for the most part in his dealings with this agency." The Applicant has applied to have this statement amended by deletion because he believes it to be incorrect and describes it as "an intolerable affront" to his character.
The HSE holds that this statement "is based on the case Social Worker's meetings / interviews with (Applicant) and their professional judgment of same".
".... it is impossible to assume (Applicant) would consistently be able to prioritise the needs of the child over his own needs." This, the Applicant claims, constitutes speculation based on impossible assumptions and, if it is valid to speculate in this manner, then it is equally valid to say ".... it is impossible to assume (Applicant) would not consistently be able to prioritise the needs of the child over his own needs." Thus, the Applicant contends that the phrase, which is misleading for purposes of section 17(1) should be amended either by deletion or to include its opposite.
The HSE holds that this statement "must be read in conjunction with the sentence in which it resides and that it is based on the professional judgment of the case Social Worker".
Having considered whether the statement is incorrect, incomplete or misleading I am satisfied that it represents the views or opinions of the Social Work Team about the Applicant, it is contained within a context where the entire process of assessment (for intercountry adoption) contains a substantial expression of views/opinions on a prospective adoption. I am not convinced that the Applicant's objections to the opinion are sufficient to justify a finding that any element of that statement is incomplete, incorrect or misleading. I find accordingly.
The findings above are that the Applicant has justified amendment under section 17 of the Act in relation to those parts of the information in the record which arose from the police clearance documentation supplied.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby vary the decision of the HSE and direct that the information contained at the following locations in the 25 page report be amended by deletion:
1. Location 3, page 4, line 23: Amend by alteration the sentence which reads: "The (location) clearance is in the form of a sworn statement and no address or date period is given." to read "The (location) clearance is in the form of a sworn statement and no address or date period is required."
2. Location 5, page 4, line 28: Amend by deletion the sentence which reads: "We remain unclear if this constitutes an inadequate police clearance."
3. Location 6, page 4, line 29: Amend by deletion the sentence which reads: "An incomplete police clearance would clearly raise child protection concerns."
4. Location 14, page 21, line 20: Amend by deletion the sentence which reads: "We remain unclear if the police clearance (Applicant) has latterly provided is complete."
5. Location 15, page 21, line 21: Amend by deletion the sentence which reads: "An incomplete police clearance for any adult residing in the home raises child protection concerns."
6. Location 23, page 23, line 29: Amend by deletion the element of the sentence which reads "....whether he may have committed criminal offences."
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. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
