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Whether the University was justified, under section 17 of the FOI Act, in refusing to amend personal information in records held by the University.

Ms XY and the University of Limerick (the University)

Background

On 22nd February 2013 the applicant submitted an FOI request to the University seeking (1) access to her personal records, under section 7 of the FOI Act, for the period from August 2010 to January 2013, (2) amendment of seven records as viewed via the student portal of the University's website under section 17 of the FOI Act and (3) a statement of reasons for 62 decisions of the University under section 18 of the FOI Act. As the applicant did not receive a response she requested an internal review of the decision on the basis of a deemed refusal. The University issued its internal review decision on 16 May 2013 and part granted the request for access to records, agreed to one amendment under section 17 and provided statements of reasons to some requests under section 18.
The applicant wrote to this Office on 29 July 2013 seeking a review of the University's decision.
For procedural reasons, this Office decided to divide the application into three reviews numbered 130196 - section 7, 130197 - section 17 and 130198 - section 18. All three reviews were conducted separately and this decision is confined to the application under section 17 of the FOI Act for the amendment of records relating to the applicant's personal information.
Ms Alison McCulloch, Investigator in this Office, wrote to the applicant on 18 August 2014. She informed the applicant of her view that no further amendment or deletion of the information in the records is required. The applicant responded to that letter on 1 September 2014. She accepted the amendment made by the University regarding item no 2 and confirmed that she did not agree with Ms McCulloch's preliminary views on the remaining amendments or deletions sought. She argued that the information specified should be amended or removed. Accordingly, I have now decided to conclude this review by way of a formal binding decision.

In carrying out my review, I have had regard to correspondence between the University and the applicant, to contact between this Office and the University and to the relevant contacts between this Office and the applicant. I have also had regard to the relevant provisions of the FOI Act and the records provided to this Office by the University.

Preliminary Matters
It is clear from the correspondence that the applicant forwarded to this Office during the course of the review that her concerns extend beyond the accuracy of her personal information in records as held or viewed via the student portal of the University's website. However, this Office has no role in examining complaints concerning the nature of the applicant's engagements with the University or its various tutors. It is outside the remit of the Information Commissioner to adjudicate on how public bodies carry out their functions generally. This means that this Office does not have the authority to investigate complaints against public bodies or to provide an alternative dispute mechanism with respect to the administrative actions taken by public bodies.

Scope of Review

As the University agreed to the amendment requested at (2) this review is confined to the amendments requested at (1) - RE (student enrolment terminated), (3) - Level: BDEG - Grade: 2.2 - Result Pass, (4) - an archived record of a quality credit average (QCA) of 1.65, (5) - all reference to "action to be taken", "progress with optional repeats" and questions marks, (6) - deletion of letter dated 16 December 2011 unsigned with Ms Nuala Cullimore's typed name and (7) - two transcripts dated 12 and 18 June 2012.

Analysis and Findings

Section 17
Section 17(1) of the FOI Act provides that:
"Where personal information in a record held by a public 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-
(i) by altering it so as to make the information complete or correct or not misleading, as may be appropriate,
(ii) by adding to the record a statement specifying the respects in which the body is satisfied that the information is incomplete, incorrect or misleading, as may be appropriate, or
(iii) by deleting the information from it."
Section 17(2) provides that:"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."
Items Numbered (4), (5) & (7)
Section 17(2)(a) of the FOI Act provides that an application for amendment shall, in so far as practicable, specify the records concerned and the amendment required. In her original FOI request, the applicant requested the amendment of her personal information on her "record/archived record" "as viewed via the student portal in various fields....." of the University's website. She identified seven records for amendment or deletion, three of which the University said do not exist or are not currently held. These items are identified as (4) - an archived record of a quality credit average (QCA) of 1.65, (5) - all reference to "action to be taken", "progress with optional repeats" and questions marks and (7) - two transcripts dated 12 and 18 June 2012. The University told the applicant that it could not find where these records were located and asked for evidence as to where they might be found. On 14 March 2013 the applicant replied that she regularly saved copies of records including transcripts but that it was not possible to submit evidence of where they can be currently viewed despite having evidence of their existence on previous dates. According to the University, student transcripts are updated and only the most up-to-date transcript, reflecting current status is retained on each student record. It confirmed that the records identified at (4) and (7) do not exist and said that the reference to 'action to be taken', 'progress with optional repeats' referred to by the applicant are recorded on transcripts dated June and December 2012 which are not retained by the University. In the applicant's submission to this Office on 1 September 2014, she argued that her request was for amendment of records related to personal information and inaccuracies that remained on records or archived records. She said that some of these records were posted to her in hard copy by the University. She cited the definition of "record" in the FOI Act which includes " any form in which data are held whether manual, mechanical or electronic". I accept that "screen shot" type records identified for amendment by the applicant are not retained by the University. Therefore, I consider that section 17 of the FOI Act cannot apply to these records as they are no longer held by the University.
Regarding the applicant's request in item 5 for the deletion of the question marks and other information in respect of the taught part of the course, the University has stated that this is a progress code column, the question marks are a default setting on the records system and appear in a similar way for all students. As this default setting applies to all students, it cannot be the personal information of the applicant and therefore section 17 cannot apply to the amendment of this record. In any case, I accept the position of the University that the data in item 5 has not been retained because the electronic record was updated as the applicant's status changed on the system.
I am satisfied that Section 17 of the FOI Act may potentially be invoked in relation to the personal information identified at (1), (3) and (6) above. The next step is to decide whether or not the personal information in question is "incomplete, incorrect or misleading" and thus can be amended or deleted.

The onus of proof
The applicant's submissions have provided me with a clear indication as to the manner in which, in her view, the records are flawed. Given the requirements of section 17 as referred to above, however, I would not be justified in directing that a public body amend its records on the sole basis of statements or opinions - however strongly held - by the person seeking the amendment.

The approach of my Office to the application of Section 17 was set out in case number 98158 - Mrs. ABZ and the Office of the Revenue Commissioners. In that decision, the former Commissioner took the view, in the absence of any express statement in the FOI Act, that the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading, and that the standard of proof required in such cases is that of "the balance of probabilities".

The matter of alteration of records through amendment or deletion of inaccurate information was also dealt with by the former Commissioner in Case No. 98158, In that case, the late Mr Kevin Murphy stated:

"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 should also be given to possible future use of the record and to the effect of the form of amendment on the future usefulness of the record.
. . . . .
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 Commissioner concurs with the views expressed by previous Commissioners in respect of the application of section 17. He does not see his role, arising from section 17, as being to conduct a comprehensive enquiry as to the accuracy or completeness of records. Rather, regard must be had to the evidence actually provided by the applicant, to any rebutting evidence put forward by the public body and a decision made on that basis. Directing the amendment of, or deletion of information from, the records of a public body is a serious step and has particular implications for the evidential value of records. Interference with the integrity of a record of a public body is not something to be decided upon lightly. It is reasonable, particularly in view of the requirement that the applicant's account be attached to the file concerned, that the applicant be asked to provide evidence to support his or her contention that the record is flawed.

In requiring the applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, this Office is not making any prior judgement as to the accuracy of a record. The fact that an applicant fails to provide sufficient evidence that the information in a record is incomplete, incorrect or misleading will cause the records to remain undisturbed; but this does not carry any judgement on the part of this Office that the record is, in fact, complete, correct and not misleading.

I will now examine the three amendments/deletions sought in the context of the statutory provisions and the approach of this Office to Section 17.

Record No (1)
The record identified as record no 1 is an input code of RE (student enrolment terminated) entered on the applicant's transcript as viewed via the student portal on the University's website. The applicant said that despite achieving the required standard she was denied progression and "RE" was inserted on her transcript in May/June 2012. According to the University, "the applicant progressed to the Masters dissertation in November 2011 and the deadline set for submission of her Masters dissertation was 14 May 2012. Administratively speaking, as this deadline fell within the academic year following the formal programme of study for which [the applicant] was enrolled, 'RE' was recorded to facilitate the system bringing forward her QCA (Quality Credit Average) record to this next academic year (in the same way that it would be for all other students to whom such circumstances would apply). The applicant submitted her dissertation in May 2012 and resubmitted it in July that year, and was ultimately awarded a C2 grade for this module."

In her application to this Office the applicant requested the removal of the inputted 'RE' from the student portal. As stated above, it is the view of the Commissioner 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. It seems to me that Record no (1) is a code which is required in a computer programme to facilitate a system process of recording at a particular point in time a student grade for transfer to the next academic year. It is part of a process devised by the University to transfer to the next year the grade of any student - not just the applicant - who has not reached the required standard. From records provided to this Office by the University it is clear that, when viewed in its entirety any future reader would see from the system that the applicant did, in fact, complete her Masters degree in 2012. Accordingly, I find that, on the balance of probability, the applicant has not demonstrated that the information in Record No (1) is incomplete, incorrect or misleading.

Record No (3)
The applicant requested the amendment of the entry of 'BDEG' in the field titled Level, '2.2' in the field titled Grade and 'Pass' in the field titled Result as viewed on the student portal of the University's website. She said that the code 'BDEG' does not accurately reflect her BSc (Hons) Nursing and that she is not convinced that a University would fail to have a code for a level 8 as well as a level 7 degree. According to the University, the code 'BDEG' is a standard qualification code within the University's electronic records system that signifies a Primary Degree and that the 2.2 is the final award achieved. It also said that the Result field signifies that the subject area of the qualification was also passed and that his field only has two options, Pass or Fail. I have no reason to dispute this account of the system.

I am not satisfied that a record can be said to be incorrect, incomplete or misleading simply because it does not contain all the information an applicant would like it to contain, or because the information therein is not set out in a way that is acceptable to the applicant. It seems to me that section 17 is intended to allow for the amendment of information where the substantive content of that information is incorrect, incomplete or misleading. While the applicant may well be of the opinion the her records are incomplete because they do not contain all the information she would like, I do not accept that this makes the records incorrect, incomplete or misleading. Therefore, I find that amendment of the records as identified as record No. (3) is not required under section 17 of the FOI Act on the grounds that the applicant has not demonstrated, on the balance of probabilities, that such amendment is required.

Record No (6)
The applicant requested the deletion of the letter dated 16 December 2011 unsigned with Ms Nuala Cullimore's name typed at the end. This letter was sent from the University to the applicant advising her that her cumulative performance to that date did not meet the minimum academic standards and that she could not progress to graduation until she had brought her academic qualification to the required standard. It advised her that a grade of C3 or higher in the dissertation is obligatory for the successful completion of the degree and to submit her dissertation by a certain date and time. It also advised the applicant to confirm if she wished to take this option and to contact the Fees Office in relation to fees payable for this.

The applicant said that the fact that she had an appeal upheld in November 2011 was confirmation enough that she wanted to complete the programme of study. She also said that when she queried the request for additional fees she was told that no fees were due provided that she submitted her dissertation by 14 May 2012. The University claimed that the letter is part of the applicant's overall student record retained by it and said that it will not remove the letter from its records. It seems to me that the University's position is that the letter reflected its understanding of matters at that particular time.

The applicant's opinion is that the letter is incorrect and misleading and in order for the amendment sought by the applicant to be justified, I would need to be satisfied that the balance of probabilities test has been met. As indicated above, deletion of information is a step which this Office believes should be taken only in exceptional circumstances. In this case, the applicant has submitted no stronger evidence than a contrary opinion and contextual explanations relating to certain matters. In my view, this is insufficient evidence on which I may base a decision to find that the applicant has shown, on the balance of probabilities, the information to be incorrect, incomplete or misleading. I find therefore, that the University's decision to refuse to amend this record is justified.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I find that the University has correctly applied the provisions of section 17 of the FOI Act. Accordingly, I hereby affirm the decision of the University in this case.

Right of Appeal

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.

Elizabeth Dolan
Senior Investigator
29 September 2014