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Whether the Defence Forces was justified, pursuant to section 17 of the FOI Act, in refusing to amend a statement relating to the investigation of the applicant's Redress of Wrongs complaint to the Defence Forces

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant is a retired soldier who made a Redress of Wrongs complaint to the Defence Forces in 2007 while he was still serving in the Army. The complaint related to a number of issues, including the delay involved in him being provided with a copy of an Assessment Report following his unsuccessful application for an internal Logistics Accountancy Course. His complaint was investigated by a Military Investigating Officer (MIO) who issued a final report in December 2007. The applicant disputed the findings in the report and made a complaint to the Ombudsman for the Defence Forces (ODF) as a result. In her report dated 18 September 2009, the ODF upheld his complaint. In his letter to the ODF dated 29 April 2010 the Minister for Defence (the Minister) accepted the findings in the ODF's report. The applicant sought a review of his Redress of Wrongs complaint on foot of this and the Defence Forces declined to revisit the matter.

On 23 May 2014 the applicant made an application to the Defence Forces under section 17 of the FOI Act for the deletion of the following statement contained in the MIO's report:

"[D]espite informing me, the investigating officer, that he has not to date (11 Dec 07) received his Assessment Report, Lt Kene [sic] A/Adjt 2 Cav Sqn personally handed him a copy of the Assessment report on the afternoon of 23 Nov 07"

In its decision of 9 June 2014, the Defence Forces refused to make the amendment sought on the grounds that the information in the statement concerned remained in dispute. The applicant sought an internal review of that decision on 12 June 2014. The Defence Forces upheld its original decision on 19 June 2014, on the basis that it was not clear that the statement concerned was incorrect or misleading. On 3 July 2014 the applicant applied to the Commissioner for a review of the decision of the Defence Forces.

I note that during the course of this review, Ms Sandra Murdiff, Investigating Officer, informed the applicant and the Defence Forces of her preliminary view that the information concerned was incorrect or misleading and that the Defence Forces was not justified in its decision to refuse to amend the statement in question. I also note that the Defence Forces suggested the addition of a paragraph to the report concerned, in an effort to settle the case. The applicant did not accept this as settlement. I do not agree with Ms Murdiff's views for reasons which I set out below. I note that Ms Murdiff informed the applicant that I disagreed with her view on 14 November 2014 and I have had regard to his letter dated 19 November 2014 in response. Having regard to the content of that letter, I consider that the review should now be brought to a close by the issue of a formal binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the Defence Forces' decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Defence Forces, and to the record at issue. I have also had regard to the provisions of the FOI Act.

Scope of Review

This review is solely concerned with whether the Defence Forces was justified in refusing to amend the relevant statement contained in the Assessment Report under section 17 of the FOI Act.

Analysis and Findings

Section 17 of the FOI Act provides a right of amendment of personal information relating to a requester, contained in a record held by a public body, where the information is incomplete, incorrect or misleading. I am satisfied that the information the applicant wishes to have amended is personal information relating to him and this has not been disputed by the Defence Forces.

In Case No. 98158 (Mrs ABZ and the Office of the Revenue Commissioners, available on our website www.oic.ie), the then Commissioner explained how an application under section 17 might succeed. He found that the "onus of proof in such cases lies with the applicant as the party asserting that the information is incomplete, incorrect or misleading" and that the standard of proof in such cases is that of the "balance of probabilities". He went on to describe what the applicant would be expected to provide in terms of proof, stating that:

"The assessment of whether certain factual information is incorrect will often be straightforward. However, it is possible to envisage a case in which an applicant challenges the version of events concerning him or her contained in a record. In such cases a right of amendment exists provided the applicant shows that, on the balance of probabilit[ies], the account of events, to the extent that it concerns him or her, is not in accordance with the facts or is erroneous or inaccurate."

The current Commissioner concurs with his predecessor's views in respect of the standard of proof and he accepts that there is an obligation in section 17(2)(b) which requires that an application "shall, in so far as is practicable ... include appropriate information in support of the application." The amount of information provided to support a claim and whether or not it is capable of being verified, and by what means, will vary depending on the type of record at issue. However, the onus is on the applicant to satisfy the Commissioner that, on the balance of probabilities, the information is incomplete, incorrect or misleading.

The Commissioner does not see his role, arising from section 17, 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, to any rebutting evidence put forward by the public body and make a decision on that basis. The applicant's assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.

Directing the amendment of 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, the Commissioner 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 the Commissioner that the record is, in fact, complete, correct and not misleading. The question I must consider in this case is whether the applicant has submitted sufficient evidence to satisfy me that the information contained in the statement he wishes to have amended is, on balance, incomplete, incorrect or misleading.

The applicant states that he has consistently contended that he did not receive a copy of his Assessment Report in November 2007. He is of the view that the statement in question casts doubts on his character and that it implies that he lied to a superior officer. He asserts that this has cast a shadow on his time in the Army. The applicant contends that a report such as this would normally be given to a soldier while being paraded by a senior officer who would explain its contents, which he says was not done. The applicant also contends that the fact that the ODF upheld all aspects of his complaint vindicates his assertion that the statement concerned is incorrect.

The applicant further states that the Defence Forces' position has changed from "Lt Keane personally handed him a copy of the Assessment Report on the afternoon of 23 Nov 07" (in the MIO's report), to "I note the contention of [Lieutenant] Keane that she handed [the applicant] his report in an envelope" (in the Chief of Staff's Considered Ruling dated 14 March 2008), and finally to "[Lieutenant] Keane stated that she recollected handing the envelope which she believed to contain the Assessment Report to [the applicant] on the 23 Nov 2007" in the note recording the applicant's concerns on his Redress of Wrongs file which accompanied the Minister's Private Secretary's letter to him on 19 February 2014. He contends that this demonstrates a lack of consistency in the Defence Forces' version of events over time.

The Defence Forces' argument is that the issue of the applicant's Assessment Report remains in dispute. It states that Lieutenant Keane and Captain Sharkey (an Officer who stated that he gave the Assessment Report to Lieutenant Keane to give to the applicant) still assert that the report was given to the applicant on 23 November 2007. The Defence Forces asserts that the Minister's letter dated 29 April 2010 deliberately did not address the issue. I note that while the Minister's letter did not dispute any of the conclusions drawn by the ODF in her report and stated that he accepted her finding that "there was an unacceptable delay" in supplying the applicant with a copy of his report and noted that he "was issued with a copy of his Assessment Form in April 2008", he did not comment as to whether the applicant received a copy of his report in November 2007.

In essence, this Office is being asked to adjudicate upon which of two conflicting versions of a past event, dating back to 2007, is correct. I consider that it would not be appropriate for me to accept one party's version of events to the detriment of the other unless there is compelling evidence which requires me to do so. Given this Office's position on the onus and standard of proof as outlined above, I would expect the applicant to be in a position to provide such evidence to show that, on balance, the statement he wishes to have amended is incomplete, incorrect or misleading.

It seems to me that there is no substantive inconsistency in the Defence Forces' version of events as suggested by the applicant. Its fundamental position is that the Assessment Report was handed in an envelope to the applicant on the date in question. While I note that the Chief of Staff, in his March 2008 letter, directed that the applicant "be paraded by one of the Officers responsible for the completion of his Assessment Report and that the report be explained to him in detail", I also note that the Defence Forces has not contended at any time that the applicant was paraded and the report explained in November 2007. Similarly, I note that in a letter dated 20 November 2012 to the applicant, Brigadier General Michael Finn states that he "fully accepted" the ODF's conclusion that the applicant had not received a copy of his report until April 2008 and that there was no question of the applicant's good name or character being sullied in any way. However, I also note the Defence Forces' assertion that this is not the position of the Defence Forces, which it contends is as set out in the Chief of Staff's letter dated 27 November 2009 to the Minister. That letter sets out the Defence Forces' response to the Final Report of the ODF, and I note that it does not refer to the applicant's Assessment Report in any way.

This brings me to the report of the ODF. In her letter to the Chief of Staff dated 25 June 2012, the ODF stated that she found that the applicant had not received his Assessment Report, based on the absence of evidence submitted that he had, in fact, received it. I accept that there are circumstances where the absence of evidence to confirm that an action took place would be sufficient to find that, on balance, the action more likely than not did not take place, particularly where there is a requirement that the occurrence of the action be placed on record. An obvious example is the dispensation of drugs in a hospital. In this case, it has not been argued that there was a requirement to place on record the fact that the Assessment Report was given to the applicant. Accordingly, I do not accept that the absence of evidence to show that the applicant received the Assessment Report is sufficient for me to find, on balance, that he did not receive it.

In my view, the applicant has not demonstrated that, on the balance of probabilities, the statement that he received a copy of the Assessment Report on 23 November 2007 is incorrect, incomplete or misleading. As I have outlined above, this does not mean that I accept that he did, indeed, receive the Report on the date in question. Rather, it means that I do not consider that the applicant has discharged the onus upon him to satisfy me that the statement in question should be amended pursuant to section 17 of the FOI Act. Accordingly I find that the Defence Forces was justified in its decision to refuse to amend the report in question.

It is important to note that in all cases where a section 17 application is refused, the FOI Act requires the public body concerned to attach to the record concerned a copy of the application for amendment which will contain the details and contentions put forward by the applicant. In its submissions to this Office the Defence Forces has stated that a copy of the applicant's request to amend the Report is now attached to the Report and that this will leave any future reader of the Report in no doubt that the validity of the Report is contested by the applicant.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, as amended, I hereby affirm the decision of the Defence Forces.

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. Such an 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.

Stephen Rafferty
Senior Investigator