Whether the HSE was justified in refusing to amend the applicant-�s annual leave records under section 9 of the FOI Act

11 February 2020

Background

The applicant in this case is in dispute with the HSE as his employer in relation to his annual leave entitlements. In June 2019, the HSE agreed that additional annual leave would be added to his 2019/2020 allocation in lieu of public holidays in previous years. On 22 June 2019, the applicant subsequently requested that additional leave hours be added due to a number of issues arising and based on his calculations. On 25 June 2019, he submitted an application under the FOI Act for the amendment of his annual leave records from 2014 to the date of the request. He attached details of his own leave calculations for the period in the form of hours due and taken.

On 2 August, he sought an internal review of the deemed refusal of his application for amendment. The HSE issued a first instance decision on 30 August 2019, wherein it refused the application for amendment.

On 6 September 2019, the applicant sought a review by this Office of the HSE-�s decision on the ground that he had not received an internal review decision on his application for amendment. Following correspondence with this Office, the HSE issued its effective position on the application on 8 October 2019. It stated that the applicant-�s leave records had been amended with -�the agreed additional hours-� that the HSE had agreed would be added in lieu of previous public holidays.

By letter dated 23 October 2019, the applicant indicated that the HSE-�s correspondence of 8 October 2019 merely clarified one aspect of his leave and that he continued to seek the amendment of his leave records based on his own calculations of hours due.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the communications between the parties, as above, and those between this Office and the parties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Analysis and Findings

Section 9 of the FOI Act provides for the amendment of incomplete, incorrect or misleading personal information in records held by an FOI body. An applicant seeking amendment of records should show, first, that that the information concerned constitutes personal information and, second, that the information is incomplete, incorrect or misleading.

Section 9(2)(b) requires that an application for amendment "shall, in so far as is practicable ... include appropriate information in support of the application." The Act is silent on the question of where the onus of proof lies in section 9 cases. This Office considers that in the absence of any express statement in the Act, the onus of proof lies on the applicant as the party asserting that the information is incomplete, incorrect or misleading.

The Act is also silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required in such cases is that of "the balance of probabilities". It follows that an applicant, seeking to exercise the right of amendment under section 9, must show this Office that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

Furthermore, this Office does not see its role arising from section 9 as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, we 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.

On two occasions during the course of the review, the applicant was invited to make a submission in support of his application for a review of the HSE-�s refusal of his application for amendment of his leave records. On the second occasion, he was also provided with an explanation of our role and approach to section 9 applications.

No such submission has been received to date. As I have outlined above, the applicant included details of his calculation of additional leave hours he believes he is due with his application for amendment. However, he has provided no additional information to support those calculations. In the circumstances, I find that the applicant has not shown, on the balance of probabilities, that the information contained within his annual leave records is incomplete, incorrect or misleading. Accordingly, I find that the HSE was justified in refusing to amend the records in question.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse to amend the applicant-�s annual leave records under section 9 of the FOI Act, on the ground that he has not shown that the information that is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.

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.

Stephen Rafferty

Senior Investigator