Mr X and Defence Forces

• Jurisdiction: Ireland
• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 17 May 2021
• Case Outcome: The Senior Investigator affirmed the decision of the Defence Forces to refuse to amend the record.
• Court: Information Commission
• Respondent: Defence Forces
• Record Number: OIC-105064-M1P0W3

Whether the Defence Forces was justified in refusing to amend information contained in the applicant’s 2017 performance appraisal in the manner sought by the applicant on the basis of section 9 of the FOI Act

17 May 2021

Background

The applicant is a member of the Defence Forces. For the year 2017 he received a negative performance appraisal by a named Comdt. In the performance appraisal the Comdt. stated that the applicant “has put in various reports and letters to and through me” which the Comdt. viewed somewhat negatively. The applicant previously made two FOI requests to the Defence Forces relating to the performance appraisal and requested the “various reports and letters” referenced by the named Comdt. One of those requests was the subject of a review by to this Office, case OIC-96871 refers. In that case, I found that the Defence Forces had taken all reasonable steps to locate the records referenced in the statement and that it was justified in refusing, under section 15(1)(a) of the Act, access to any further records on the ground that they could not be found or do not exist.

On 23 November 2020, the applicant submitted an application under section 9 of the Act for the removal of the specific statement from his 2017 performance appraisal. He also made a request for access to records which does not form part of this review.

On 28 January 2021, the Defence Forces refused to amend the record on the ground that it did not consider the statement to be incorrect, incomplete or misleading. On 3 February 2021, the applicant sought an internal review of the refusal of his application for amendment. On 4 March 2021, the Defence Forces affirmed its original decision. On 10 March 2021, the applicant sought a review by this Office of the Defence Force’s decision.

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

Scope of the Review

This review is concerned solely with whether the Defence Forces was justified in its decision to refuse the application for amendment of part of the applicant’s 2017 performance appraisal under section 9 of the FOI Act.

Analysis and Findings

Section 9 of the FOI Act provides for a right of amendment of incomplete, incorrect, or misleading personal information in a record held by an FOI body. 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...