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Introduction

The FOI Act confers a right on members of the public to seek amendment of records relating to personal information held by public bodies. Section 17 of the Act sets out the mechanism whereby such a record may be amended if it is incomplete, incorrect or misleading. This right parallels a provision in the Data Protection Act allowing for amendment of personal information held on computer, but differs in that it also applies to manual records.

Making the Decision

Requirements of the application: The decision maker must first be satisfied that the application meets the terms of section 17. It must therefore meet the following requirements:

It must be in writing (or such other form as may be determined)

It must specify the record concerned

It must specify the amendment required

It must include appropriate information in support of the application. It is not sufficient for the applicant to merely state that the record in question is incomplete, incorrect or misleading. He or she must provide sufficient evidence to back up the claim e.g. if factual information, such as birth date, is claimed to be incorrect, then evidence of the correct date must be supplied.

The amendment sought must relate to personal information of the individual submitting the application (or a representative properly authorised to act on his or her behalf). Please refer to the part of the manual dealing with section 28 for further information on the definition of "personal information".

In addition, draft regulations are currently under consideration with a view to providing:

that applications under section 17 should state that they are made under the FOI Act

the attention of persons should be drawn to the FOI Act where it would be more beneficial to them to submit their request under the Act

the public body should follow the same procedures in relation to an application under section 17 as apply with an FOI request e.g. acknowledgement requirements, etc.

What time limits apply? A decision must be made on the application within 4 weeks of receipt by the public body.

Is the amendment appropriate? The key step in the decision making process is to consider if the information in question is incomplete, incorrect or misleading:

Incomplete - Information may be incomplete if it does not adequately deal with the relevant facts and circumstances.

Incorrect - Information that is wrongly recorded, based on a mistake of fact or without proper regard to the evidence in a particular case may be incorrect. Precedent abroad suggests ‘incorrect’ to mean "not in conformity with a recognised standard, faulty, not in accordance with fact, erroneous, inaccurate" (Leverett v Australian Telecommunications Commission (1985) 8 ALN N135)

Misleading - Information can be said to be misleading if it could lead a person reading it to take a mistaken meaning from it. It may also be misleading if the language or terminology used might have particular meaning to a specialist or professional but convey an alternative meaning to the ordinary reader. The word was interpreted abroad to mean "leading astray, causing to go wrong, giving the wrong impression" (Re. Page and the Director-General of Social Security) (1984)6ALN N171)

Procedures for amending records relating to personal information

Where a public body agrees to amend a record relating to personal information, it may, at its discretion, avail of any of the three options outlined in section 17:

alter the record so as to make the information complete, correct or not misleading, as may be appropriate

add 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

delete the information from the record

Guidance is not provided in the FOI Act itself as to the criteria on which decisions on amendment are to be made. In processing an application for amendment the decision maker should:

firstly consider the level of proof supplied by the applicant in support of his or her application, and

secondly, acquaint him or herself fully with the context in which s/he is making the decision. This will include consultation with colleagues, perusal of the relevant files, familiarisation with the details of any scheme, etc. associated with the matter.

The decision maker should always be aware of the possible consequences of any amendment sought e.g. if the granting of the amendment may be pivotal to the conferring of a benefit or privilege on the applicant.

Care should be taken to ensure an appropriate level of proof from the applicant. The decision maker needs to be satisfied, on the balance of probability, that the requested amendment is reasonable, having regard to the material presented by the applicant and the information available to the decision maker from the organisation’s files.

Procedure for amendment:

In considering the appropriate form of amendment, the decision maker should have regard to:

the nature of the amendment proposed

the form in which the information is stored i.e. manually or electronically

the physical condition of the record

the desirability of maintaining the historical accuracy of the original record, having regard to the nature of the amendment sought

Alter the record - The incorrect record may be amended by putting a line through the incorrect information and writing "amended under FOI - to be disregarded" alongside. The correct information should be included on the same page, where practicable or, if not, then on a new page with appropriate cross-references. The advantage of simply striking through the original record is that the historical accuracy of the record is maintained and the nature of the amendment sought and made is clearly shown.

Adding to the record a statement - Where the amendment sought requires the correction of several lines or paragraphs, it may be preferable to add a statement to the record indicating the respects in which the body is satisfied that the information is incomplete, incorrect or misleading. In that case, the original record should be clearly annotated indicating that the statement of amendment exists. This form of amendment may also be preferable, in the case of many electronic records, where the format in which the information is stored does not readily lend itself to significant amendment or annotation. The electronic version of the record should be cross-referenced to indicate the existence of the amending statement and its location.

Delete the information from the record - While section 17 provides for deletion of information from a record, it is preferable, where practicable, to preserve the integrity of the original record. Deletion of information may leave gaps in the record and make other documents and events on the file inexplicable in the light of the deletion. Information should only be removed from a record where the other options for amendment are not practicable, and the decision maker believes that there is justification for amendment in that form. Where information is deleted from a record, a note should be made on the record clearly indicating that a portion of the record was "deleted under FOI".

In all cases, the following steps should be taken following amendment of a record:

The applicant should be notified of the amendment and the manner of amendment within 4 weeks of the receipt of the request. The most convenient means of satisfying the applicant as to the adequacy of the amendment made would be to give a copy of the amended record to the applicant

Any administrative action which may be required as a consequence of the amendment, should be communicated to the appropriate staff or section having responsibility for the matter in the organisation. The decision maker will previously have consulted with these staff prior to making the decision to grant the request for amendment.

A copy of the evidence provided in support of the application should be placed on the applicant’s file(s) with appropriate cross-references to the amended application

Ÿ The Act requires that, where a record is amended pursuant to section 17, the public body concerned shall take all reasonable steps to notify of the amendment -

any person to whom access to the record was granted under the FOI Act, and

any other public body to whom a copy of the record was given

during the previous twelve month period.

What amendments are likely to be sought? The requested amendment may relate to either:

a record of factual information

a record of opinion, advice or recommendation

Requests for amendment of factual information:

Many requests for amendment will relate to personal information which is factual in nature e.g. date of birth, income level, marital status, address, educational record, etc. Where factual information is in contention, the applicant should be able to provide documentary evidence in support of his or her claim. Where the decision maker is satisfied that the request for amendment is reasonable and has verified the evidence supplied, he or she should proceed to consider the appropriate form of amendment to the record.

Requests for amendment of opinions

Applicants may also seek correction of records containing opinions of other persons about the applicant.

Applicants, in seeking amendment to opinions on file, may provide contradictory opinions from other professionals in the same field in support of their claim e.g. opinions of professional persons such as doctors. In most cases, the record on file will reflect the bona fide views that the person held at the time the record was created. The right to amendment should not necessarily prompt a review of a decision previously made. Rather it allows a mechanism to:

check that the opinion, as recorded, is correct in terms of representing accurately the views of the persons involved, and

check that any contrary views known to the public body are also recorded.

Amendment of records should be undertaken on the basis of good reasons, supported by evidence. In this regard, it may be helpful to consider, where the original opinion appears incorrect, etc., whether this was based on a mistake of fact or on misconceptions.

While the Act does not provide for formal consultation procedures in relation to amendment of personal information, a decision maker should always, where practicable, consult informally with the original author of the record, where he or she is contemplating amendment of a record

Where a decision maker is agreeable to amendment of a record containing opinions, the most appropriate form of amendment may be the addition of a statement giving details of the contrary opinion, with appropriate cross-reference to the earlier record.

Refusal to grant an application for amendment

If the decision maker refuses to grant a request for amendment, he or she should take the following steps:

notify the applicant, within 4 weeks, of the decision to refuse the application and state why.

include in the notification, particulars of the applicants rights of review, the procedures for exercising those rights and the relevant time limits

attach to the record concerned, the application or a copy of it and an indication that amendment has been refused. Where that is not practicable, for example, if the record is held on computer, a notation should be added to the record indicating that the application has been made. This requirement does not apply where the application is defamatory or the alternations would be unnecessarily voluminous.

When preparing a notice of decision under section 17, you are not required to include any information which may be exempt under the Act. You may also apply the ‘refusal to confirm or deny provision" where it is appropriate to do so.

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