To the best of my knowledge - equivocal statements in law

gk5000

I think adding to the best of my knowledge to a statement makes it equivocal and not necessarily true.

As in - I have €65 v I have €65 to the best of my knowledge.

I found a document on titled “Best” Is Not Always Best When It Comes to Knowledge on the American Bar Association Website

https://www.americanbar.org/groups/real_property_trust_estate/publications/probate-property-magazine/2016/january_february_2016/2016_aba_rpte_pp_v30_1_article_levin_best_is_not_always_best_when_it_comes_to_knowledge/

It cites some cases from American law on this.

A number of cases have held that the phrase “to the best of my knowledge” when used in affidavits suggests a level of uncertainty. See Pelayo v. J.J. Lee Mgmt Co., Inc., 94 Cal. Rptr. 3d 502, 510 (Ct. App. 2009); Katelaris v. County of Orange, 112 Cal. Rptr. 2d 556 (Ct. App. 2001).

The Supreme Court of Alabama stated in Board of Water and Sewer Commissioners v. Spriggs, 146 So. 2d 872, 873 (Ala. 1962), that when an affiant uses the phrase “true to the best of his knowledge, information and belief,” the statement “means nothing ‘more than the affiant believes the allegations of the bill to be true, though he has neither knowledge nor information of their truth,’ and ‘an affidavit of belief in their truth simply amounts to nothing.’”

Other courts have found the phrase “best of knowledge” to be “equivocating” or “equivocal.” See Swanson v. Kraft, Inc., 775 P.2d 629, 638 (Idaho 1989) (Bistline, J., concurring); Portee v. State, 627 S.E.2d 63, 66 (Ga. Ct. App. 2006).

In Gayne v. Dual-Air, Inc., 600 S.W.2d 373, 375 (Tex. Civ. App. 1980), a Texas appellate court found appellant’s counter-affidavit based on the “best of his knowledge” to be equivocal and inadequate.

The Supreme Court of Vermont made this same point in Vermont Department of Social Welfare v. Berlin Development Associates, 411 A.2d 1353, 1355 (Vt. 1980), when it stated: “[T]he phrase ‘to the best of’ means ‘as far as I know, but I may not have all necessary information.’

Does anybody have any cases from Irish law on this?

or any opinions/discussion if to the best of my knowledge is equivocal.

Peregrinus

I don't know that you need a case on this; qualifying your evidence with "to the best of my knowledge" inherently introduces a degree of equivocality. But, depending on the nature of the testimony, that may be an appropriate or even necessary degree of equivocality.

Consider the following examples:

"I have never cheated on my spouse." I shouldn't have to qualify this with "to the best of my knowledge" since, if I had cheated on my spouse, I would know about it. So if I said "to the best of my knowledge, I have never cheated on my spouse", that would be very odd and you would doubt the reliability of my evidence. You would think I was being evasive.

"My spouse has never cheated on me." There, obviously, a qualification of some kind is appropriate and perhaps necessary, since it's in the nature of cheating that it might be concealed from me. So me stating this without qualification, as an absolute fact, would again lead you to think that I might not be a wholly reliable witness.

"To the best of my knowledge, my spouse has never cheated on me." Means: I don't know anything to suggest that my spouse has cheated on me.

"To be best of my knowledge and information, my spouse has ever cheated on me." Means: (a) I don't know anything to suggest that my spouse has cheated on me, and (b) nobody has said anything credible to me which, if true, would suggest that my spouse has cheated on me.

"To be best of my knowledge, information and belief, my spouse has ever cheated on me." Means: (a) I don't know anything to suggest that my spouse has cheated on me, and (b) nobody has said anything credible to me which, if true, would suggest that my spouse has cheated on me, and (c) based on my knowledge of my spouse, I do not think they would cheat on me.

All three versions are equivocal, some more equivocal than others. But, in the context, they don't suggest an untrustworthy or unreliable witness. Rather, they suggest a careful and conscientious witness, one who doesn't want to give evidence that they can't justify and stand over.

chunkylover4

https://www.boards.ie/discussion/comment/119973561#Comment_119973561

This is a good answer. It is a weight of evidence issue for the judge. In my view it is bad drafting if used to caveat a specific averment however all Affidavits will generally state something along the lines of:

I make this affidavit from my own knowledge, save where I state to the contrary. Where I depose to matters on information or belief, I believe them to be true.

In terms of oral evidence it's something that could be picked up on on cross-examination, context dependant.

Peregrinus

I wouldn't necessarily consider it poor drafting to use it in relation to a specific averment. Depending on the nature of the averment, it could be poor drafting not to include an appropriate qualification. Expressing an opinion with excessive certitude in relation to matter of which the witnesses knowledge is, in fact, limited or qualified is bad drafting.

chunkylover4

https://www.boards.ie/discussion/comment/119973697#Comment_119973697

This is context specific but better drafting would generally explain the reason why a fact is qualified. Any time I have seen the phrase to the best of my opinion, it exists to create a vague qualification. Drafting should be precise so the relevant averments should explain why something is qualified. If there is no need to do this for the averment in question then there is no need to use the phrase.

hullaballoo

If drafting is to be precise, then qualifying language can be necessary because as Peregrinus has said, saying "my wife has never cheated on me" is less accurate than "to the best of my knowledge, information and belief, my wife has never cheated on me". The latter statement is more accurate and more informative. I don't think there is a need for further explanation or reasons why, because the premises of the statement are clear.

As Peregrinus has also said, qualifying a statement of fact within your own knowledge is likely to be obfuscating and inaccurate.

gk5000

Thanks guys for your comments so far. I'll clarify a little. It's not an affidavit but a statement.

Consider an access request where a data controller is legally required to provide the correct data to a data subject.

So: Here is your data v's Here is your data to the best of my knowledge.

Which do you trust? and is it allowable to use equivocation in this case?

Jim_Hodge

https://www.boards.ie/discussion/comment/119977015#Comment_119977015

The equivocation in that instance is acceptable. The data controller is staying he is not aware of any other information.

gk5000

https://www.boards.ie/discussion/comment/119977132#Comment_119977132

Or they are saying they are not sure of the data they have given.

Jim_Hodge

https://www.boards.ie/discussion/comment/119977230#Comment_119977230

Not at all. TBH this reads like you want a particular statement to carry an element of uncertainty as it would suit your case. In that example he is honestly stating that it is all the data he is aware of.

gk5000

https://www.boards.ie/discussion/comment/119977467#Comment_119977467

Ok but it's not a question of the amount of data but a comment about a specific piece of data -

So: here is a specific piece of data v's here is a specific piece of data to the best of my knowledge.

Peregrinus

A data controller makes a statement saying "Here is the data I have about your address, to the best of my knowledge".

He is not saying "So far as I know, this is actually your address". He is saying "So far as I know, this is all the data we have about your address" — i.e. there could be other relevant data that his search didn't find because, e.g., it was entered under your maiden name, or there was a transcription error on data entry which means his search didn't find it, or the data has become corrupted, or whatever.

I'd read it as, he's covering his arse, basically. He has done his best to find data about your address; he is not intentionally concealing any data about your address; but he's not going to guarantee that there has been no error somewhere along the way that means there is data that he has missed.

Donald Trump

As long as you are not straying into opinion evidence (unless in an allowed exception)

chunkylover4

https://www.boards.ie/discussion/comment/119974848#Comment_119974848

My point related to the phrase rather than the qualification but I agree with you and Peregrinus otherwise!

chunkylover4

https://www.boards.ie/discussion/comment/119985862#Comment_119985862

This is acceptable as above but if it was the data controller swearing an Affidavit (not relevant to OP) then they should explain the steps they took to collate the data and comply with the request. OP as per the previous thread, there is no breach of the relevant data protection framework based off what you have said.

AndrewJRenko

https://www.boards.ie/discussion/comment/119977015#Comment_119977015

Is there a question about what are the reasonable expectations of the actions required of a data controller?

If they search for files or emails based on certain criteria, and the search didn't function as expected, are they expected to validate the search facility of Microsoft Outlook, for example? Are they expected to rifle through every desk in search of USB drives and search all of those? If they ask staff to respond with data, and some staff either lie or deliberately ignore or just miss that email, is the controller required to give an absolute assurance anyway?

Peregrinus

https://www.boards.ie/discussion/comment/119986738#Comment_119986738

That's a separate issue. If a data controller has occasion to make a sworn declaration about data that he holds — say, in the course of court proceedings — the declaration will say what he did to identify relevant data, and then say what data he found. Another party in the court case could certainly argue that he hasn't done enough to identify all relevant data, but that's not an issue over whether his declaration is satisfactory. The declaration needs to accurately describe the searches he did undertake and the data he found; that's all you can reasonably ask of it.

So far as I know there are no specific rules about what searches a data controller should undertake — it'll depend on what's reasonable in the circumstances, what's normal best practice in the trade, etc. There is nothing in the GDPR to require him to absolutely guarantee that his search techniques are infallible.

Victor

I suspect that many a lawyer would be well advised to use the phrase when the judge has dramatically more knowledge of the law / procedure / subject than the lawyer does.

Peregrinus

https://www.boards.ie/discussion/comment/119995453#Comment_119995453

Lawyers don't use the phrase at all. It's witnesses who use it, and they use it about the facts as to which they are giving evidence. It's rare for judges to know more about the facts than the witnesses; the witnesses are there precisely because they are the people with the best knowledge of the facts relevant to the dispute

Victor

Are you going to tell Lord Denham about cricket (in general, not the match you were in at the weekend)?

Peregrinus

Why would anybody be giving evidence about "cricket in general"?

(Perhaps slighlty more to the point: people making sworn declarations mostly do not know whether they will ever be used in court proceedings and do now know who, if they are used in court proceedings, the judge will be. Whether you need to qualify statements you make depends on the state of your knowledge, not on the state of the judge's knowledge, which you cannot predict.)

gk5000

As hullaballoo quotes Perengringus :" As Peregrinus has also said, qualifying a statement of fact within your own knowledge is likely to be obfuscating and inaccurate."

This I believe is the situation (or what I hope for). It's an un-sworn statement, regular email from the data controller about a specific identified document/email. This is pre-GDPR so the 1988 act applies which states:

"data controller” means a person who, either alone or with others, controls the contents and use of personal data;" and

"(2) For the purposes of this Act, data are inaccurate if they are incorrect or misleading as to any matter of fact"

I don't think this allows the data controller any latitude or would allow them use of the qualifying statements.

Peregrinus

You've posted a definition of data controller and what is in effect a definition of inaccurate.

So far, so good. But neither of the statements you have posted impose any obligation on the data controller. They don't, for example, say that the data controller is responsible for ensuring that the data is not inaccurate. They don't even say that the data controller should know whether the data is inaccurate or not.

So what exactly has the data controller said, and can you point to a provision of the Act that you think he has infringed by saying that?

gk5000

Tough crowd! 😀

2.—(1) A data controller shall, as respects personal data kept by him or her, comply with the following provisions:

(b) the data shall be accurate and complete and, where necessary, kept up to date,

Right of access. 4.—(1) (a)

(a) Subject to the provisions of this Act, an individual shall, if he or she so requests a data controller by notice in writing—

(iii) have communicated to him or her in intelligible form— (I) the information constituting any personal data of which that individual is the data subject, and

Above is the law together with the definitions of data controller and inaccurate previously - so I don't believe this allows the data controller to use equivocation when communicating the personal data.

Peregrinus

I think (so far as compliance with the Act is concerned) he can use as much equivocation as he likes. If the obligation is to furnish accurate and complete data, then he doesn't breach the obligation by furnishing data and saying "it may be inaccurate or incomplete"; he only breaches it if the data is, in fact, inaccurate or incomplete. If your complaint is that he breached the Act, it's up to you to show that the data is inaccurate or incomplete.

gk5000

Thanks for this, but:

Assume the onus is on the data controller, would this not be misleading and therefore breach the inaccurate data clause, or even the obligation to control the contents ? stating it may be inaccurate is hardly compatible with control.

Or worst case would this not weight heavily against them if it came to the balance of probabilities or even the reasonable man on the street?

Peregrinus

No. You haven't quoted exactly what the guy said in an actual full sentence, but if it's "errors and ommissions excepted' language this is just arse-covering.

It may be pointless. If your obligation is to keep complete and accurate data, and you provide the data under cover of a letter that says, in effect, "Here's the data I have. It may not be quite complete or wholly accurate" that doesn't absolve you of your obligation. If I can show that your data is, in fact, incomplete or inaccurate it will be no defence for you to say "Yes, I know. I warned you of that possibility."

But the fact that you have attempted pointlessly to cover your arse in this way doesn't in itself mean that your data is, in fact, incomplete or inaccurate. Your obligation is not to say that your data is complete and accurate; it's that it must actually be complete and accurate. But the flip side of this is that saying your data may not be complete and accurate isn't a breach of your obligation; your obligation is only breached if the data is not complete and accurate.

If you want to show that this guy has breached his obligation, you need to be pointing to gaps or inaccuracies in his data. Pointing to his arse-covering attempts doesn't do that.

gk5000

Ok, I think I'm slowly understanding the difference.

It's beyond arse covering - more deliberate - plausible deniability and willful or contrived ignorance just using "best of my knowledge".

They have carefully avoided even saying they have complied with my access request but seemingly the law does not require that. I have other ways to point to the gaps but means I have to go deeper into the details. Thanks.