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Mr X and the Houses of the Oireachtas Service (FOI Act 2014)

Case Number: 160383

Whether the Service was justified under section 30(1)(a) of the FOI Act in its decision to refuse access to a record relating to discussions between members of a selection board on the subject of marking schemes for a shortlisting process, on the ground that its release would prejudice the effectiveness of its recruitment competitions

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 20 January 2016 the applicant sought from the Service records broadly relating to a specified recruitment competition and related review. The Service issued its decision on 10 February 2016, granting access in full to 4 records, granting access to two records subject to redactions of personal information under section 37 of the FOI Act, refusing access in part to one record and refusing access to one record outright, both under section 30 of the FOI Act. On 25 February 2016 the applicant sought an internal review of the Service's decision. The Service issued its internal review decision on 19 March 2016, in which it affirmed the original decision. The applicant sought a review by this Office of the Service's decision on 15 September 2016.

In conducting this review I have had regard to the Service's communications with the applicant as set out above and to the communications between this Office and both the applicant and the Service on the matter.

Scope of Review

The applicant, made clear in his application to this office that only the records identified as R1049.1 and R1049.4 are at issue in this review. On foot of discussions with this Office, record R1049.1 was released in full to the applicant in the course of this review.

The remaining record contains the personal information of a member of the board who is not currently a serving public servant, in particular his address. The applicant indicated in the course of this review that he is satisfied to take that individual's personal information out of the scope of this review.

Therefore, this review is concerned solely with the question of whether the Service was justified under section 30(1)(a) of the FOI Act in its decision to refuse access to the record identified with the reference number R1049.4 on the basis that its release would prejudice the effectiveness of its recruitment competitions.

Analysis and Findings

Section 30(1) of the FOI Act provides that:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or the methods employed for the conduct thereof".

Where an FOI body wishes to rely on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. The body must show that there are adequate grounds for its expectation. It should show how release of the record could reasonably be expected to give rise to the harm envisaged. It must then go on to consider the public interest test under section 30(2).

The record at issue in this review consists of a chain of emails between the Service's HR unit and members of the interview board for a particular recruitment competition, in which they discussed a proposed marking scheme for the shortlisting of candidates. I accept that this process can be classified as a test or examination for the purposes of section 30(1)(a).

The Service submitted that the release of the record would provide the applicant with a "level of detail of the negotiations and considerations of a board in approaching the shortlisting process that would not be available to other candidates." It claims that this would provide the applicant with an unfair advantage in any future recruitment competitions. It is apparent on the face of the record that the discussions relate very specifically to the requirements of the position to be filled in that particular recruitment competition. I fail to see how the applicant's knowledge of the manner in which a particular board approached the shortlisting process in a particular competition would provide him with an unfair advantage over other candidates who did not have such knowledge, nor has the Service explained how such an advantage might accrue.

The Service also claimed that the release of the records would prejudice its future recruitment processes, as it might lead to a reluctance on the part of staff and external board members to sit on interview boards, or might affect boards' willingness to engage in candid and frank discussions in relation to the process. I do not accept this argument. It does not seem to me that the release in this case of details relating to the discussions around and rationale for the fixing marking schemes would dissuade potential board members from participation in future. Nor do I accept that the prospect of potential release under the FOI Act would prevent interview board members from communicating in an professional and open manner.

Accordingly, having carefully considered the matter, and having regard to the provisions of section 22(12)(b) of the Act which provide that a decision to refuse a request shall be presumed not to have been justified unless the body can satisfy this Office that its decision was justified, I find that the Service was not justified in refusing access to the record under section 30(1)(a) of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the Service's decision to refuse access to the record at issue and direct the release of that record subject to the redaction of the email address and home address of the external board member.

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