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Mr X and the Public Appointments Service (FOI Act 2014)

Case Number: 150442

Whether the PAS was justified in refusing access to certain records concerning two job applications made by the applicant

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

Background

On 22 August 2015, the applicant made an FOI request to the PAS. The request referred to two separate job competitions and, at point "C", it referred to "any correspondence" containing a particular phrase that referred to the applicant and others, which the applicant said he understood to be stamped with a certain date. The applicant said he was making a "[r]equest under [the FOI Act] for both ... competitions and any other matter pertaining to me. I request all data concerning me that you may (sic) on me in relation to any of the above or other matters."

The sequence of events from here on is somewhat confusing. It appears that, on 28 August 2015, the PAS asked the applicant to clarify if he wanted to obtain, under FOI, certain records that had already been provided to him outside of FOI earlier in the year. The letter also asked "are there records, other than those released to (sic) earlier this year, outside of FOI?".

The applicant replied, on 31 August 2015, to the effect that he could not be expected to know what other records might exist. He also referred to a request for information that he had made "in a less formal way by email dated 25 March 2015". Amongst other requests in the March email, he had asked for "[c]opies of all emails and other records pertaining to the process - i.e. what [he] would get on foot of a FOI ... request". He said that he expected all correspondence concerning him "(i.e. copy of any correspondence to Minister, [another party], and Department etc., that concern [him]" to be released. He also said he expected "all copies of the selection rationale for the membership of the selection boards for the competitions, taking particular notice" of point C of his FOI request.

The PAS issued a decision on 18 September 2015, which noted that the applicant had "clarified and extended" his earlier FOI request. It released a number of records in full and in part, including parts of an anonymous letter (record 53) that contained the phrase referred to at point C of the FOI request. It withheld details, including the rest of the record 53, on the basis that they contained personal information about other parties (section 37 of the FOI Act refers). The PAS refused access to a number of other records on the basis that, as they concerned legal proceedings, they attracted legal professional privilege (section 31(1)(a) refers). It also told the applicant that it was not releasing records that were available to him via his "publicjobs" account.

The applicant sought an internal review in a letter received by the PAS on 29 September 2015. He said that record 53 should have been released to him in response to his request of 25 March 2015 and that the PAS should also have released to him all records associated with record 53. He reiterated his request for details of the selection rationale for the membership of the selection/interview boards and how the PAS "addressed the issue of the conflict of interest."

The PAS issued its internal review decision on 19 October 2015. It told the applicant that the request for information in his email of 25 March 2015 did not amount to a valid FOI request. Notwithstanding this, it said that the anonymous letter had had no relevance to the request made in that email and therefore had not been released on foot of it. It released further excerpts from record 53 as well as three additional, related, records. The PAS told the applicant that there was no record of the selection rationale for the membership of the selection boards. It referred to section 15(1)(a), and said that the details concerned could not have been listed in the schedule of records considered relevant to the decision. Finally, the PAS said that the request for details of how the PAS had "addressed the issue of the conflict of interest" was a new FOI request.

The applicant wrote a further letter to the PAS on 30 October 2015. He explained why he considered his request of 25 March 2015 to have been a valid FOI request and asked the PAS to "consider his request in that light." The PAS replied to the applicant on 16 November 2015, and reiterated that his email of 25 March 2015 was not considered to have been a formal FOI request and was therefore not capable of review.

The applicant sought a review by this Office of the PAS' decision on 20 December 2015. He referred to the request of August 2015 and to his having previously sought records in March 2015. During the review, the PAS agreed to provide the applicant with the records that were otherwise available to him via his "publicjobs" account. It also agreed to release some of the details that it had withheld under section 37, on the basis that the details concerned did not identify any individuals.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and the PAS and the applicant; and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

 

Scope of the Review

This review is confined to whether or not the PAS has justified its refusal to grant access to the remainder of the records it identified as relevant to the applicant's FOI request, as well as whether it has justified its contention that it has taken reasonable steps to look for all relevant records and/or that the records the applicant claims might exist do not exist.

 

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

The applicant's complaints about how his job applications, his FOI request or other requests for information have been handled by the PAS are not within the scope of this review. This Office has no remit in this review to examine, or make findings on, the adequacy of the PAS' procedures.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While the PAS has released details from certain records while redacting other parts, I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Findings

Searches for Further Records concerning the applicant's job applications

The applicant maintains that records of communications between the PAS and various other parties in relation to his job applications may exist. He also maintains that the PAS should have enquired with the interview board members as to whether or not any conflict of interest arose in respect of his candidacy. It is the PAS' position that it has taken reasonable steps to look for all records of relevance to the applicant's FOI request. It is, effectively, relying on section 15(1)(a) in refusing to release the records described by the applicant.

A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or that the requested records do not exist. I should explain that in any case involving section 15(1)(a) of the FOI Act, a decision from this Office may find that a public body has conducted reasonable searches, even where records that are known to exist cannot be found. In such circumstances this Office is unlikely to require a public body to continue searching indefinitely for those records. It is not normally this Office's function to search for records (a position that was upheld by the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA)).

The PAS provided this Office with details of the searches it says it carried out for records relevant to the applicant's request. The Investigator gave the applicant details of the searches, which I do not intend to repeat in this decision. He is of the view that I should direct further searches. However, I do not believe that the FOI Act requires me to direct the PAS to indefinitely carry out general searches for the records, or to search new locations, or types of files, without there being some reasonable possibility that they hold further records of relevance to the applicant's request. Having considered the details of the PAS' searches, I consider it to have justified its position that it has taken reasonable steps to look for relevant records.

Furthermore, the PAS contends that it would not, should not, and did not, create records of the type the applicant maintains it could have created in respect of his job applications. It says that it does not correspond with third parties in relation to a job candidate other than where he or she consents to such contacts. In so far as the PAS referred record 53 (the anonymous letter) to other parties, it has explained that these contacts concerned an entirely separate matter of the PAS' receipt of a letter containing allegations about promotions within a particular State body generally. It is the PAS' position that its Chief Executive decided that this letter should be forwarded to the relevant bodies with responsibility for the matters alleged. As the applicant is aware, the PAS says that this was done "in the public interest and had no connection with, or implication for, the candidature of any person for any post coming under the responsibility of the PAS".

While the applicant maintains that the PAS has a duty to enquire whether there are potential conflicts of interest between an interview board member and a candidate, as already explained it is not part of my role to investigate, or make findings on, the adequacy of its procedures in this respect. I see no basis to dispute the PAS' position that it did not create records of the sort that the applicant claims may have been created in his own case. For the avoidance of doubt, I would consider such records, if held, to fall within the scope of the request of 22 August 2015.

I find that section 15(1)(a) applies to any such additional records falling within the scope of the request.

General correspondence re interview board selection etc.
It may also still be the applicant's position, although this is not entirely clear, that the PAS should have considered for release all general correspondence between the PAS and the interview board members (such as their selection, independence, and so on). As will be clear from the following, I do not consider the applicant to have made a valid FOI request for such records in the first instance, and therefore the PAS' refusal of access to such records cannot be included in my review.

Firstly, I do not consider such records to be covered by the scope of the applicant's FOI request of 22 August 2015. In this regard, I note that the PAS' letter of 18 September 2015 indicated that it had proceeded to consider his "extended" request (presumably for records of the selection rationale for the members of the interview board), while the internal review decision cited section 15(1)(a) in relation to such records. Notwithstanding this, I accept the PAS' position, as put forward during this review, that it was reasonable to consider this request as seeking only records relating to the applicant. In other words, it is reasonable to consider the request as having sought all records relating to the applicant's own candidature in both competitions, as well as any record containing the particular phrase referred to in the request. It is not possible to subsequently extend the scope of an initial FOI request (although it remains open to the applicant to make a fresh FOI request for such records).

I should say here that the applicant was previously in correspondence with the PAS concerning his dissatisfaction with its handling of a selection process. In the course of exchanges with a named official in the PAS, he sent an email dated 25 March 2015 seeking certain information including "copies of all emails and other records pertaining to the process i.e. what I would get on foot of an FOI and Data Protection requests". I do not consider this to have been a valid FOI request.

On the face of it, the March email is a request to the PAS to provide the applicant, outside of FOI, with those records that he would have got if making a formal FOI request for such material. The fact that he asked for this information to be provided to him "tomorrow or early Friday" in the course of seeking a review of the selection process does not suggest that he truly intended this to be an FOI request, given that a public body has up to four weeks in which to make a first instance decision. The scheme of the FOI Act is such that it places strict requirements on FOI bodies as regards time limits and content of decisions. It also requires requesters to state that a request is being made under the Act and to adhere to statutory time limits for making review applications. It is, of course, common for individuals to request information from public bodies outside of the formal FOI regime and I consider that, in this case, the PAS correctly dealt with the email on that basis. The PAS says that its position is that the email of 25 March was never treated as an FOI request. I accept that the PAS' description of the email as an FOI request in an affidavit submitted in court proceedings involving the applicant was an error on its part. I understand the affidavit to have been prepared and lodged under time pressure, and that the matters before the Court were not concerned with the status of the March request for information. I not aware that the Court has made any finding on the status of the request concerned.

Records Considered to Attract Legal Professional Privilege
As noted already, the PAS refused access to a number of records on the basis that it believed they would be exempt from release under section 31(1)(a) of the FOI Act. The PAS confirmed that it did not consider the relevant records individually.

While, given the circumstances of their creation, many of the records concerned may well attract legal professional privilege, it is not appropriate to assume that this is the case without having regard to the content of each record concerned. Accordingly, I do not consider the PAS to have justified its refusal of those records to which it generally applied section 31(1)(a).

Although section 22(12)(b) allows me to direct the release of those records in such circumstances, I do not consider it appropriate to do so in this case. The records concerned might be exempt under the mandatory section 31(1)(a), and/or might affect the interests of third parties.

Accordingly, I have decided to annul the PAS' refusal of the records for which legal professional privilege is claimed, and I direct that the PAS undertake a fresh decision making process, having regard to the content of each such record.

Personal Information

Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record.

"Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential"

Section 2 goes on to list 14 examples of personal information, including "information relating to the employment or employment history of the individual" and "the views or opinions of another person about the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

I am constrained in the description I can give of the remaining details that the PAS withheld under section 37. However, they relate to applications made by other persons for the two job competitions, and their ensuing interviews. In so far as the remainder of record 53 is concerned, I am satisfied that all references to the applicant have been released and that the remainder of this record contains views, opinions and claims made by an anonymous party about persons other than the applicant.

I find all of the relevant details to be the personal information of parties other than the applicant, which I find to be exempt under section 37(1) of the FOI Act.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply.

Having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)

Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest

The Supreme Court judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(the "Rotunda case") outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. The Supreme Court has made it clear that, in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

The applicant has not made any arguments as to why the public interest might warrant release of the details at issue. That said, any interest a job applicant might have in obtaining all information relevant to the recruitment process(es) concerned is quite clearly a private interest.

While the applicant has not specifically argued that I should direct the release of the material at issue because of his dissatisfaction with how PAS conducted the overall recruitment processes, I will address such an argument for the sake of completeness. As already noted, I have no remit to consider, or make findings on, the adequacy of the PAS' procedures nor would it be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that a public body's processes may have been inadequate. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

In the case at hand, there is a public interest in establishing that the PAS carried out its functions in dealing with the applicant's job applications in a way that was consistent with the principles of natural and constitutional justice, as well as the right to privacy. This public interest has been served to some extent by the material released to date.

On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution).

When considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I accept that release of the details concerned would further enhance the public interest in openness and accountability in respect of the PAS' recruitment processes. However, I find that the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the PAS' decision. I affirm its decision under section 37 in respect of the parts of records withheld under this provision. I affirm its effective decision under section 15(1)(a) to refuse access to any further records within the scope of the FOI request of 22 August 2015 that the applicant contends might exist.

I annul its general application of section 31(1)(a) to the records for which legal professional privilege is claimed; I direct it to conduct a fresh decision making process in relation to those records and to inform the applicant of that decision in accordance with section 13 of the FOI Act. That decision is subject to the usual rights of internal and external review.

 

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.

 


Elizabeth Dolan
Senior Investigator