Case 98101. Candidate for Local Appointments Commission competition - reasons for decisions - whether "material interest" in a matter - application of section 18 - fresh questions asked after initial request.
The requester was a candidate in a competition organised by the Local Appointments Commission (LAC). She sought access to records relating to the interview and reasons for certain decisions made by the LAC in relation to the competition and interview. The interview was held after 21 April 1998. The LAC furnished certain records to the requester at initial decision stage and at internal review stage. Further records were furnished to her after she applied to the Information Commissioner for a review.
Insofar as the requester was seeking access to records under the Act, the Commissioner found her request had been complied with. He found that some of the reasons for decisions sought by the requester had been supplied to his satisfaction. However, he found that the requester had raised fresh questions both at internal review stage and in her application for a review to him. He stated that the appropriate way for her to proceed with those issues was by way of fresh application under section 18 of the Act. In relation to a request for reasons for the adoption of a particular marking scheme used in the competition, the Commissioner decided that the marking scheme applied to a wide class of persons of which the requester was a member and, as such, she did not have a material interest as required by section 18(5) of the Act. In such circumstances an individual candidate cannot require the LAC to give reasons for its decision to adopt a particular marking scheme.
Ms ABC was a candidate in the competition for Assistant Chief Nursing Officer. The competition was organised by the Local Appointments Commissioners (LAC). Ms ABC was called for interview in 1998. Ms ABC was not selected for appointment to the position.
Ms ABC made a request to the LAC under the Freedom of Information Act, 1997 (FOI) on 15 July 1998 seeking the following information abut her candidature.
"1. Marking system and scores achievable. Scores obtained at interview. 2. Criteria used in assessing personality, general suitability. Are there specific characteristics under the above? 3. Qualifications above base line. How are they assessed and what marks are allocated to each relevant qualification 4. Experience, what is relevant a) experience of acting in position. b) experience of acting in higher position. c) How is it weighted? 5. Position of medical person on interview board. Relevance of questions pertaining to nursing position applied for."
The LAC replied to this request by letter dated 5 August 1998. In withholding some of the information sought, the LAC relied on section 21(1)(b) and gave details of the factors in favour of disclosure and against disclosure it was taking into account in reaching its decision. Ms ABC sought an internal review of the decision in her letter of 14 August 1998 and the LAC duly replied. At internal review stage Ms ABC restated all her initial requests except request No. 5. She raised request No. 6 for the first time. Request No. 6 was "6) Specific reasons for not obtaining position." At that stage she was still seeking the information to Request No. 1 and Request No. 3 which she had not received in the initial decision. She clearly was not happy with the response she received to Request No. 2 and Request No. 4. A response to Request No. 3 was given at internal review and a response to Request No. 1 was given by subsequent letter of 23 October 1998. Ms ABC applied to this Office for a review of the decision in a letter of 24 September 1998. This letter was received by me on 2 October 1998.
Ms ABC made a submission to this Office dated 21 October 1998 in which she asked two questions: who assesses courses and their relevance to the position applied for and who decided that one course was more relevant than another to the position? She stated that she requested a review within the LAC but was not informed if one was carried out. She queried the basis they had for withholding the information she sought and stated that there was no accountability by the Commissioners and their agents. She repeated the requests which she had made at internal review stage. The LAC sent Ms ABC her scores and her record at interview on 23 October 1998. This was after her application for review to this Office. This Office sought clarification from Ms ABC as to whether she wished to proceed with the review. Ms ABC confirmed in a letter of 11 January 1999 that she wanted to proceed with the review.
I have reviewed the records provided by the LAC and it appears that Ms ABC has been given the records relating directly to her performance at the interview. It seems to me that Ms ABC's request insofar as it applies to records has been complied with. However, she states in her letter of 11 January that she wants a legible copy of the record of interview and assessment. The LAC has agreed to provide this.
It is clear that Ms ABC's request is not simply for records. Much of the request may amount to a request for reasons for decisions within the meaning of section 18. Under S.I. 519 of 1998 passed on 22 December 1998 a requirement was introduced that a request under section 18 of the FOI Act "shall be expressed to be made under that section". Ms ABC's request was not expressed to be under section 18. However, as the S.I. was not introduced at that stage, I find that it does not apply to Ms ABC's original request.
In her letter of 11 January 1999 Ms ABC states that although she received the scores obtained at interview, she did not receive "1) Breakdown of marks for qualifications above base line, or who accredits qualifications and their relevance to position applied for. 2) Criteria used in assessing personality and general suitability." It was clear that she was questioning her marks under the heading Administrative capacity, Personality and General Suitability" where she received 40 marks. The total marks available under this heading was 100 and the qualifying mark was 50. She queried how her marks in this section were unsatisfactory. She requested a review and also requested a breakdown of marks allocated under various headings. She also requested a legible copy of the record of interview and assessment.
The difficulty is that Ms ABC's request varied over time or, at the least, was clarified in a different way as time went on. It is clear from question 6 raised by her at internal review that she was really seeking reasons why she was not recommended for appointment to the position and her question at 2 was really a part of that greater question. Her question No. 2 was clarified in her letter of 11 January 1999 to indicate that what she was seeking was reasons for the fact that her marks under the heading Administrative capacity etc. were unsatisfactory or were below the qualifying mark. However, the intention behind the question was not clear initially. In the circumstances I have decided that I can only review the decisions made by the LAC in relation to the initial questions or requests in the form they were made on 15 July 1998. Further questions raised by her since then cannot fall within the terms of this review.
I summarise the initial request below and my findings regarding the LAC response in each case.
"1. Marking system and scores achievable. Scores obtained at interview."
The marking scheme was provided at initial decision stage. Ms ABC's individual scores were refused under section 21(1)(b) and were not provided until after the internal review and after she made the application to the Commissioner. Her scores and the record of her interview were provided on 23 October 1998.
I find that although Ms ABC's scores were only furnished to her after she had made her application for review, the LAC have now furnished the information sought by Ms ABC in this request. I find that the LAC should supply Ms ABC with a legible copy of the records and the LAC has agreed to do so.
"2. Criteria used in assessing personality, general suitability. Are there specific characteristics under the above?"
In its initial decision, the LAC stated that in assessing personality and general suitability, the board members took into account factors such as commitment, adaptability, interpersonal skills, leadership skills and communication skills. In her application for internal review Ms ABC re-framed the second part of this request to read "a) How are they assessed". On internal review the LAC provided further information stating that the board, would through their questioning, have sought evidence of the candidate's proficiency in the skills defined and have made a judgement on the relative merits of the candidates against the duties of the job described.
I find that the LAC has actually provided the information sought by Ms ABC in her original request. It is clear from Ms ABC's letter of 11 January 1999 to my Office that she is now seeking reasons for the actual marks she received under this heading. However, this was not clear before now and, strictly speaking, the LAC complied with the initial request. At internal review stage, Ms ABC merely repeated this question without clarifying it. In fairness to Ms ABC however, she was not in a position at that stage to know that she had not reached the qualifying mark under the particular heading in question. She did not receive her actual scores until after the decision made on internal review and after she had made her application for review to this Office. I am of the opinion that the appropriate way for Ms ABC to proceed with this issue is to make a fresh application under section 18 of the Act.
"3. Qualifications above base line. How are they assessed and what marks are allocated to each relevant qualification?"
In her application for internal review, Ms ABC seems to have re-framed this request as follows "3) How many marks are allocated to each relevant qualification. Ms Ryan (internal reviewer) made no reference to point 3 of my request". At initial decision stage this was not provided. However, on internal review the LAC furnished her with the scoring scheme used by the interview board for additional qualifications. Ms ABC appeared to be also seeking information on how the qualifications or courses are assessed.
In her submission to this Office of 21 October 1998 Ms ABC queried the points allowed for certain courses and queried who assesses the courses and their relevance to the position applied for. She appears to be seeking reasons for the decision to allocate the specific points for the courses in question and it is possible to read this question into her initial request. Therefore, this is in the nature of a section 18 request.
Section 18(1) requires that the person making the request must be affected by the act of the public body and have a "material interest in a matter affected by the act or to which it relates". Material interest is defined in section 18(5) as follows:
(5) For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.
In this particular case, the scoring scheme used covers some 15 different qualifications and would apply to a wide class of persons of which Ms ABC would be a member. The scoring scheme applies equally to all persons who are members of that class and who applied for the job. There was a total of 117 candidates for the job, 64 of whom were shortlisted for interview (including Ms ABC). I find that in such circumstances an individual candidate cannot require the LAC to give reasons for its decision to adopt a particular marking scheme or to give findings on any material issue of fact under section 18. The LAC have explained, as is normal in competitions of this kind, that the additional marks to be allocated over the minimum qualifications under the heading "Qualifications Psychiatric Nursing and other related Qualifications" is decided by the interview board under the guidance of the Commission representative who will have regard to consistency of approach with previous competitions.
"4. Experience, what is relevant a) experience of acting in position. b) experience of acting in higher position. c) How is it weighted?"
In its initial decision, the LAC stated that the guidelines given to interview boards state that preference should not be given to candidates "acting" in vacant positions over candidates with similar experience gained elsewhere.
On internal review, it provided more information stating that the boards were of the view that the post required a mix of psychiatric nursing experience, sound knowledge of psychiatric nursing practice and skill in administrative procedure. Whilst the board did not make specific provision for the award of marks in relation to experience of acting in a higher position, it would be normal practice for the board to make judgements on the value derived from all relevant experience, including experience of acting in a more senior position, in reaching a decision on marks to be awarded.
It is not clear to me that this request is strictly within section 18 of the Act. However, even accepting that it is, I consider the LAC response to be an adequate statement of reasons for the purpose of the section.
"5. Position of medical person on interview board. Relevance of questions pertaining to nursing position applied for."
The LAC stated that Dr. Joan Daly, the medical person on the board, is a consultant psychiatrist with the South Eastern Health Board. Dr. Daly's questioning was designed to assess candidates' knowledge of the broader aspects of mental health. Ms ABC did not raise this issue again in her application for internal review, so I have assumed that she was satisfied with the initial response she received.
The above 5 requests were made by Ms ABC in her initial request. In her application for internal review she also asked for the specific reason for not obtaining the position. This question did not form part of her initial request. Whereas the LAC gave an answer to the question in its letter on internal review, it is not clear to me that they were responding to the question strictly within the terms of Freedom of Information Act. In view of the fact that this question was not part of Ms ABC's initial request, and arose, at least in part, from the information which she received following her initial request, I am satisfied that this additional question should not be considered by me as part of this review.
Having carried out a full review of the decision of the LAC and having considered the arguments put forward, I consider that Ms ABC has been granted access to the records sought in her original request and has been given a statement by the LAC of the reasons for the acts, and of any findings of any material issues of fact made for the purposes of the acts, as sought in her original request of 15 July 1998.
Ms ABC has raised further issues since the time of her initial request. I am not reviewing the decision of the LAC with regard to those matters. Ms ABC is, of course, free to make a fresh request to the LAC regarding any matter not raised by her in her initial request of 15 July 1998.