Case 98020

Access sought to notes of an interview board - whether release would have significant adverse effect on recruitment function - application of section 21(1)(b) - whether public interest better served by release - application of section 21(2).

Case Summary

Facts

The requester failed at interview for the post of Clerical Assistant in the civil service and sought access to all personal information held in relation to his application. The Office of the Civil Service Commissioners (CSC) refused access and claimed exemption under section 21(1)(b). It was argued that members of interview boards understood their deliberations to be confidential and would be unlikely to serve in the future if such deliberations were to be subsequently made available to candidates. It was also argued that if the interview process was constantly open to challenge this would have a significant adverse effect on the CSC in its management of the recruitment function.

Decision

The Commissioner decided that the requester was, subject to certain minor restrictions, entitled to full access to the records associated with the proceedings of the interview board and its assessment of the applicant. The Commissioner found that no evidence had been offered in support of the argument that prospective interview board members would be deterred from serving to such an extent that this would have a significant adverse effect on the ability of the CSC to find suitable interviewers. The Commissioner was not convinced that the likelihood or scale of potential challenges was such as to significantly affect the ability to recruit effectively. Although it was not strictly necessary to do so (as he did not uphold the section 21(1)(b) claim), the Commissioner considered, but rejected, the public interest arguments against release which were put to him.

Date of Decision: 12.10.1998

DECISION

Background:

On 11 May 1998 Mr AAF made an application, under the Freedom of Information (FOI) Act, to the Office of the Civil Service and Local Appointments Commissioners (CSLAC) seeking to discover the reasons why he failed at interview for the post of Clerical Assistant in the Civil Service. Mr AAF also sought access to "all personal information held on record, regarding myself under the Act."

The CSLAC replied to Mr AAF on 5 June indicating that it had identified a total of seven records relating to Mr AAF's application as follows :

1. Mr AAF's application form,
2. Record of the proceedings at interview with assessment of the Board,
3. Marking sheet with marks awarded by the Board,
4. Notification of the outcome of the application,
5. Letter from Mr AAF requesting a review of the interview decision,
6. Further letter from Mr AAF requesting a review of the decision and the CSLAC reply,
7. Letter from the Ombudsman's Office making enquiries about Mr AAF's case.

The CSLAC released the items listed at 1, 4, 5, 6 and 7 above to Mr AAF but also claimed exemption from release under Section 21(1)(b) of the FOI Act in relation to items 2 and 3 i.e. the record of the proceedings at interview and the marking sheet with marks awarded by the Board.

Mr AAF wrote to the CSLAC on 8 June 1998 seeking an internal review of this decision. The CSLAC replied on 18 June notifying him of its decision on internal review to release details of the marks awarded at interview but to continue to claim exemption under Section 21(1)(b) of the FOI Act in relation to the proceedings and assessment of the Board. Mr AAF applied to this Office for a review of that decision on 22 June and, having considered the matter, I decided to grant his application for review.

In a submission dated 13 July, Mr AAF quoted the results of several tests and examinations he had undertaken in recent years, referred to good references which he holds, and outlined his career to date. Having been supplied with the marks awarded to him by the interview Board following internal review and in the context of his education and employment history, Mr AAF expressed himself "amazed and dumbfounded" to be awarded such low marks in the various categories considered by the Board. He further stated "These marks ought to be stood over with accompanying remarks."

The CSLAC asked that I take the concerns outlined in its letter to Mr AAF of 18 June into account for the purposes of my review. This letter outlined the following points against disclosure which had been considered by the CSLAC :

• The Commissioners' ability to discharge their statutory responsibility to conduct interview programmes is dependent on the services of others acting as Board Members who in the past undertook this duty on the basis that the record of their deliberations was confidential,
• This aspect of the management of the Commissioners' operations could be placed in jeopardy if Board Members refuse to serve because the details of their deliberations are accessible by candidates,
• The records of a Board's deliberations containing the actual comments of Board Members could be used to challenge the process and invoke litigation,
• Litigation, or the threat of same, could halt the recruitment process, divert resources from recruitment work, incur the state in considerable expense and undermine confidence in the Commissioners' operations,
• All recruitment and selection conducted by the Commissioners includes an interview process. If this process is constantly at risk from, or open to challenge, it would have a significant adverse effect on the Commissioners in their management of their operations,
• The Commissioners have a review process in place which provides that they review all decisions to ensure that they are based on fairness, merit and equality.

In addition to claiming exemption from the release of the records relating to the proceedings and assessment of the Board on the basis of Section 21(1)(b) of the FOI Act, the CSLAC also advised Mr AAF in that letter of a number of public interest factors in favour of and against release taken into consideration in arriving at the decision to refuse access. The CSLAC indicated that in its opinion the public interest factors against disclosure outweighed those in favour.

The public interest factors in favour of disclosure of the record of proceedings and assessment of the interview Board considered by the CSLAC were as follows :

1. "Right of public to have access to information."
2. "Disclosure will reveal reasons for decisions."
3. "Accountability of Commissioners and their agents."
4. "Scrutiny of the decision making process."
5. "Openness and transparency of the selection process."
6. "Public confidence in Civil Service recruitment and selection process."
7. "Right of private individuals to access information which establishes a cause of action."

The public interest factors against disclosure cited by the CSLAC were as follows :

1. "Disclosure would damage the Commissioners' ability to manage their recruitment function."
2. "Need to preserve confidentiality having regard to the subject matter i.e. personal comments of the Board members being their individual records and assessments and the need to protect same from challenge, including legal challenge."
3. "Disclosure of records would put at risk future service by Board members."
4. "Disclosure would impair the integrity and viability of the decision making process to a significant degree without countervailing benefit to the public."
5. "Disclosure would damage the Commissioners' ability to maintain the confidentiality of their deliberative process in making selection decisions."
6. "Broader Civil Service recruitment and selection interests must be considered as distinct from those of yourself as the requester."
7. "Public interest in the Commissioners being able to make informed decisions, based on individual records and assessments of their agents in carrying out their recruitment functions."
8. "The information is available in synopsis form on request."

In reviewing this case, I have examined all of the records supplied to me by the CSLAC associated with Mr AAF's job application (listed at items 1 to 7 above) together with the correspondence which passed between Mr AAF and the CSLAC in relation to his FOI application.

The only relevant documents to which Mr AAF has not as yet been granted access are :

1. a partial copy of his application form containing some pencilled comments of an interview board member on the reverse,
2. one sheet from the list of candidates, which includes Mr AAF's name, who were to be interviewed and which contains various pencilled ticks, crosses and marks awarded, and
3. one sheet from the original marking sheets, again completed in pencil, containing Mr AAF's and other candidates' marks.
4. In addition to these documents, Mr AAF's original application form shows various pencil marks. It is not clear as to whether he has been granted access to this version.

Submissions

Findings

In refusing to grant access to the records of the proceedings at interview, the CSLAC has relied on Section 21(1)(b). In so relying, it argues that the release of these records could reasonably be expected to have a significant adverse effect on the performance of its "functions relating to management". As is apparent from the CSLAC arguments detailed above, one of its concerns is that its function of finding persons willing to serve on interview boards might be affected. In a more general way, it argues that more disclosure of records of the kind sought in this case could lead to more challenges to the recruitment process, resulting in a diversion of resources from the recruitment process and adversely affecting the ability of CSLAC to manage the process.

It is by no means clear that prospective interview board members would be deterred by the fact that their records of the proceedings and assessments would be available to candidates. It is possible, of course, that some prospective interviewers would be deterred, but no evidence was offered that this could be expected to happen to such a degree as to have a significant adverse effect on the ability of the CSLAC to find suitable interviewers. In the case of interviews for positions such as Clerical Assistant, it is reasonable to assume that the pool of prospective interviewers is fairly wide. In my view, this makes it even less likely that the CSLAC's ability to find suitable interviewers for such positions in the future will be affected to any significant degree.

As regards the possibility of future challenges to recruitment decisions, it is true that disclosure of the proceedings at interview may make it more likely in the future that some unsuccessful candidates will challenge the result. However, I am not convinced that either the likelihood or the scale of such challenges in the case of competitions such as that for Clerical Assistant, is such as to significantly affect the ability of the CSLAC to recruit effectively.

If I were to uphold a decision by the CSLAC to refuse access in this case on the grounds that Section 21(1)(b) applies, I would have to be satisfied that the release can reasonably be expected to have a significant, adverse effect on the performance of at least one of its functions relating to management. In cases of this kind, the onus rests on the public body to show to the satisfaction of the Information Commissioner that the decision to refuse access was justified (Section34(12) FOI Act). In the present case, I hold that the CSLAC has not discharged that burden of proof.

The CSLAC also gave consideration to whether, in accordance with Section 21(2), the public interest would, on balance, be better served by granting the request than by refusing it on the grounds that Section 21(1)(b) applied, and concluded that the public interest would not be so served.

Since I am not upholding the decision that Section 21(1)(b) applies, it is not strictly necessary to consider the public interest argument in this case. However, for the sake of completeness and because many of the points made by the CSLAC could be of relevance in other cases, I have dealt with these arguments below.

CSLAC claims a number of public interest factors in support of its decision to refuse to release. One argument is that the records created at interview are the personal records of the interviewers and that the release of any recorded comments could lead to the views of the Board members being challenged both generally and at law. Persons who serve on interview boards do so either as agents of the CSLAC or in the performance of their own functions. Records created in the course of an interview cannot therefore be considered to contain personal information about the board member, but rather, in accordance with Section 2 of the Act, personal information about the interviewee. In addition the FOI Act is clear that the motivation of the requester in seeking access to records shall be disregarded. Therefore, I find that I must reject these arguments.

Further arguments in relation to the "integrity and viability" of the decision making process, the "confidentiality" of that process, the "making of informed decisions" and "broader Civil Service recruitment and selection interests" have not been developed in any detail and the public interest is not demonstrated. The argument that the information which Mr AAF seeks is available in synopsis form raises the question as to why he, therefore, cannot see the records upon which any such synopsis would be based and how the release of those records would be detrimental to the public interest. I must again reject these arguments.

Decision

Having carried out a full review of the decision of the Office of the Civil Service and Local Appointments Commissioners, and having considered the arguments put forward both by Mr AAF and that Office, I consider that Mr AAF is, subject to certain minor restrictions, entitled to full access to the records associated with the proceedings of the interview Board and its assessment. Therefore, I direct that Mr AAF be offered full access to the following records :

1. the partial copy of his application form containing pencilled comments of an interview Board member on the reverse,
2. that sheet from the list of candidates who were to be interviewed, which includes Mr AAF's name, and which contains various pencilled marks entered by the interview board including ticks, crosses and marks awarded, and
3. that sheet from the original marking sheets, again completed in pencil by the interview board, containing the marks awarded to Mr AAF and other candidates.
4. Mr AAF's original application form containing the pencil marks of a Board member.

With a view to protecting the identity of, rather than the marks awarded to, any other candidate named on the documents listed above, the access offered to Mr AFF is to be restricted only to the extent that the names of such candidates are to be deleted.

Information Commissioner

12 October 1998