Case 98023

Shortlisting board notes - whether release could reasonably be expected to prejudice the effectiveness of the test - application of section 21(1)(a).

Case Summary

Facts

The requester had applied to the Office of the Civil Service Commissioners (CSC) for the position of Senior Investigator in the Office of the Information Commissioner but was not shortlisted for the final stage of the competition. He sought access to the notes of the shortlisting board and other papers associated with the assessment of his application. Exemption from the release of the board's assessment was claimed under section 21(1)(a).

Decision

The Commissioner decided to affirm the decision of the CSC to refuse to release a briefing note given to the shortlisting board. He found that the briefing note did not contain personal information about any particular candidate and had been created prior to the commencement of the Act. The Commissioner decided to annul that part of the decision which refused access to a comment sheet and a summary results sheet prepared by the board. He found that no specific argument had been made that release of the records created by the board would impair the effectiveness of the selection process. Accordingly, he decided that the comment sheet and the summary results sheet should be released.

Date of Decision: 02.11.1998

DECISION

Background:

This case arises as a result of a request from Mr AAJ for a review of the decision of the Office of the Civil Service and Local Appointments Commission (CSLAC) to refuse him access to certain information in connection with his candidature for the post of Senior Investigator at the Office of the Information Commissioner.

On 30 April 1998 Mr AAJ applied to the CSLAC for "copies of the following records of my personal information held by the Civil Service Commission in relation to my candidature for the above mentioned competition :

• a copy of any notes appended by the Civil Service Commission, the Shortlisting Board or any other parties to my application form
• a copy of any papers assessing my suitability to be called for the interview stage of the competition
• a list of the names of the membership of the Shortlisting Board who decided which candidates would be called for the interview stage of the competition and their qualifications and competencies
• a copy of any records setting out the Board's methodology, processes or systems in relation to assessing my application
• a copy of any notes or papers prepared by the Shortlisting Board in relation to my personal experience, academic qualifications and the examples supplied by me of my personal competencies
• details of the weightings given to my experience, qualifications and the different competencies in relation to the assessment of my application
• a copy of the qualifying mark/score in order to get to the interview stage and a copy of my personal mark/score under each criteria
• the reasons why I was not deemed sufficiently qualified to be invited to the interview stage of the competition
• the reasons why the Shortlisting Board focused primarily on three skill areas given that candidates had to submit detailed examples of their competencies under eight skill areas
• a copy of the evidence considered by the Interview Board from "other sources" in relation to my application as stated in the Commission's letter to me dated 25 February 1998."

The CSLAC replied to Mr AAJ on 22 May enclosing a copy of his application form and advising him of the names of the members of the Shortlisting Board. The response also indicated that the members of the Board had been provided with "set guidelines for assessing the responses given in the Supplementary Questionnaire Section of the application form and the information supplied by applicants in relation to experience and qualifications. These guidelines are not being released as they relate to non personal information created before 21 April 1998." The position in relation to "other sources" was clarified as meaning "other sources of evidence within the application form."

The reply also indicated that an analysis of the post of Senior Investigator by the Senior Psychologist in the CSLAC had identified the eight relevant skill areas and the Shortlisting Board had focused on three skills which had been identified in that analysis "as being of particular importance for the position." The following statement was also made :

"In coming to their conclusions in relation to these three skill areas, the Board also took into account evidence of analytical skills, judgement and decision making and negotiation skills identified in responses to the other five skill areas on the application form. In assessing candidates on the three competencies, the Board also took into account all other experience identified by the candidates on their application form."

The CSLAC claimed exemption from the release of the record of the Board's assessment of Mr AAJ's application at the shortlisting exercise under Sections 21(1)(a) and 21(1)(b) of the Freedom of Information Act and argued that Board members who agreed to act on boards held prior to 21 April 1998 did so on the understanding that their proceedings and findings would be treated in the strictest confidence. However, details of the marking scheme used by the Board and the marks awarded were released.

Mr AAJ appealed this decision on 9 June and cited a number of public interest factors in favour of release of the records refused which he considered compelling . The CSLAC replied on 18 June indicating that its review of the original decision focused on "all papers/records assessing your suitability to be called for interview." The review evaluated a number of arguments for and against release and stated "I find in summary that a claim for exemption from disclosure of the specific details contained in the record of your assessment by the Shortlisting Board is still valid but is claimed only under Section 21(1)(a) of the Freedom of Information Act, 1997."

Mr AAJ wrote to the Office of the Information Commissioner on 30 June seeking a review of this decision and, having considered the matter, I decided to grant his application for review.

In addition to copies of those documents already supplied to Mr AAJ, I have examined the following records supplied to me by the CSLAC :

1. Copy of the briefing note/guidelines supplied to the Shortlisting Board for the post of Senior Investigator.
2. Copy of an extract from a summary marking sheet used by the Board showing marks awarded to Mr AAJ.
3. Comment sheet used by the Shortlisting Board to record evaluation and marks awarded in the skill category "Negotiation Skills". This is described in more detail below. I have been advised by the CSLAC that there are no records of the evaluation comments on the other two skills areas considered by the Shortlisting Board.
4. Mr AAJ's original application form, a copy of which has already been furnished to him. Apart from a date stamp and identifying number there appears to be no other marks on this form entered by the CSLAC or the Shortlisting Board.

The CSLAC claims that item numbers 1, 2 and 3 above are the only records of the Shortlisting Board's assessment of Mr AAJ's application that are available to it.

The comment sheet referred to at 3 above is a single sheet containing the Board's assessment of his negotiation skills. This consists of a list of numbers from 1 to 12, a summary of the Board's assessment opposite the numbers 1 to 10, and the mark awarded. The CSLAC explained that the numbers are intended to refer to what the CSLAC have referred to as "key performance indicators". There were only 10 such indicators in relation to negotiating skills, so the assessor adapted the form by indicating on it that numbers 11 and 12 did not apply. The details of the indicators are not contained on the sheet.

The summary marking sheet consists of a list of candidates including Mr AAJ and contains each individual's name, competition number, summary of previous employment, marks under each of the skills areas assessed and a comment on whether the individual was "in" or "out" i.e. whether he/she was qualified to proceed to the next stage of the competition. The CSLAC have stated that these are the only records of the Shortlisting Board which contain information about Mr AAJ.

The original files on the matter were examined by my officials and I am satisfied that these are the only records which the CSLAC has which are covered by Mr AAJ's request. The CSLAC has explained that the initial assessment of candidates at the shortlisting stage in relation to negotiation skills was done by one of the Board members who used assessment sheets of the kind used in Mr AAJ's case, for all candidates. The assessment sheet is designed to allow the assessor to record a specific comment against each of the key performance indicators, although he is not required to do so. In fact, in Mr AAJ's case, only a single comment covering all the key performance indicators is recorded. The second Board member made the initial assessment of the analytical skills and the judgement and decision making capabilities of candidates. He adopted a different approach to his colleague, recording his marks for each candidate directly onto the summary marking sheet. Subsequently the two Board members met to finalise and agree the marks for each candidate.

Submissions

Submissions from the CSLAC

The CSLAC 's reply to Mr AAJ's application for internal review explained that a substantial investment in senior management and professional resources expertise had been applied to an analysis of the post of Senior Investigator. It was further explained that this yielded a set of core skills or competencies from which selection methods were derived and criteria for selection decisions were based. A set of specific criteria described as key performance indicators were developed for each skill/competency area and these indicators were applied to the assessment of all applications at shortlisting stage and used to score each application.

In a submission to me dated 24 July, the CSLAC indicated that its letter to Mr AAJ set out the Civil Service Commissioners' concerns in relation to the maintenance of the integrity of the performance indicators. The CSLAC stated that any situation where a potential applicant could have or has had access to a record which might place him/her at an advantage over other applicants in the selection process would have serious adverse consequences for the Commissioners, not least of which would be to bring the Commissioners into disrepute. The CSLAC state :

"It is imperative, therefore, that if public confidence is to be maintained in the selection processes operated by the Commissioners, selection criteria, in this case key performance indicators, which are to be reused, must be retained within the control of the Commissioners at all times.

The issue of if and when the re-use of these performance indicators will arise are matters exclusively for decision by the Commissioners. Assumptions cannot be made as to when vacancies will arise in this grade. Potentially this could happen at any time."

In its letter to Mr AAJ of 18 June the CSLAC indicated that it had noted the following points in considering the case for refusing disclosure :

• The Commissioners made a heavy investment in terms of both senior management and professional resources expertise and time in analysing the post of Senior Investigator.
• The Office of the Ombudsman also made a heavy investment in terms of senior management resources in assisting in this analysis.
• This yielded a set of core skills or competencies from which selection methods were derived and criteria for selection decisions were based.
• In order to asses these core skills/competencies a set of specific criteria called key performance indicators were developed for each skill/competency area.
• These key performance indicators were applied to the assessment of all applications at shortlisting stage and used to score each application.
• Disclosure of these key performance indicators would show the specific behaviours to be exhibited and standards to be achieved for success at shortlisting stage.
• Because of the heavy investment in developing the selection methods for this competition the Commissioners would propose to re-use these same methods in any future competition to fill the post of Senior Investigator, as they do with all specially designed and developed tests and examinations.
• Disclosure of the key performance indicators would have the effect of undermining these selection methods as, once in the public domain, potential applicants could assess the behaviour and standards required for success.
• Damage would result to the effectiveness of the test, examination and a costly investment (by two public bodies), which has the potential for future use, would fail to realise its investment. (sic).

The CSLAC indicated that the case for releasing the information would include :

• Providing Mr AAJ with specific information relative to how the evidence he offered in support of his candidature was evaluated.
• Helping him to understand how the process worked and where he did not succeed in matching the criteria, in effect the factors behind the reason for the decision.

The following statement was included :

"Having evaluated the arguments under Section 21(1)(a) and (b) I have come to the conclusion that the release of your assessment at shortlisting stage would involve the release of key performance indicators and how they were applied and that this could reasonably be expected to prejudice the effectiveness of tests, examinations for the selection of Senior Investigator which have been designed and developed at considerable expense and would damage any potential for further use of these tests, examinations. Accordingly exemption is being claimed under Section 21(1)(a) of the Act."

In applying the public interest test in favour of release the CSLAC had regard to the following :

• Right of public to have access to information.
• Disclosure will reveal reasons for decisions.
• Accountability of Commissioners and their agents.
• Scrutiny of decision making process.
• Openness and transparency of selection process.
• Public confidence in Civil Service recruitment and selection process.
• Right of private individuals to access information which establishes a cause of action.

In applying the public interest test against release the CSLAC had regard to the following :

• Need to preserve confidentiality having regard to the subject matter i.e. tests, examinations.
• Release of records would impair any future use of these tests, examinations.
• Release would impair the integrity and viability of the decision making process to a significant degree without countervailing benefit to the public.
• Release would damage the Commissioners' ability to maintain confidentiality of their deliberative process in making selection decisions.
• Broader Civil Service recruitment and selection interests must be considered as distinct from those of Mr AAJ as the requester.
• Disclosure could benefit Mr AAJ, as the requester, in future recruitment.
• Public interest in the Commissioners being able to continue to make informed decisions, based on objective criteria in carrying out their recruitment functions.

Having weighed the arguments for and against release, the CSLAC came to the view that those against disclosure were more compelling than those in favour and continued on this basis to claim the Section 21(1)(a) exemption. Having considered arguments for and against release under Section 21(1)(b), the claim for exemption under that section was dropped.

Submissions from Mr AAJ

In a submission dated 23 July, Mr AAJ set out his rebuttal of the arguments advanced by the Civil Service Commission in support of the Section 21(1)(a) exemption claim. He argues that "there must be real and substantial grounds for expecting certain demonstrable prejudicial consequences to follow from the disclosure of the records in question. In my view, the Civil Service Commission has failed to meet this injury test under Section 21(1)(a)."

He further argues that rather than prejudicing the tests the disclosure of the key performance indicators would have the "exact opposite effect to that claimed" in that "the quality of the applications being received by the Commission would be improved and much more focused thus rendering the evaluation process at selection more efficient by making it easier to judge the various applications against each other." He argues that all candidates would have an equal chance to demonstrate how they met the key performance indicators and that "candidates who really met the criteria and actually possessed the core competencies would be able to demonstrate this by submitting applications of superior quality."

Mr AAJ likens the shortlisting process for Senior Investigator to that of a tendering competition. He argues that as tenderers are aware in advance of all the selection criteria against which their tender will be judged, tenderers can submit their tender in such a way as to demonstrate that they meet the criteria, the quality of the tenders is improved and "the whole process is seen to be fair and open." In his view the release of the key performance indicators into the public domain would have similar beneficial effects for the CSLAC.

He points out that, in recent months, the CSLAC has been training civil servants in the use of "competency based structured interviewing techniques including the use of performance indicators." He claims that "Civil servants who have undergone such training have openly admitted that they would have the advantage over those who did not receive this training in future competitions for promotion." He argues that it is unlikely that the CSLAC would claim that future competitions using such techniques have been prejudiced because some of the candidates have received such training and that the release of the performance indicators not only to him, but to all candidates would "lead to a level playing pitch in the future".

Mr AAJ rejects the claim for exemption on the basis of the investment in relation to devising the performance indicators as inappropriate for Section 21(1)(a). He states "Once a decision to hold a competition was taken, there was always going to be an unavoidable cost involved in devising appropriate selection criteria and this of itself would not be sufficient to justify the use of a Section 21(1)(a) exemption."

Turning to the public interest arguments he states that the CSLAC did not give sufficient weighting to the public interest factors in favour of release which he had put to them in his application for internal review. He states "There is no explanation given by the reviewer as to how the public interest arguments against release were found to be more compelling." He believes that the public interest arguments cited by him strongly support his case for access. The public interest factors cited by Mr AAJ include :

• the right of the public to have access to the reasons for decisions of public bodies which affect them
• the need to have public confidence in the fairness and impartiality of competitions conducted by public bodies and the Civil Service Commission in particular
• the need for openness and transparency in the conduct of business by public bodies
• the need for the accountability and objectivity of administrators and for the scrutiny of the decision making process
• the fact that disclosure of the record will reveal reasons for decisions particularly in relation to the marks awarded to him
• access to the record would give candidates an opportunity to assess the objectivity of the performance criteria under which all applications were assessed
• the right of all candidates to have access to all of the criteria by which their applications will be judged, particularly where shortlisting will be applied to "weed out" the vast majority of applications.

In addressing the public interest arguments cited by the CSLAC against release he expresses the view that the arguments in relation to the need to preserve confidentiality and that release would impair their future use, are weak. He argues that, as the CSLAC has not demonstrated reasonable damage to the test as claimed, the public interest argument fails. He states that this view "is supported by the Australian Administrative Appeals Tribunal case A84/61 - re Marcus G.James and Ors. and the Australian National University which found in favour of the requester on the grounds that the public body had failed to establish that disclosure would be contrary to the public interest by reason of the fact that the body had failed to show evidence of damage to the tests."

Referring to the public interest argument that release would impair the integrity and viability of the decision making process without any countervailing benefit to the public, Mr AAJ argues that there is a strong and significant benefit to the public in being aware of all of the selection processes under which applications are judged. He rejects arguments in relation to the confidentiality of the deliberative process on the grounds that, as the deliberative process has been completed, such arguments are "not appropriate".

Mr AAJ also rejects arguments in relation to broader civil service selection and recruitment interests as opposed to those of himself as the requester on the basis that the performance indicators should be in the public domain. He states "The arguments advanced by the Commission here would seem to imply that the public interest of the broader recruitment and selection issues should take precedence over an individual's public interest." In this regard he cites the Australian Administrative Appeals Tribunal Case no.A83/113 - Burns and the Australian National University which "found that sometimes the public interest can consist solely of the particular interests of the individual primarily affected so that it may be in the public interest that the interests of the individual not be overborne."

Mr AAJ argues that the public interest argument against release in relation to the Commissioners being able to continue to make informed decisions based on objective criteria is, in fact, an argument in favour of release. He argues that "the only way that members of the public can know with any degree of certainty that public bodies take decisions on this basis is for members of the public to have access to those objective criteria."

Findings

Mr AAJ has been refused access to the briefing note used by the Shortlisting Board in coming to its decisions. He has also been refused access to the summary results sheet and to the comment sheet in relation to his negotiation skills - although he was given details of the Board's marking scheme and the marks awarded to him under the three skill areas which the Board examined viz. analytical skills, judgement and decision making and negotiation skills.

The question which I have to decide is whether any of the three records mentioned above or any part of them should be released to Mr AAJ.

In relation to the briefing note/guidelines used by the Board, the CSLAC originally refused access on the grounds that the guidelines were contained in a record created prior to 21 April l998 and that record did not contain personal information about the requester. Mr AAJ did not challenge this decision in his application to me for a review, but this may be because, on the basis of the CSLAC's reply to his request for internal review, he believed that the release of the Board's assessment relating to him would disclose the so-called "key performance indicators". In fact, and as will be appreciated from what has been said above, this is not the case. To avoid any doubt on the matter, I wish to state that I believe the decision of the CSLAC not to release the guidelines on the grounds stated is correct.

The summary marking sheet is simply a record of factual matters, details of which are already known to Mr AAJ, either because he originally supplied the information or the CSLAC disclosed the information to him in dealing with his request under the Freedom of Information Act. It is not clear to me that Mr AAJ wishes to see a copy of the record but, again, to avoid any doubt on the matter, I wish to state that if he so wishes he should be afforded a copy, showing the information which pertains solely to him.

The final record is the comment sheet dealing with Mr AAJ's negotiation skills. In relation to this record two different questions arise. The first is whether the record itself should be released. The second is whether, if the record itself is released, it is also necessary to release details of the " key performance indicators" represented by the numbers on the assessment sheet.

Turning to the arguments made in this case, the sole ground on which CSLAC now claims exemption is that Section 21 (1)(a) applies viz. that disclosure of the records sought could reasonably be expected to prejudice the effectiveness of tests or examinations for the selection of Senior Investigator including the procedures employed for the conducts of such tests or examinations

It is quite clear from the statement of reasons given to Mr AAJ in the CSLAC's letter of 18 June and from the arguments which they put to me in the course of the review and which are summarised above, that, in relying on Section 21 (1)(a), the CSLAC's main concern is to avoid disclosure of the "key performance indicators". No specific argument has been made that the release of the assessment of the Shortlisting Board in relation to negotiation skills which, as I have said, does not itself contain the details of the "key performance indicators", would prejudice the effectiveness of the testing procedure in this case. Even if such an argument were made, I could not accept that disclosure of the record in this case, which contains little more than a brief explanation of the Board's assessment and the mark awarded, could impair the effectiveness of the selection process

Accordingly, I have decided that the record of the Board's assessment of Mr AAJ's negotiation skills should be released to him.

There remains the question of whether the "key performance indicators" represented by the numbers 1 to 10 on the record should also be disclosed. The key performance indicators are not personal information about any particular candidate, and as they are contained in pre-21 April records there is no reason, on the face of it, why the CSLAC is required to release this information under the Freedom of Information Act.

On the other hand, it seems to me that where a record which contains personal information also contains symbols or codes, the meaning of which is not known to the requester, the fact that the meaning of the code or symbol is recorded separately may not always be sufficient of itself to prevent release of the information represented by the symbol. The correct test here, it seems to me is whether the record is capable of being understood in its own right, without the aid of some other material. If it is, then that is the end of the matter; if it is not then consideration must be given, subject to the terms of the Act, to releasing the material which will enable the record with the personal information to be properly understood.

In this particular case I have noted that all the records involved pre-date the 21 April 1998. Nevertheless, and accepting that I could not legally determine the release of the "key performance indicators" in this particular case, I proceeded to examine whether or not the comment sheet can be fully understood in Mr AAJ's case without knowledge of the key performances indicators. I concluded that it could. In arriving at this view I have taken the following matters into account.

The application form for the post listed eight key attributes which a successful candidate would have to demonstrate. A brief explanation of each attribute was then given. Candidates were invited to give a brief example from their past work experience in respect of each attribute showing the task involved, the skill demonstrated and the outcome.

Thus, for example, in relation to negotiation skills, it was explained that "A Senior Investigator must deal effectively with conflicting demands and handle conflict constructively even in emotionally charged situations". A Senior Investigator must be able to skilfully negotiate with other people and persuade others to a point of view."

At the shortlisting stage the Board considered the examples put forward by each candidate and made a judgement as to the degree to which each example demonstrated the desired attribute.

The CSLAC explained to me that the task of devising a test of this kind is a very onerous one. It involves many hours of consultation, in a structured way, with parties who can explain from first hand experience the kinds of effective work behaviour which an ideal candidate should possess. Arising out of this consultation the key performance indicators are derived. The CSLAC agreed that the term "key performance indicator" was not a particularly apt description. The key performance indicators are really specific types of behaviour expected of the post-holder. The key performance indicators were used to arrive at the "explanation" of each attribute. In other words the explanation is a distillation of the contents of the key performance indicators.

In Mr AAJ's case the assessor who initially assessed his negotiations skills did not record a specific comment about any of the key performance indicators. His comment refers to all the indicators together. It is clearly an overall, general assessment of Mr AAJ's performance in this part of the test. There is no evidence that the assessor gave more or less weight to any particular indicator. In the circumstances the record is no more than a general assessment of how Mr. AAJ met the criteria in the "explanation" referred to above. Therefore, I am satisfied that disclosure of the key performance indicators is not necessary to enable the record to be understood. For the same reasons I am also of the view that disclosure of the key performance indicators is not necessary to enable Mr AAJ to understand the other record viz. the summary marking sheet.

As I indicated above, the key performance indicators are not personal information about any particular candidate and are contained in pre-21 April records, and this is sufficient to decide the matter in favour of the CSLAC. However, I have dealt with this matter in some detail bearing in mind that the pre 21 April aspect of this case may not be present in other cases.

In the course of the review both sides raised many issues regarding the public interest. In view of the grounds on which I have decided this matter it is not necessary for me to consider these arguments in this case.

Decision

Having carried out a review of the decision of the CSLAC in this case and having considered the arguments put forward by both sides, I have decided to affirm the decision of the CSLAC to refuse Mr AAJ access to the briefing note to the Shortlisting Board. I have also decided to annul the decision of the CSLAC to refuse Mr AAJ access to the records of the Shortlisting Board which contain personal information about him viz. the comment sheet in relation to the assessment of his negotiation skills and a copy of the summary results sheet insofar as it contains personal information about him.

Information Commissioner

02 November 1998