Case 98082. Shortlisting board notes - whether release could reasonably be expected to have a significant adverse effect on the performance of functions in relation to recruitment - application of section 21(1)(b)

Case Summary

Facts

The requester applied to the Office of the Local Appointments Commissioners (LAC) seeking all of the reasons as to why he had not been granted an interview for the post of Senior Engineer for which he had applied. The LAC set out, in broad terms, the manner in which the shortlisting board arrived at its decision to recommend applicants for interview but refused to disclose the notes of the board's assessment of Mr ABD's application. Exemption from release was claimed under section 21(1)(b).

Decision

The Commissioner decided to vary the decision of the LAC and directed that Mr ABD be given access to that part of the shortlisting board's report which contained his name and associated hand-written comments. He did not find it reasonable to expect that the likelihood of and scale of any challenges which might emerge as a result of release in this and similar cases would be such as to have a significant adverse effect on the ability of the LAC to recruit suitable interviewers in future competitions. He did not find it reasonable to expect that any significant number of prospective board members would be deterred from providing their services by virtue of the fact that their recorded comments might subsequently be released to the candidate. The Commissioner also found that the fact that the record was created prior to the coming into operation of the FOI Act was not sufficient to enable it to be said that that its release would have the significant adverse effect claimed by the LAC.

Date of Decision: 11.02.1999

DECISION

Background:

On 17 June 1998, Mr ABD wrote to the Office of the Local Appointments Commissioners (LAC) asking why he had not been shortlisted for the post of Senior Engineer for which he had applied in August 1997. In the course of that letter, Mr ABD made an application, under the Freedom of Information (FOI) Act, seeking "all the reasons for the decision that denied me the right of an interview".

The LAC replied to Mr ABD on 3 July setting out in broad terms the manner in which the board appointed for the shortlisting of candidates arrived at its decision to recommend applicants for interview. The reply also stated that "...exemption is being claimed under section 21(1)(b) of the FOI Act, 1997 from disclosure of the details of the board's assessment of your application at shortlisting."Mr ABD was also advised that in considering whether or not to release the deliberations of the shortlisting board's assessment, the following factors in favour of disclosure had been considered by the LAC :

• It would provide him with more specific information regarding the board's evaluation of his application.
• It is personal information.

The LAC indicated that the following factors against disclosure had also been taken into consideration :

• The Commissioners' ability to discharge their recruitment responsibilities 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.
• Public service recruitment is a vital function. It must be allowed to proceed in a supportive environment which is conducive to free and uninhibited judgement.
• 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.

The LAC's reply to Mr ABD went on to state :

"Having evaluated the arguments under section 21(1)(b), I have come to the conclusion that the disclosure of these records could reasonably be expected to have a significant adverse effect on the performance by the Commissioners of their functions in relation to management of their recruitment operations as it could reasonably be expected to deter persons from serving on boards established by the Commissioners."

Mr ABD wrote to the LAC on 15 July seeking an internal review of that decision. In his application for internal review Mr ABD stated :

"It is my contention that the following issues should now be addressed by you (the internal review) :

1. The successful candidate (only one of the 16 interviewed) was a Senior Executive Engineer from 19XX. Why was he shortlisted and I was not.
2. The successful candidate is very well acquainted with an influential person on the board and other candidates are aware of this. If I have reason to address this issue further I will name the person on the board.
3. In relation to (2) did the board member make this known (acquaintance) to the rest of the board. Obviously, this is the proper procedure. If this was not done your review must embrace this issue.
4. The board in their assessment do take records of why a candidate was not shortlisted. These should be reassessed in the light of both candidates (myself and the successful candidate)."

The LAC replied to Mr ABD on 5 August notifying him of its decision to uphold the original decision to withhold details of the shortlisting board's assessment of his application. It was stated that an objective view had been taken of the extent to which disclosure of a brief note taken during the course on the shortlisting board's deliberations would have a significant adverse effect on the performance by the Local Appointments Commissioners of their functions in relation to the management of their operations. The LAC stated that the case for releasing the information about Mr ABD's candidature would include :

• Helping him to understand how the process worked and where he did not succeed in matching the criteria.
• Right of public to have access to information.
• Openness and transparency of the selection process.
• Public confidence in the recruitment and selection process.
• Right of private individuals to access information which establishes a cause of action.
• Accountability of Commissioners and their agents.

The case for refusing disclosure outlined to Mr ABD by the LAC was :

• The Commissioners' ability to discharge their statutory responsibility in relation to selection and recruitment is dependent on the services of others acting as board members who, in the past, undertook this duty on the basis that any record of the process was confidential.
• Board members and candidates in many instances belong to the same profession or vocation and those who act on boards must be allowed to proceed in a supportive environment conducive to free and uninhibited judgement.
• The management of the Commissioners' operations could be placed in jeopardy if such people refuse to serve because records of the process are accessible by candidates.
• A significant number of competitions organised by the Commissioners include a shortlisting stage. If this process is constantly at risk from or open to challenge it would have a significant adverse effect on the Commissioners in the management of their operations.

In addition to these points, the LAC also stated that the information about the successful candidate and information about the behaviour of a particular board member is not disclosable as it was not personal information relating to Mr ABD and in any event, related to events which occurred before the commencement of the FOI Act.

In response to Mr ABD's question in relation to the possible withdrawal of members of shortlisting boards, the LAC quoted the following extract from the guidelines issued to board members :

"Where it emerges that a board member is either related to, or otherwise connected with, one of the candidates to such degree as might give rise to an allegation that the impartiality of the member as a selector could be in question, the matter should be discussed with the chairperson and a decision taken as to what attitude to adopt before the candidate enters the room. It is acceptable that such a member should take part in the questioning of the candidate, but would play a minor role in the assessment."

Mr ABD applied to this Office for a review of LAC's internal review decision on 31 August and, having considered the matter, I decided to grant his application and proceed with a review of that decision.

In reviewing this case, I have examined all of the records supplied to me by the LAC which were associated with Mr ABD's job application together with the correspondence which passed between Mr ABD and the LAC in relation to his FOI request.

I am satisfied that the only document relevant to Mr ABD's request in relation to the reasons he was not selected for interview is a report entitled "Open competition for appointment to the position of Senior Engineer - Shortlisting Board Report for approval." This report, which totals twelve pages, consists of 4 separate records :

Record number 1

This is a report to an Assistant Principal of the LAC by the Commission representative on the shortlisting board. This report indicates that the shortlisting board met to review the applications for the advertised posts and sets out, in broad terms, the criteria which the board agreed to apply to the applications and the board's findings in relation to the number and grades of applicants, together with its final recommendation.

Record number 2

This is a list of the 16 persons recommended by the board for admission to the competition and invitation to interview.

Record number 3

This is a list of the names and positions held by those persons whose applications were considered by the shortlisting board. This list contains, opposite the name of each applicant, hand-written comments in relation to suitability or otherwise of each applicant.

Record number 4

This is a list of the names and positions held by the members of the shortlisting board.

Submissions

In a submission dated 31 August, Mr ABD stated that he had not been afforded a right of appeal against the LAC decision not to grant him an interview and that the LAC decided to hold the interviews without allowing the unsuccessful applicants the right to address the issue. Mr ABD contended that " historically this right of appeal was always available." (In his letter to the LAC of 17 June Mr ABD had claimed that he had received notification of the fact that he had not been shortlisted a week before the final interviews had been held). Mr ABD also claimed that in the past, candidates who were successful on such appeals were subsequently appointed ahead of candidates whose names had originally been shortlisted.

In referring to his previous claim that the successful candidate was very well acquainted with an influential person on the board, Mr ABD contended that the guidelines issued to the board, as advised to him by the LAC, had not been complied with.

Mr ABD contended that in refusing to disclose the deliberations of the board, the LAC decided that "...the board members should be immune from criticism." He went on to state "What the LAC does not say, is, that there are numerous candidates available with even better qualifications than the interviewing board, that addressed the above interviews. Also, no professional member of a board would fear criticism/confidentiality if they had adhered to the guidelines. The overall standard would also improve."

In a submission dated 30 September, the Office of the LAC stated that while the Local Authorities (Officers and Employees) Acts 1926 - 1983 do not provide for a statutory appeals mechanism in relation to decisions taken by the LAC, the Commissioners will consider complaints or requests for review in relation to the selection process. The LAC also stated that while this was not explicitly mentioned in any of the documentation which issued to candidates at the time of the competition, "....it was widely known and availed of by candidates, particularly at Engineering competitions. Had Mr ABD requested a review of the shortlisting decision at the time, his request would have been granted."

Referring to Mr ABD's contention that the guidelines issued to the board concerning potential relationships between board members and candidates had not been complied with, the LAC stated "There is no record or recollection in this Office of any such relationship or connection between the chairperson and any candidate."

During the course of subsequent attempts on the part of my staff to arrive at a settlement in this case, the LAC argued strongly that members of shortlisting and interview boards had, prior to the commencement of the FOI Act in 1998, a reasonable expectation that their deliberations would be maintained in confidence. It was argued that there is a small pool of potential interviewers for professional positions in the Local Authority service and that if those interviewers were to become aware that their deliberations are potentially releasable under the FOI Act, it is likely that they would refuse to serve on boards on the basis that other persons in that small pool of professionals could then become aware of what had been said about them in the past.

Findings

Mr ABD sought "all the reasons for the decision that denied me the right of an interview". On the face of it, this is a request of the kind envisaged in section 18 of the FOI Act, viz. a request for a statement of the reasons for an act of the public body and of any findings on any material issues of fact made for the purposes of that act. I have already decided in case number 9895 that section 18 does not operate retrospectively and that, as a consequence, a public body cannot normally be required to give reasons for an act which took place prior to the commencement of the FOI Act. On this basis the LAC could have refused to provide Mr ABD with a statement of the reasons why he was not shortlisted. However, the LAC, very reasonably, dealt with his application as a request for access to records under section 7. I therefore propose to deal with the matter on the same basis as the LAC, i.e. a request for access to records under section 7.

In refusing to grant access to the records of the proceedings at interview, the LAC 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". Most of the arguments which it has raised in support of its section 21(1)(b) claim for exemption reflect those put to me in the case of Mr AAF and the Office of the Civil Service and Local Appointments Commissioners (CSLAC) - case number 9820. In that case it was apparent that a major concern was that the function of finding persons willing to serve on interview boards might be affected. In considering the case put to me in relation to Mr AAF's records it was by no means clear to me 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 in the Mr AAF's case that this could be expected to happen to such a degree as to have a significantadverse effect on the ability of the CSLAC to find suitable interviewers. 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 (section 34(12) of the FOI Act). In the case of Mr AAF, I held that the CSLAC had not discharged that burden of proof.

It has been put to me in this case, as it was in the case of Mr AAF, that the ability 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. Mr AAF had been interviewed for the position of Clerical Assistant. I found it reasonable to assume that the pool of prospective interviewers for such a position is fairly wide. I was satisfied that the CSLAC's ability to find suitable interviewers for such positions in the future would not be affected to any significant degree.

However, in Mr ABD's case the LAC has raised two additional points. The first is that interviewers for professional positions such as that for which Mr ABD applied, are drawn from a relatively small pool. It is argued that prospective interviewers would be unwilling to serve on interview boards if they felt that comments recorded in the course of selection processes could be revealed to candidates at a later date. The second point put to me by the LAC is that the persons who acted on interview and shortlisting boards prior to the commencementof the FOI Act had a reasonable expectation that their deliberations would be confidential. It is argued that the willingness of such interviewers to act again would be affected either out of a general sense of grievance that comments which they believed were confidential had now been released or because in specific cases they would be unwilling to interview candidates again about whom they have made unfavourable comments

In the light of my decision in Mr AAF's case, and having regard to the arguments now put forward by the LAC, the issue in Mr ABD's case comes down to whether it is reasonable to expect that releasing the comments of the shortlisting board in his case will have a significant adverse effect on the ability of the LAC to find suitable interviewers in future competitions involving professional appointments.

I accept, for the purposes of this decision, that there is a relatively small and fairly static pool of interviewers and candidates and that, in many interviews, some members of the board will be known to some candidates. In these circumstances it is easy to speculate about possible situations which might arise if the comments of interview boards or shortlisting boards are made available to candidates. For example, a particular candidate could compare his or her recorded performance over a number of interviews to check for consistency of treatment. Another possibility is that unsuccessful candidates could compare notes, again with a view to establishing consistency of treatment or otherwise. Of course without access to the deliberations of the selection board it is difficult for candidates to draw meaningful conclusions. I accept that more openness in the selection process may increase the ability of unsuccessful candidates to question the results of competitions. However, I do not accept that this, of itself, will have a significant adverse effect on the ability of the LAC to recruit suitable interviewers. The LAC argues simply that the mere risk of such challenges will have a significant adverse affect on the Commissioners in the management of their operations. However, it seems to me that it is not reasonable to expect that the mere risk of increased challenge to the process will deter interviewers, who are more likely to adopt a wait and see approach.

Of course, if challenges to the process became a regular feature, then it is possible that some potential interviewers would be deterred. But the question as to whether there is therefore an increased likelihood of such challenges must be considered. The LAC has not argued this point. However, it does not seem reasonable to me to expect that unsuccessful candidates will challenge the outcome of competitions almost as a matter of course. If anything, the opposite is more likely to be true. The selection procedures operated by the LAC require the exercise of judgement by boards. Candidates themselves will be mindful of the difficulties involved in exercising that judgement and the even greater difficulty of proving, even with access to the board's comments about themselves, that the judgement was not exercised fairly. Furthermore, the LAC has indicated that candidates tend to apply for a number of engineering posts during their career and may come before the same interviewer on a number of occasions. In my view this of itself will act as a disincentive to candidates who might be minded to mount a challenge to the result of a particular competition based on the comments of a board. Having regard to all the circumstances in this case, I do not find it reasonable to expect that the likelihood and scale of any challenges which might emerge as a result of releasing the comments of the shortlisting board in Mr ABD's case and in similar cases will be such as to have a significant adverse effect on the ability of the LAC to recruit suitable interviewers in future competitions.

The LAC has raised a separate argument in its letters to Mr ABD. It suggests that releasing the comments of board members will undermine the current environment in which boards operate and which it describes as supportive and conducive to free and uninhibited judgement. It seems to me that this argument is really based on the assumption that prospective board members by and large will not feel confident that they are capable of making rational judgements on the merits of the candidates coming before them and recording these judgements in a way which will bear scrutiny. Of course, it is possible that some prospective board members will feel this way. However, having regard to the fact that the board members in this instance are professional people who, I must assume, have been properly briefed in advance by the LAC, I do not find it reasonable to expect that any significant number of prospective board members will be deterred from providing their services.

The final argument put forward by the LAC is that the shortlisting in this case took place in 1997, prior to the coming into effect of the FOI Act, and that the board had then and has now a reasonable expectation that its comments would not be revealed to candidates. I accept that this argument may have some force in relation to competitions held some years ago, before the FOI Act was reasonably foreseeable. Whether, in such cases, the argument would be sufficient to support a claim for exemption under section 21(1)(b) seems doubtful. Although in this particular case the records of the board were created prior to the commencement of the FOI Act, they were created subsequent to its enactment. It seems to me that the argument has no validity when applied to records created after the enactment of the FOI Act in April 1997 at which point the parties concerned were aware, or should have been aware, that their comments might be accessible under the FOI Act. Therefore, I find that the fact that the record was created prior to the coming into force of the FOI Act is not sufficient to enable it to be said that its release now would have the effects argued by the LAC.

Having regard to all the circumstances in this case and for the reasons set out above, I find that it is not reasonable to expect that release of the record in this case would result in a significant adverse effect on any of the functions of the LAC relating to management.

As I have decided not to uphold the LAC's claim for exemption, the question now arises as to which records should be released to Mr ABD. I have already found that the only records relevant to Mr ABD's request in relation to the reasons he was not selected for interview are contained in a report entitled "Open competition for appointment to the position of Senior Engineer - Shortlisting Board Report for approval." I accept the LAC's finding on internal review that information in relation to the successful candidate is personal information relating to a third party, and in any event relates to information created before the commencement of the FOI Act. I also find that the same is true of the names of those candidates selected by the shortlisting board to be called forward to interview and of the list of names and positions held by the members of the shortlisting board. Record number 1, the broad outline of the board's activities and criteria used for selection also contains information which is not personal information about Mr ABD and it is a record created prior to the commencement of the Act. I am satisfied from my examination of the correspondence which passed between Mr ABD and the LAC in relation to his FOI request that the LAC has adequately explained the selection criteria used by the board. I find that the only personal information about Mr ABD contained in the report is that in Record number 3 which shows his name and the notes recorded opposite. Therefore, I find that he is entitled to access to that part of record number 3 in accordance with section 13 of the FOI Act.

Decision

Having carried out a full review of the decision of the LAC, and having considered the arguments put forward both by Mr ABD and the LAC, I have decided that Mr ABD is entitled to access to the deliberations of the shortlisting board in so far as they contain personal information relating to him.

Therefore I vary the decision of the LAC on internal review, dated 5 August 1998, to refuse Mr ABD access to the deliberations of the shortlisting board and direct that he now be offered access to that part of the shortlisting board's report, referred to here as Record number 3, which contains his name and the associated hand-written comments.

Information Commissioner

11 February 1999