Case 020485. Application for statement of reasons as to why a public body did not short-list a candidate for interview - whether a public body is required to give a 'statement of reasons' for an 'act' occurring before the public body was prescribed for the purposes of the FOI Act -section 18

Case Summary

Facts

Mr X was an unsuccessful applicant for internal promotion competitions in University College Cork ("UCC") in 1999 and 2001. UCC complied with the requirements of section 18 to provide a statement as to the reasons it did not short-list Mr X for interview in the December 2001 competition. However it refused to provide a similar statement of reasons in relation to the 1999 competition. UCC claimed it was not required to comply with the provisions of section 18 of the FOI Act in relation to the 1999 competition as the provisions of the FOI Act only applied to it from when it was prescribed in October 2001.

Decision

The Commissioner found that UCC's decision to refuse to provide a statement of reasons for the 1999 competition was justified. In doing so he had regard to the relevant regulations prescribing UCC and other third level education bodies for the purposes of the FOI Act and the fact that there is no reference in the Act or regulations to the provisions of section 18 being retrospective. The Commissioner was satisfied that the question of the 'act' having continuing effect did not arise in this case.

Date of Decision: 04.03.2003

Our Reference: 020485

04.03.2003

Mr X

Dear Mr X

I refer to your application for a review of the decision of University College Cork ("UCC") to refuse access to parts of certain records relating to your application for promotion. Your application also requested that I review the 'statement of reasons' provided by UCC under section 18 of the Freedom of Information Act ("the FOI Act") in relation to the December 2001 promotion competition and its decision to refuse to provide a 'statement of reasons' in relation to the December 1999 competition.

Background

I have now completed my review of UCC's decisions. In carrying out that review I have had regard to UCC's submissions of 23 October, 6 November, 11 November, 21 November, 26 November 2002 and 14 February 2003. I have also had regard to your application to my Office, your submission of 18 November 2002 and to your telephone discussion with Mr Nutley of this Office. I have examined the records in question and the 'statement of reasons' provided by UCC under section 18 of the FOI Act.

Scope of Review

During the course of my review a further record not listed on the schedule of records UCC supplied to you was located. The record is the report of the sub-group of the Lecturer Promotions and Establishment Board dated December 2001. While it could be argued that the record is not within the scope of your request I have considered it in this decision. As it contains a list of names of those short listed and those not short listed it would follow that UCC is also claiming that its contents are exempt under section 28 of the FOI Act.

In your e mail of 18 November 2002 you raise an issue relating to the record management practices of the HR Department of UCC. I have the power to review the operation of the Act from time to time and have already carried out an investigation into compliance by certain public bodies, including their record keeping practices. However the demands on my Office are such that I could not contemplate investigations into individual cases. Accordingly, in this case my review is concerned with :

• UCC's decision to refuse access to the report of the sub-group of the Lecturer Promotions and Establishment Board dated December 2001 and certain parts of other records as set out in its schedule of records,
• whether other records exist in relation to UCC's consideration of your applications for promotion,
• whether the 'statement of reasons' provided by UCC in relation to the 2001 competition meets the requirements of section 18 of the FOI Act and,
• whether UCC's decision to refuse to provide a statement of reasons for the 1999 competition is justified.

Findings

Section 28(1)

UCC decided to refuse access to parts of records it numbered 6 and 22 on the schedule of records provided to you and the report of the sub-group of the Lecturer Promotions and Establishment Board dated December 2001, under section 28(1) of the FOI Act. Section 28 of the Act provides that a public body should refuse to grant a request where access to the record would involve the disclosure of personal information about someone other than the requester. Personal information about an individual can be released to a third party without the individual's consent only where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld.

'Personal information' includes information about an identifiable individual which is held by a public body on the understanding that it would be treated by it as confidential.

Records 6 and 22 are the minutes of the meeting of the Lecturer Promotions and Establishment Board held on 17 December 1999 and 18 December 2001 respectively. As your request is for records relating to the [type of competition] my review is concerned only with those parts of the minutes which refer to that competition. You have already been granted access to most of the contents of the two sets of minutes in question. The parts to which you have been refused access can be described as (a) lists of the names of candidates who applied, or were short listed for, promotion to [particular grade ] in 1999 and 2001, (b) two paragraphs i.e. paragraph 5 on page 3 of record 6 and paragraph 5 on page 2 of record 22, containing general comments and (c) a page attached to the minutes of 18 December 2001 which repeats the list of candidates not short-listed for interview and also the areas of improvement required for each.

In relation to (a) I am satisfied that the information that an individual applied for a particular competition is information that would be treated as confidential by a public body. Therefore I find that UCC was justified in deciding to refuse access under section 28(1). There is no public interest in the release of these names which would outweigh the public interest in upholding the right to privacy of the individuals to whom the information relates .
UCC has argued that the comments in the paragraphs at (b) relate to the application of an individual for promotion which, it argues would constitute personal information. However for information to meet the definition of personal information in the FOI Act it must be "about an identifiable individual". Neither of the two paragraphs contain the names of any individual, nor can any individual be identified from the general description given in the comments made. UCC argues that the academic community in UCC is small and that it would be known "at least anecdotally" who might have applied and who may have been short-listed. This may well be the case. However I have examined the contents of the paragraphs. Given the general nature of the comments they could apply to any one of a number of people. I am satisfied that access to the paragraphs would not involve the disclosure of personal information, which is required in order for the information to be exempt under section 28(1).

For the reasons outlined above I find that the provisions of section 28(1) also apply to the names listed in (c) but not to the list of areas for improvement which, disassociated from the names, do not disclose personal information. I also find that the report of the sub-group of the Lecturer Promotions and Establishment Board dated December 2001 which also contains the list of names of those who applied, or were short-listed for, promotion is exempt from release under the provisions of section 28.

Existence of other records

During the course of this review you also queried whether other records relating to UCC's consideration of your application for promotion may exist. UCC maintains that all records relating to your request are listed on the schedule of records attached to its decision letter to you of 4 February 2002. UCC's claim that no further records exist represents a claim for exemption under section 10(1)(a) of the Act. That section allows a public body to refuse access where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. I have found that there can be some misconceptions about my role in cases of this nature where the public body has decided that no further records exist or cannot be found. Occasionally, requesters may expect me or my officials to carry out a search for the records in question. However, I see my role in these cases as one of reviewing the decision of the public body and deciding whether that decision was justified. This means that, as in any other review, I must have regard to the evidence available to the decision maker and the reasoning used by him or her in arriving at the decision. The evidence in such cases usually consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body which formed the basis for the decision of the public body.

In response to queries raised by my Office UCC informed me that that the operation of the promotions scheme generates a number of records which are managed and stored within the Academics Appointments Office of the Department of Human Resources. The records created during the scheme include minutes of meetings of the Lecturer Promotions and Establishment Board. The minutes are stored in official minute books as well as in electronic format. UCC also informed me that since 2001 each subgroup must document their recommendations in respect of candidates not short-listed and provide this information to the Board in the form of a report. These reports are then held within the Department of Human Resources. Finally, application forms and other forms associated with the process are retained and filed on the candidates promotion/personnel file. In response to your request UCC has said that it searched the file minute books and locations referred to above and that it is confident that all records relating to your applications for promotion have been considered.

Following a request from this Office UCC also contacted [names deleted] who prepared a report setting out the reasons why you were not short listed. Each of the parties has confirmed that all notes which they held had been returned to the Human Resources Department.

In your application for internal review to UCC you refer to the fact that no records relating to your performance as against other candidates exist. I have addressed this issue in more detail in assessing whether UCC's statement of reasons under section 18 is adequate. At this point it is sufficient to say that given the way candidates are assessed it is clear to me that no such records would exist.

Having regard to the evidence provided by UCC and the searches undertaken by it in response to your request I find that UCC is justified in its finding under section 10(1)(a).

Section 18 - statement of reasons for the 2001 competition

In your letter to UCC you requested that you be given reasons for the decisions of the Lecturer Promotions and Establishment Board not to short-list you for the 1999 and 2001 competitions for the position of [particular grade]. UCC refused to provide a 'statement of reasons' in relation to the 1999 competition. I will address this matter later in my decision.

Following your request for an 'internal review' of its 'statement of reasons', UCC provided you with a revised 'statement of reasons' in relation to the 2001 competition. This statement is the report from the sub-group of the Lecturer and Establishments Board dated Tuesday 18 July 2002.

Your request for a 'statement of reasons' is a request under section 18 of the FOI Act. Section 18 provides that a person who is affected by an act of a public body and has a material interest in a matter affected by the act or to which it relates is entitled to a statement of the reasons for the act and of any findings on any material issues of fact made for the purposes of the act. Where a requester applies for a review of a decision of a public body on the ground that s/he is not satisfied with the contents of the statement my role is confined to deciding whether the public body has complied with the requirements imposed on it by section 18, i.e. is the statement given adequate. My remit does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought.

In its submission to me of 23 October 2002 UCC explained the procedure for short-listing candidates for interview for the position of [particular grade]. This procedure is set out in detail in its booklet entitled "Academic Promotions and Establishment Scheme". The booklet states that :

"In considering applications for promotion to the grade of [particular grade], account will be taken of three broad areas of activity, viz;

• Teaching and Examining
• Research and Scholarly Standing
• Contributions to Department, College and Community

Candidates must demonstrate achievement in all three but may be promoted on the basis of excellence in two, which must include Teaching and Examining."

The three criteria are elaborated on in Appendix 1 of the booklet.

UCC has informed me that each application is considered by a subgroup of the Lecturer Promotions and Establishment Board against the three promotion criteria with a view to determining a list of candidates to be short-listed for interview. The assessment of applications is conducted on a dual basis against (a) the candidate's achievements relative to the stated criteria for promotion, and (b) the candidate's achievements based on a comparison against other applicants. UCC has pointed out that the scheme is a qualitative assessment and does not involve the use of a scoring or ranking system, rather the candidates are split into two groups on the basis of their achievements i.e. those selected for interview and those that are not. In the case of applicants not selected for interview, the subgroup and the Board record the reasons for their decision in the context of identifying areas where it is felt the candidate might focus on improving with a view to being successful in possible future applications.

At this point it would be useful to set out what I consider should be the principal features of a statement of reasons having regard to section 18. In my view, a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. The statement should be sufficiently clear to enable the requester to understand without undue difficulty why the public body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act. However, I do not consider that a statement should necessarily have to contain a detailed clarification of all issues identified by a requester as relevant to a particular act or decision.

You have suggested that the Board needs to give comparisons between you and other candidates in order to explain its decision and that it is necessary for UCC to offer a "systematic" assessment of your performance against each criteria. In the statement of reasons dated 18 July 2002, UCC has explained in detail those areas of your application which fall short of the criteria used by UCC in deciding who to short-list for interview. As explained above, the scheme used is a qualitative one where no scoring or ranking of candidates is made. While I appreciate that you wish to know how you performed in relation to other candidates the scheme used by UCC would seem unable to facilitate this request. The scheme results in applicants being either considered for interview or not. I make no comment on the appropriateness of the scheme used by UCC. As I already mentioned an adequate statement of reasons under section 18 may not always address questions which a requester may like it to address.

I have examined the statement of reasons supplied to you by UCC. It addresses your application in relation to each of the criteria used by UCC. The "act" in question here is UCC's decision not to short-list you for interview. The statement of reasons details what factors UCC took into account and the reasons for its decision not to short-list you for interview. Accordingly, I am satisfied that the statement of reasons meets the provisions of section 18 of the FOI Act.

UCC's refusal to provide a statement of reasons

As part of your request to UCC you requested a statement of reasons under section 18 for its decision not to short-list you for interview for the position of [particular grade] in December 1999. UCC decided to refuse your request on the ground that it was not required to provide a statement of reasons in relation to an "act" which took place before UCC was prescribed for the purposes of the FOI Act.

There are a number of sections of the FOI Act and other legislation that are relevant in my consideration of whether the position of UCC is justified.

In Statutory Instrument 475 of 2001 the Minister for Finance made regulations prescribing a number of third level education institutions, including UCC, as "public bodies" for the purposes of the FOI Act. The regulations came into operation with effect from 1 October 2001.

Section 2(1) of the FOI Act defines "commencement of this Act" as "the time at which this Act...comes into operation" (i.e. 21 April 1998).

Section 2(1) provides that "public body" shall be construed in accordance with the First Schedule. The First Schedule provides a list of bodies that "shall be a public body" for the purposes of the FOI Act and paragraph 1(5) of the First Schedule provides for the prescription by the Minister of any "body, organisation or group" as a public body for the purposes of the FOI Act.

Finally, as explained earlier, section 18 provides that "..a person who is affected by an act of the body..." shall be given a statement of reasons for the "act" by the "head of a public body".

It is clear that the "act" or decision not to short-list you in December 1999 occurred prior to UCC being prescribed for the purposes of the FOI Act. UCC's position is that it is not required to provide a statement of reasons under section 18 as section 18 does not apply "retrospectively" to its acts. In its submission to me of 21 November 2002 UCC has elaborated on its argument. The main points of its submission can be summarised as follows:

• UCC was not a "public body" until 1 October 2001 and therefore the provisions of the FOI Act did not apply to it until that date.
• The "act" or decision in question was made by UCC when it was not a "public body".
• UCC accepts that there is a right of access to records held by it from 21 April 1998 . However this is because section 6(4) specifically provides for a right of access to records created "after the commencement of this Act" (i.e. after 21 April 1998). There is no specific or similar provision in section 18.
• It has been established in law that a statute should not be interpreted retrospectively. In the absence of any clear intention to the contrary section 18 should be interpreted as not applying to "acts" occurring before 1 October 2001 in relation to UCC.

In my decision 98095 - Mr AAV and Dept of Social Community and Family Affairs, I found that section 18 does not apply retrospectively, i.e. before the commencement of the FOI Act. However that was in relation to public bodies which were subject to the provisions of the FOI Act from 21 April 1998, i.e. the date of the coming into operation of the FOI Act. In that decision I also stated that it may be different if an "act" had continuing effect after 21 April 1998. For example some acts might deny the payment of a continuing benefit to an applicant. In that decision I accepted that :

"...there is nothing in the Act which indicates an intention to make section 18 retrospective".

I also accepted that :
"As a general rule of statutory interpretation a statute is presumed not to be retrospective except where the statuary provision is clear that it is intended to be retrospective..."

The question I must address in this case is whether UCC is required to provide a statement of reasons only for acts occurring from when the regulations have effect, or do the regulations create an obligation to provide a statement of reasons for acts occurring from the commencement of the FOI Act. It seems to me at this stage that the only relevance that the date of 21 April 1998 has is that it is the date provided for by section 6(4) to which a right of access to records exist. The FOI Act provides for a completely separate right under section 18. There is no specific reference in section 18 to any date from which this right shall exist in relation to an act of a public body. Additionally there is nothing in the regulations which indicate an intention to make the provisions of section 18 retrospective to those bodies so prescribed.

As I stated in decision 98095 - Mr AAV and Dept of Social Community and Family Affairs, section 18 requires a certain amount of work on the part of the public body in order to respond to a request made pursuant to section 18. It is not procedural in nature. In the case of acts that occurred before a body was prescribed, it may often be that the public body will not have recorded any reasons for its acts although good administration practice may have required it do so. With the passage of time and changes in personnel it may be impractical to give reasons for an act. This is particularly so for bodies that are not yet prescribed for the purposes of the FOI Act. In my view it would not have been the intention of the Oireachtas to compel bodies, who may at some time in the future become subject to the provisions of the FOI Act, to provide a statement of reasons in relation to any act that occurred since 21 April 1998.

It will follow from what I have said that I accept much of what UCC has argued in its submission. Having regard to the points made by UCC and in the absence of any clear intention to the contrary I find that UCC is justified in refusing to provide a statement of reasons under section 18 of the FOI Act as requested by you.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I vary the decision of UCC in that I direct that it grant access to :

• paragraph 5 on page 3 of record 6
• paragraph 5 on page 2 of record 22
• the areas of improvement for a number of candidates not short-listed for interview contained on the page attached to the minutes of 18 December 2001 (but not the names of the candidates).

I find that the statement of reasons provided by UCC in relation to the 2001 competition meets the requirements of section 18 of the FOI Act. I also find that UCC is justified in refusing to provide a statement of reasons under section 18 in relation to the 1999 competition.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner