Case 031099. Application for reasons why marks were awarded under each 'component' of promotion interview criteria - whether 'act' for which the reasons sought confers on or withholds from the person a benefit - whether a public body is obliged to provide reasons for every secondary 'act' of a public body- section 18

Case Summary

Facts

Following an interview for a position in the Department, Mr X was not placed on the panel for the position. Mr X then sought the reasons why he was awarded certain marks under each of the 'components' or sub-sections of the marking criteria for the competition. While the Department provided reasons for his overall mark, and the reasons why he was not placed on the panel, it did not explain how it had arrived at the marks for each of the 'components' identified.

Findings

The Commissioner found that a person is not entitled to a statement of reasons under section 18 for every act of the public body which feeds into the 'substantive' act. The Commissioner explained that section 18 provides that a person must have a material interest in a matter affected by the act to be entitled to a statement of reasons. The FOI Act provides that a person has a 'material interest' if, "the consequence or effect of the act may be to confer on or withhold from the person a benefit...". In this case the act or decision of the public body which conferred on, or withheld from Mr X a benefit was the Department's decision not to place him on the promotion panel. It could not be said that any one of the particular 'decisions' to award certain mark for each component, alone, conferred on or withheld from Mr X a benefit.

For the guidance of public bodies generally the Commissioner stated that the substantive act or the act which confers on or withholds from the person a benefit will vary from case to case. In some cases it may be difficult to determine which particular act of the public body confers on or withholds such a benefit. As a result each section 18 application must be examined on its own merits having regard to the particular circumstances concerned.

Date of Decision: 14.02.2005

Our Reference: 031099

14.02.2005

Mr. X

Dear Mr. X

I refer to your application for review of the decision of the Department of Agriculture and Food ("the Department") following your application for a statement of reasons in relation to a promotion competition held in October 200X. At the outset I wish to apologise for the delay in dealing with your application.

Background

I have now completed my review of the Department's decision which I have carried out in accordance with the provisions of the FOI Acts, 1997 and 2003 (the FOI Act). Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended.

In carrying out my review I have had regard to your submissions to this Office and your telephone conversations with Mr. Nutley of this Office. I have also had regard to the submission of the Department and the statement of reasons provided in its letter of 30 January 2004 which was copied to you during the course of this review. I have also examined the records relating to the promotion competition which have been released to you by the Department. I note that in his letter of 6 January 2005, Mr. Nutley set out his preliminary view that the statement of reasons provided by the Department met the provisions of section 18 of the FOI Act and offered you an opportunity to respond. Accordingly, in concluding my review I have regard to your response of 24 January 2005.

Scope of Review

In your original application to the Department dated 1 October 200X you sought a statement, under section 18 of the FOI Act, for the reasons why you were:

"a) Not offered a position as xxxxxx. b) Not placed on the Promotion Panel for xxxxxx. c) Awarded such poor markings under each component and relevant subsection. d)... reasons for the marks awarded to me for each component and relevant subsection(s) under the marking criteria drawn for this interview"

During the course of the review you indicated that you were satisfied with the reasons supplied by the Department in relation to (a) and (b). Accordingly, my review is concerned solely with your application at (c) and (d).

Findings

I note that in his letter of 6 January 2005 Mr. Nutley explained the provisions of section 18 to you and my interpretation of that section in previous decisions. As Mr. Nutley explained, 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 a statement of reasons provided under section 18 of the FOI Act, 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. Therefore, I have no role in deciding the appropriateness of the marks awarded to you or whether the Department conducted the promotion competition correctly or not.

You will note from Mr. Nutley's letter that a person is only entitled to a statement of reasons under section 18 for the act of a public body if that person is affected by the act and has a material interest in a matter affected by the act or to which it relates. Section 18(5) provides that a person has a material interest in a matter affected by an act of a public body or to which it relates:

"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

Clearly, there will be many acts/decisions taken by public bodies where section 18 has no relevance. As I have stated in previous decisions:

"Section 18 does not apply to every action of a public body. The Oireachtas could not have intended that public bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the public body and its officials. Taking section 18 as a whole, it seems to me that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit."

It will follow that a key consideration as to whether a person is entitled to a statement of reasons for an act of a public body is whether the act has the consequence or effect of conferring on, or withholding a benefit from the person. In this case the act or decision of the public body which confers on, or withholds from you a benefit is the Department's decision not to place you on a panel for xxxxxx. Therefore, under section 18 of the FOI Act you are entitled to a statement of the reasons for this particular decision.

However, you have also sought reasons why certain marks were awarded to you for each of the three components which made up your overall marks. In relation to 'Component 2 - Experience and Communication Skills', you also sought the reasons why certain marks were awarded to you for each of the four sub-sections which made up this component. I do not accept that section 18 entitles you to a statement of reasons for the marks awarded to you for each of the three components or relevant sub-sections. This is because it cannot be said that any one of these particular 'decisions', alone, conferred on you or withheld from you a benefit. While the marks awarded to you for each of the three components clearly affected your overall marks and ultimately the Department's decision not to place you on the panel, it is only the substantive decision, i.e. the Department's decision not to place you on a panel for xxxxxx, for which you are entitled to a statement of reasons under section 18. There will be many instances where a number of secondary actions/decision are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, I do not believe that section 18 entitles a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision. Therefore, in this case, I do not accept that you are entitled to a statement of reasons for the Department's decision to award you particular marks for each of the three components and various sub-sections.

For the guidance of public bodies generally I wish to state that the substantive act or the act which confers on or withholds from the person a benefit will vary from case to case. In some cases it may be difficult to determine which particular act of the public body confers on or withholds such a benefit. As a result each section 18 application must be examined on its own merits having regard to the particular circumstances concerned.

In many instances, statements of reasons provided by public bodies go into some detail regarding each of the secondary actions/decisions. There is nothing in the FOI Act preventing a public body from doing so if it so wishes and if such action is not prohibited by any other law. However, as mentioned above my role is solely to decide whether any statement of reasons provided by a public body is adequate in the sense that it meets the requirements of section 18. For the reasons set out by Mr. Nutley in his letter of 6 January 2005, I am satisfied that the statement provided by the Department in its letter of 30 January 2004 explains why the Department acted as it did in this particular case.

I note that the Department has provided you with the marks awarded to you for each of the three components and, in relation to 'Component 2 - Experience and Communication Skills', the four sub-sections that made up this component. I note that one of these sub-sections, 'Communication Skills', is further divided into four elements, i.e. Oral, Written, I.T. and Presentational Skills. The Department did not provide you with the marks for these four elements. I have already found that you are not entitled to a statement of reasons under section 18 for the award of these marks. Notwithstanding this, during the course of this review, the Department was contacted to see if it could make these marks available to you. As you have already been informed the Department has stated to this Office that despite checking with two members of the interview board, a third member who is now retired and examining your personnel file, where such records are normally filed, it cannot locate any records which record these marks. While you are no doubt disappointed with this outcome this does not form part of my review in this case.

In your submissions you have made a number of comments regarding the manner in which the Department assessed candidates, including its decision to award marks for written skills based on the manner in which a CV was presented. As I mentioned earlier in my decision I cannot make any comment on this matter as it is not my role to decide the appropriateness of how the Department conducted its promotion competitions at the time.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of the Department in this case.

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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner