The Senior Investigator found that UCC's decision to refuse access to the records sought is justified under section 28(1) of the FOI Act and affirmed the decision accordingly.

Case Summary

Whether UCC's decision to refuse to grant access to further records relating to other candidates in a job competition is justified.

Date of Decision: 17.05.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The Applicant was an unsuccessful candidate for the post of Clinical Education Co-ordinator in the UCC Faculty of Law who has brought a complaint against UCC under the Employment Equality Acts 1998 and 2008. His original FOI request in this case, dated 2 December 2008, sought numerous items of information regarding the selection process for the post. UCC granted the request in part, but refused access to certain records, or parts thereof, which it considered relevant to the request.

In a letter dated 12 February 2009, the Applicant applied to this Office for a review of UCC's decision in relation to the following items of his request:

• 4.xxiv - the interview records of each candidate, with confidential or personal information redacted as necessary;
• 4.xxx - the name and age of the successful candidate;
• 5.ii - "Of the candidates short-listed for interview, how many were male and how many were female?";
• 5.iii - "Of the candidates short-listed for interview, how many were solicitors and how many were barristers?";
• 5.iv - "Of the candidates short-listed for interview, how many (if any) did not hold a professional qualification and of those candidates (if any) please confirm the highest qualification which they respectively held at the date on which they were called to interview".

In relation to item 4.xxx, the Applicant stated that, since making his request, he discovered the identity of the successful candidate and therefore "simply require[d] confirmation of her age".

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act. In conducting this review, I have had regard to the submissions made by the UCC and the applicant, including the Applicant's written comments dated 1 April 2010 in response to the preliminary view letter issued by Ms. Melanie Campbell, Investigator, on 18 March 2010.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of the Review

In her preliminary view letter, Ms. Campbell advised the applicant that the FOI confers a general right of access to records rather than a general right of access to information. As Ms. Campbell explained, if the information sought is not contained in a record, the FOI Act does not impose an obligation on a public body to create a record where none exists; nor does it provide a mechanism for answering questions, or for seeking clarification, except to the extent that the question posed or clarification sought can reasonably be inferred to be a request for a relevant record that exists as of the date of the request, and which contains the answer or clarification sought. While on occasion a public body may decide to create or compile information, this is beyond what is required by the FOI Act, and the Information Commissioner has no power to request a public body to do so.

Ms. Campbell advised the Applicant that the records considered relevant to items 4.xxiv, xxx, 5.ii, iii, and iv of his request are the following:

1. the application forms and references submitted by the seven shortlisted candidates;
2. the interview records of each candidate;
3. the Selection Committee Report.

Ms. Campbell noted, however, that the application forms did not specifically ask for the age or gender of the candidates or whether the candidates were solicitors or barristers; therefore, these items of information could only be surmised from other information, such as the name of the candidate and the educational information provided. In his response to Ms. Campbell's letter, the Applicant did not dispute her observations regarding the records considered relevant to the items of his request at issue in this review.

UCC granted partial access to the interview records of the unsuccessful candidates. The Selection Committee Report has also been released with the exception of the names of the shortlisted candidates. Through the release of these records, the Applicant has been made aware of the total scores given to all of the shortlisted candidates; a general statement of the rationale for the decision made by the Selection Committee in relation to each of the candidates; and the breakdown of the scores given to the unsuccessful candidates in relation to the relevant criteria. The items of information remaining at issue are:

• the names of the unsuccessful candidates;
• the breakdown of the scores of the successful candidate;
• the "constructive comments for feedback" made by the Selection Committee regarding all of the candidates in connection with particular criteria;
• the handwritten notes taken by the Selection Committee members during the interviews; and
• the qualifications of the candidates.

My review in this case is concerned solely with the question of whether UCC's decision to refuse access to the relevant records in full or in part is justified under the FOI Act.

Submissions

.

Findings

Preliminary Matters

Before dealing with the relevant exemptions, I wish to make two points. The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 34(12)(b) of the Act, which requires UCC to show to my satisfaction that its decision to refuse to grant the request is justified.

Secondly, I wish to explain the Commissioner's approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

 Section 28

Although UCC has also made a claim for exemption under section 21(1)(b) of the FOI Act in relation to the records of the Selection Committee, I agree with Ms. Campbell that section 28(1) of the FOI Act, which relates to personal information, is the more relevant exemption to consider in relation to all of the records remaining at issue in this case.

Section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to a third party. Section 28(2) specifies certain exceptions to the exemption, none of which is applicable in the case at hand. I note, in particular, that information relating to the candidacy of the third parties concerned for the post of Clinical Education Coordinator is not available to the general public (section 28(2)(c) refers).

Definition of Personal Information

For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual, . . . (iii) information relating to the employment or employment history of the individual, . . . (vi) information relating to the religion, age, sexual orientation or marital status of the individual", . . . (x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, . . . [and] (xii) the views or opinion of another person about the individual".

In his reply to Ms. Campbell's preliminary view, the Applicant refers to the exclusions to the definition of personal information. The exclusions specify that the definition of personal information does not include:

"(I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office, or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,

(II) in a case where the individual is or was providing a service for a public body under a contract for services with the body, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, or

(III) the views or opinions of the individual in relation to a public body, the staff of a public body or the business or the performance of the functions of a public body".

The Applicant states: "As the successful candidate already occupied a position as a member of staff of the above-named public body at the material time, records pertaining to her, and perhaps to other candidates if similarly engaged by the said public body, do not come within the ambit of section 28 of the said Act."

The Applicant's argument disregards the context in which the records at issue were generated. The pertinent exclusion to the definition of personal information in this case is intended, in essence, to ensure that section 28 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. As the former Commissioner observed in his decision in Mr. Richard Oakley, The Sunday Tribune Newspaper and the Office of the Houses of the Oireachtas, Case Number 99168 (1999), available at www.oic.gov.ie, "[g]enerally speaking, the enactment of the FOI Act does not affect existing understandings that information about an individual of an essentially private character be treated as confidential." Thus, for instance, in Ms X and the Department of Finance, Case Number 020311 (2002), also available at www.oic.gov.ie, the former Commissioner observed that "public servants, as with all employees, are entitled to a degree of privacy in relation to the evaluation of their work performance, competence or ability".

In this case, if the successful candidate previously held a position as a member of staff at UCC, her name was not personal information in the context of the position that she held. However, her decision to apply for a new position, even a new position within UCC, would not have been taken "in the course of and for the purpose of the performance of the functions" of the position she previously held. The same is true for any of the unsuccessful candidates who may have held positions within UCC, or elsewhere in the public service, at the time of the competition for the post of Clinical Education Co-ordinator in the UCC Faculty of Law. Moreover, as the successful candidate accepted the new position offered to her, her name is not personal information within the context of her position as Clinical Education Co-ordinator and thus has been made available to the applicant but she is nevertheless entitled to a degree of privacy in relation to her candidacy for the job. I find that the exclusions to the definition of personal information do not apply to the records remaining at issue in this case.

Like Ms. Campbell, I accept that the application forms and references at issue were submitted in confidence and on the understanding that the information contained therein would be treated as confidential in the context of the selection process. I also accept that the names of the candidates in the context of the selection process, the information contained in their application forms and references, the interview records of the successful candidate, and the comments and notes which have been withheld from the interview records of the unsuccessful candidates are personal to the individual candidates concerned and thus qualify for exemption under section 28(1) of the FOI Act.

Partial Access under Section 13?

As Ms. Campbell noted, the Applicant is already aware of the name of the successful candidate; therefore, the release of any further information about her would necessarily be about an identifiable individual. A copy of the interview records of the unsuccessful candidates and the Selection Committee Report with the exempt material removed in accordance with section 13 have already been made available to the Applicant. In my view, it would not be practicable to grant partial access under section 13 to any further records.

This case presents a significant risk of pooling information in a manner which would facilitate the identification of one or more of the other candidates. The number of other shortlisted candidates is very small and a considerable amount of information about the selection process has already been made available to the Applicant. Moreover, according to the Applicant's own argument, some information relating to the candidates' professions and qualifications may be publicly available. While I do not accept that any such information is publicly available in the context of the selection process for the post of Clinical Education Co-orinator, I am nevertheless mindful of the possibility that information may be easily pieced together in such a way as to result in a violation of the right to privacy of one or more of the third parties concerned. The former Commissioner was also mindful of the possibility of pooling information in Ms. ABH and the Office of the Local Appointments Commissioners, Case Number 98187 (1999), available at www.oic.gov.ie, where he found that section 28 applied even to the anonymised marks of other candidates, information which in this case has been released. Therefore, subject to section 28(5) of the FOI Act, I am satisfied that section 28(1) applies to the records remaining at issue.

Application of section 28(5)

Under section 28(5), access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. No argument has been made, nor do I find any other basis for concluding, that the release of the records at issue would be to the benefit of the third parties concerned. I must therefore consider whether the records should be released in the public interest.

The FOI Act recognises a very strong public interest in protecting privacy rights and this is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). The right to privacy also has a constitutional dimension in Ireland. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting the constitutionally recognised right to privacy.

In her preliminary view, Ms. Campbell acknowledged the public interest in openness and transparency to ensure fairness in competitions held by public bodies. However, she considered that release of further information regarding the candidates to the applicant would not enhance the public interest in fairness, openness, and transparency to a sufficient extent to outweigh the strong public interest in the protection of personal privacy.

In his reply to Ms. Campbell's preliminary view, the Applicant argues that the "broad interpretation" given to the provisions of section 28(1) of the Act in this case is inconsistent with the judgment of Clark J. in P v. Information Commissioner [2009] IEHC 574, where it was found that the Commissioner placed had "undue emphasis" on the right to privacy of the third party concerned in that case. In her judgment, Ms. Justice Clark observed: "[I]t is clear that the intention of the Oireachtas was that the exemptions allowed by Part III of the Act of 1997 are to be interpreted restrictively and applied sparingly. If the exemptions are afforded too wide an interpretation, the refusal of access could become the rule instead of the exception and this would clearly frustrate the primary objectives of the Act of 1997."

In responding to this argument, I must first emphasise that the Applicant has already been granted access to a substantial amount of information regarding the selection process in question, including the total scores given to all of the shortlisted candidates; a general statement of the rationale for the decision made by the Selection Committee in relation to each of the candidates; and the breakdown of the scores given to the unsuccessful candidates in relation to the relevant criteria. The only records which have been withheld in full are the application forms and references submitted by the seven shortlisted candidates and the interview records of the successful candidate, whose identity the Applicant is aware of. Partial access was granted to the interview records of the unsuccessful candidates, with only the names, the "constructive comments for feedback" made by the Selection Committee in connection with particular criteria, and the handwritten notes taken by the Selection Committee members during the interviews having been removed. Moreover, the Selection Committee Report was released with only the names of the shortlisted candidates removed. In the circumstances, I consider section 28(1) has been "interpreted restrictively and applied sparingly" in this case.

Secondly, I note that the P v. Information Commissioner involved a very unusual set of circumstances, as Ms. Justice Clark implicitly acknowledged in the background section of her judgment when she referred to "a series of disturbing events" which preceded the FOI requests in that case. It involved the question of the right to privacy of a child (who was very young at the time the relevant records were created) in relation to a requester who had been treated as the child's biological father at the time of her birth and early period of her upbringing. Moreover, the information in question related to serious and unconfirmed allegations made against the requester in relation to the child. In contrast, this case has been brought by an unsuccessful and dissatisfied candidate for a public service job who claims that the selection process was discriminatory in some manner. As a general matter, I do not accept that such claims justify an intrusion on the right to privacy of the other candidates under the FOI Act.

I conclude that, in reaching its decision in the case, UCC appropriately balanced the public interest in openness and transparency on the one hand with the need to protect the privacy rights of the other candidates on the other. Accordingly, I am satisfied that UCC's decision to refuse access to the records at issue is justified under section 28(1) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of UCC in this case.

Right of Appeal

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 after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

17 May 2010