The Senior Investigator found that the College is justified in its decision to refuse access to the withheld records on the basis of sections 10(1)(a), and 28(1) of the FOI Act. She affirmed the decision of the College. She further found that the public interest in granting the request did not outweigh the public interest in upholding the right to privacy of other individuals involved.

Case Summary

Whether the College is justified in its decision to refuse access to records concerning the selection process for a training programme for which the applicant was a candidate. The Applicant made a request under section 7 of the FOI Act and part of the request was refused on the basis that the records are exempt from release under sections 10(1)(a), 21(1)(a) and 28(1) of the FOI Act.

Date of Decision: 14.10.2010

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

Background:

On 17 July 2009 the Applicant made an FOI request to the College for access to records regarding his application and interview in 2008 for a particular Training Scheme. On 29 July 2009 the College issued a decision purporting to grant access to the records despite the fact that the names of the interviewers were withheld. The Applicant made a second FOI request on 23 August 2009 for the following information:

1 "Specific breakdown of marks as opposed to the general categories that I received - that is exactly what points were awarded for in each section .......

2 A list of the courses that points were being awarded for during short-listing.

3 The names of the interviewers corresponding to their number on the panel and the points that they awarded to me. In your response it was only listed as interviewer 1 etc.

4 What each interviewer awarded me points for in relevant categories and any notes that were made during the interview or subsequent to it pertaining to me.

5 Regarding the candidate who had their marks changed, at what stage of the overall process were they changed as this affected my overall standing."

The College refused this request by saying that the information previously released to the Applicant on 29 July 2009 "contained the sole records" held by the College in relation to his request. In its internal review decision, the College upheld its original decision but cited sections 21 and 28 of the FOI Act as well as section 10(1)(a). It also released the names of the interviewers on the interview panel at bullet point 3 above. The applicant wrote to the Commissioner on 7 May 2010 seeking a review of the College's decision.

In conducting this review, I have had regard to the submissions of the College as well as those of the applicant (including those made to the College). I have also had regard to additional information and clarification provided by the College at the request of this Office and to the provisions of the FOI Acts.

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

Scope of the Review

In its original decision the College released the document titled "Breakdown of points by the Interviewer" with the names of the interviewers deleted. Subsequently the College released the names of the interviewers without matching the names to the marks awarded to the Applicant. During the course of this review and following this Office's communications with the College, it released the full and complete document item number 3 and 4 (part) above. This review therefore, is concerned solely with the question of whether the College is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to the withheld records at 1, 2, 4 (part) and 5 above.

Submissions

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Findings

Section 10(1)(a)

The College relied on section 10(1)(a) of the FOI Act to refuse access to the additional records sought at items 1, 2 and 4 (part) above. Section 10(1)(a) provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases 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 on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) According to the College, the records of unsuccessful candidates in competitions were retained by the Surgical Training Office and stored in the basement. The College said that it decided in March 2009 to introduce a policy to shred the records of unsuccessful candidates within one month of shortlisting and placed a notice to this effect on the College website. However, it said that this policy was reviewed in 2010 and having consulted with other post graduate surgical training bodies, it decided to revise its policy and retain the records of unsuccessful candidates for 24 months after shortlisting. In keeping with the above policy, the College said that the applicant's records were shredded in May 2009 when files were cleared out and shredded by the Surgical Training Office.

The College contends that all interviewers are requested to leave any notes taken during the interview in the interview room. However, having contacted each of the interviewers to enquire if they had retained any notes from the selection process, the College said that none of the interviewers had retained any notes. According to the College, "a full and thorough search was carried out by the Surgical Training Office to include a physical search of all hard copies of documentation stored in the Surgical Training Office. This physical search included a thorough search of the Office's filing cabinets and documents stored in archive in the basement of the building in which the Surgical Training Office is located. All network directories were also searched by the IT Department through the file server..." It is the position of the College that the records relating to the Applicant's application and interview for the Training Scheme at issue in 2008 were shredded and no longer exist.

It may well be the case that records ought to have been retained by the College; however, unless those records are now extant, their release under the FOI Act cannot be secured. Given the responses of the College to this Office's queries and the examination of its record keeping practices for the relevant period, I am of the opinion that the College has carried out an adequate search in relation to these records. In summary, my view is that the College is justified in its conclusion that the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I find accordingly that section 10(1)(a) of the Act applies.

Personal Information

The College explained that during the course of the relevant interview in March 2008, it was noted that an administrative error had been made with regard to one of the candidates whose scoring was found to be incomplete. According to the College, the matter was reviewed by the administrative team on 6 March 2008 and it was discovered that the other candidate was marked on only 2 out of 4 of the candidate's submissions which resulted in the ranking being changed. As a result, the applicant's ranking was subsequently downgraded.

Section 28

The College refused access, on the basis of section 28(1) of the FOI Act, to records concerning the results of a candidate whose marks were changed due to an administrative error. Section 28(1) provides that access to a record shall be refused if access would involve the disclosure of personal information of a third party. It is clear that competition results of another candidate are the personal information of that person. The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the exceptions relevant in section 28 applies.

Section 28(2) provides for a number of exceptions. Of these the only ones which may have relevance are subsection (a) which provides for access to personal information which relates to the requester and subsection (b) which provides for access with the consent of the individual. It is clear that the marks of the other candidates do not relate to personal information about the requester. I have not been advised by the Applicant that he has the consent of any of the candidates whose marks he is seeking and it would not be appropriate for this Office to approach other individuals in this regard. The exemption could be set aside if on balance, 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.

The FOI Act recognises a very strong public interest in protecting privacy rights. The applicant's submission emphasises his view that the changing of the marks of one candidate contradicts the rules and regulations laid out and must be questioned. The college decided that disclosure of the other candidate's information was not in the public interest. It seems to me that one possible public interest factor is the public interest in requesters exercising their rights under the Act. A second is the possible public interest in exposing wrongdoing, error or unfairness. A third is a possible public interest in achieving greater transparency in competitions.

There is an undoubted public interest in requesters, including the Applicant, exercising their access rights under the Act. However, having regard to the Long Title of the Act and to the specific terms of section 28 it seems to me that, generally, sufficient weight will not attach to this factor, of itself, to enable it to be said that the public interest in the exercise of access rights will outweigh the right to privacy of a third party.

In the present case, I accept that the Applicant attaches great importance to the information sought. However, I do not believe that disclosure in this case will involve no more than a minimal intrusion on the privacy of the other candidates. It is true that the information sought in this case might not be considered particularly sensitive by some. On the other hand, many candidates may feel that how they fared in a competition of the kind in question is a private matter between themselves and the College. Revealing their marks could expose them to comments, judgements and inferences of all kinds from work colleagues, acquaintances or unsuccessful candidates. Successful candidates may feel that, having satisfied the College about their suitability, they should not have to run the risk of being called upon to justify their performance again to other parties who might take a different view of the matter. Although the Applicant says that the information is for his own use, release under FOI is release to the world at large since no restrictions can be placed on the dissemination of the records obtained.

In relation to the error in the original marking, I should make it clear that it is not the function of the Information Commissioner to second guess the work of the College. Thus, where marks have been corrected, I have to assume in the absence of any other evidence that the marks were awarded in good faith. The Applicant has been provided with much of the information about his own candidacy and about the interview board and the College has given details of how and when the error in marking occurred.

On balance, the public interest in granting access to records containing the personal information of a person other than the applicant does not, in the circumstances of this case, outweigh the public interest in upholding the right to privacy of the person to whom the information relates.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the College under sections 10(1)(a) and 28 of the FOI Act.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

14 October 2010