Case 100174

The Senior Investigator found that the HSE is justified in its decision to refuse access to the withheld records on the basis that they are exempt from release under section 28 of the FOI Act. She also found that the public interest in granting the request did not outweigh the public interest in protecting privacy rights.

Case Summary

Whether the HSE is justified in its decision to refuse a request for certain records made under section 7 of the FOI Act on the basis that they are exempt from release under the provisions of the FOI Act.

Date of Decision: 08.10.2010

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

Background:

On 30 April, 2010 the applicant made an FOI request to the HSE for access to records relating to the recruitment and appointment of a candidate to a position in the HSE. The specific records requested were (1) the CV; (2) the marks given; and (3) any written remarks recorded during the interview in relation to the selected candidate for the post. On 3 June, 2010, the HSE issued its decision refusing access to the requested records on the basis of Sections 26 and 28 of the FOI Act. The applicant sought an internal review on 16 June, 2010 and the HSE in its internal review decision of 5 July 2010 upheld its original decision. The applicant wrote to this Office on 22 July 2010 seeking a review of the HSE decision.

In conducting this review, I have had regard to the submissions of the HSE as well as those of the applicant, the provisions of the FOI Acts, and the contents of the preliminary views letter, dated 14 September, 2010 sent to the applicant by Ms. Anne O'Reilly, Investigator, of this Office. The applicant responded on 27 September, 2010 indicating that he does not accept Ms. O'Reilly's assessment and I have decided therefore to proceed to a formal binding decision on the issue.

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 Review

This review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to the withheld records identified above on the basis that they are exempt from release under the provisions of the Act.

Submissions

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Findings

In its decisions on this FOI request, the HSE relied on Sections 28(1) - personal information of an individual other than the requester - and 26(1)(a) - information given in confidence - to withhold the records sought by the Applicant. In the circumstances of this case it appears that the provisions of Section 28 are most relevant to the records.

Section 28

Section 28(1) provides that:-

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual)".

In this case, the Applicant is seeking access to records the release of which would involve the disclosure of personal information about a person other than himself. Section 2 of the FOI Act defines personal information as:-

".... information about an identifiable individual that-

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

(b) is held by a public body on the understanding that it would be treated by it as confidential."

However, as explained by Ms O'Reilly in her preliminary views letter to Applicant, the FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the foregoing 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 ...."

If the successful candidate accepted the position offered to him or her, the name and any qualifications made public in the course of the carrying out of his or her duties do not constitute personal information in the context of the post of Clinical Director. Nevertheless, the individual is normally entitled to privacy in relation to the candidacy for the job.

The Public Interest

Under section 28(5), however, 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."

Section 28(5) provides that a positive public interest can outweigh privacy rights. It seems to me that three possible public interest factors arise in this case. The first is the public interest in requesters exercising their rights under the Act. The second is the possible public interest in exposing wrongdoing, error or unfairness. The third is a possible public interest in achieving greater transparency in competitions for posts in the public service. There is an undoubted public interest in requesters 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, that he feels that the outcome of the competition was unfair, that favouritism was a factor and that he believes that he can prove this to be the case if he can gain access to the educational qualifications and the marks awarded to the successful candidate. However, I consider that disclosure in this case would involve an intrusion on the privacy of that candidate. Many, if not all, candidates may feel that how they fared in a competition of the kind in question is a private matter between themselves and the employer. 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 Interview Board about their suitability for a post, 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. In the circumstances, I consider that the public interest in the Applicant exercising his access rights does not, of itself, outweigh the right to privacy of the other candidate.

The second public interest which I mentioned is the public interest in exposing any wrongdoing, error or unfairness of procedure in the management of the competition in question. I accept the Applicant's point that the best qualified individual should be appointed to the position. However, the Applicant appears to dispute the proposition that where marks have been awarded by an interview board, in the absence of clear and specific evidence to the contrary, it is reasonable for this Office to assume that the marks awarded were awarded fairly. Notwithstanding the Applicant's strong assertions that the process was unfair, no information has been presented that would allow me to conclude that wrongdoing had occurred in respect of this competition. It is not the role of this Office to second guess the interview board's assessment; neither can I assume that the judgment of the board was flawed when awarding marks.

It is clear from the Long Title to the Act to which Ms O'Reilly has drawn attention, that the Act does not set out to grant requesters a complete and unfettered right of access to all records held by public bodies. Among other things, it recognises that the right of access must be balanced in some cases against the right to privacy of other individuals. .

The final public interest factor which I mentioned above is the possible public interest in greater transparency in the running of competitions for posts in the public service. It could be argued that there is a public interest in greater transparency in the conduct of competitions of this kind. Disclosing the marks obtained by all the candidates in these competitions, it might be argued, could help to promote fairness in the procedures used by the board in assessing the candidates and might guard against bias. However, as I have already indicated, disclosure of the marks could lead to a situation where successful candidates were obliged on an ongoing basis to justify to unsuccessful candidates the decision of the board in relation to them. I find the possibility of such an outcome is greater in competitions such as the one under discussion, where the majority of the candidates are known to each other, may even be employed by the same organisation and could be competing against each other in similar circumstances in the future. It seems to me that such an outcome could only have a detrimental effect on the working relationships of some of the parties concerned and is not in the public interest. Naturally, there is a public interest in a candidate being given access to material which will allow him/her to understand how his/her own candidacy was assessed. However, this does not require access to the marks of other candidates.

Other Exemptions

As I find that the records in question are exempt from release under the provisions of section 28 of the FOI Act it is not necessary for me to consider any other exemptions claimed by the HSE. 

I do not find any basis for concluding, that the release of the records would be to the benefit of the individual concerned. I must, therefore,consider whether the records should be released in the public interest.I am satisfied that the CV, marks and interview notes relating to the selected candidate qualify as personal information on the basis that they are held by the HSE on the understanding that they are confidential and come within specific categories of information set out in the definition. On the face of it, therefore, the records qualify for exemption under Section 28 of the Act.In his submission of 27 September, 2010 to this Office the Applicant states, in relation to the selected candidate's CV, that all he needs is the individual's qualifications. The Applicant goes on to make the point that "..doctors display their qualifications publicly when they sign their names and also in their place of work where you find their qualifications displayed on the walls of their office." He confirms that he also wishes to have access to the candidate's marks in a particular area. Section 28(2) provides for a number of exceptions to this, and of these, the only ones which have relevance are subsections (a) which provides for access to personal information which relates to the requester and (b) which provides for access with the consent of any other individual to whom the information relates. It is clear that the records sought by the applicant, i.e. the CV, marks and interview notes of the selected candidate, do not relate to personal information about the Applicant and I have not been advised that the candidate to whom the information relates has given consent. In certain instances it may be appropriate for the Information Commissioner to seek the consent of a third party where the public body has not done so. In my view, this is not such a case. However, if this Office were inclined to direct the release of personal information to a third party in the public interest, it would, of course, be obliged to consult the person to whom the information related and consider their views on the matter in advance of any such decision.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE 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 a review must be initiated not later than eight weeks from the date on which notice of the decision was given.

Elizabeth Dolan

Senior Investigator

08 October 2010