Whether the Department was justified in deciding to refuse access to records relating to an internal employment competition.

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

Background

The applicant made a request to the Department on 23 April 2012 seeking "a copy of all documents that influenced the shortlisting board not to short list me amongst the eight that are being called to the next stage" of an internal competition for (.........) . The applicant also made a related application under Section 18 of the FOI Act, which is the subject of a separate review. In its original decision of 22 May 2012, the Department refused access to the seven records identified as relevant to the request on the grounds of Sections 10(1)(c), 10(1)(e), 46(2)(a) and 46(2)(b) of the FOI Act. The applicant made an internal review request to the Department on 23 May 2012. The Department's internal review decision of 14 June 2012 affirmed the original decision. The applicant made an application for review to this Office, dated 14 June 2012, received on 19 June 2012.

This Office established that the applicant had received all but part of one of the relevant records from the Department. The records were available to the applicant on the basis that he was a participant in the internal competition in accordance with the Department's processes for such competitions. The Department was asked to provide the applicant with the remaining part of one record on an administrative basis as it had indicated that such records would be made available to applicants for internal competitions on request. The applicant has confirmed that he has received this record. The applicant does not now dispute that he has received the records listed on the schedule.

This Office informed the applicant that that, as he had received the relevant records, there did not appear to be anything further to be addressed in the review and asked him to identify further relevant issues (if any) not later than 7 August 2013. While the applicant did reply to this communication, it was to raise procedural matters relating to the conduct of this review; he did not raise any substantive matters bearing on his original FOI request. In the circumstances, I have decided to bring this review to a conclusion by issuing a formal binding decision. In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, and to the provisions of the FOI Acts.

Scope of the Review

The scope of the review relates to whether the Department was justified in its decision to refuse access to the records identified as relevant to the request.

Preliminary Matters

In communications with this Office, the applicant has said that it is his view that other records, in addition to the seven identified by the Department, are relevant to the request. These further records relate to other applicants and to their marking sheets. I am satisfied that the records identified as relevant by the Department represent a reasonable and logical interpretation of the request. If the applicant wished that specific records or types of records be considered, this should have been set out clearly in the original request. I take the view that these further records were not encompassed in the request as made by the applicant and are not, therefore, relevant to this review.

Analysis and Findings

The Department has released all the relevant records, as identified on the Department's schedule, to the applicant and he accepts that this is the case. This being the case, there is nothing further to be considered as part of this review and I find accordingly.

However, for the record, it is relevant to point out that the grounds relied upon by the Department in refusing the request appear not to have been valid grounds for a refusal. In the circumstances, it is not necessary to deal with this in any detail. However, to take just one example, the Department relied upon Section 46(2)(a) and (b). These provisions exclude from the scope of the FOI Act a record which is "available for inspection by members of the public" or which is "available for purchase or removal free of charge by members of the public". In fact, the records provided to the applicant by the Department are not records available to members of the public - whether by inspection or purchase or removal - rather their availability is confined to those who participated in the particular competition.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby annul the decision of the Department. In the circumstances of this review, where the applicant has now been given access to all the relevant records, it is not appropriate or necessary for me to make any further decision or to direct any further action by the Department.

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. Any such 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.

Fintan Butler
Senior Investigator
15 August 2013