Whether the Defence Forces was justified in refusing access to details of the marks awarded to candidates in a specified promotion competition under section 28(1) of the FOI Act on the basis that the information sought comprises personal information relating to the candidates

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

Background

On 28 August 2014, the applicant sought from the Defence Forces details of the marks awarded to all candidates in respect of an Air Corps promotion competition held in December 2012, with the names of the candidates for promotion redacted.

In its decision dated 29 October 2014, the Defence Forces refused access to six records, on the basis that they contained personal information of third parties, and released one record to the applicant, the contents of which related to the applicant. The applicant sought an internal review of this decision on 21 November 2014. The initial decision of the Defence Forces to refuse access to six records under section 28(1) of the FOI Act was upheld in the internal review decision of 15 December 2014. On 6 January 2015, the applicant applied to this Office for a review of the Defence Force's decision.

In conducting this review I have had regard to correspondence between the applicant and the Defence Forces, to correspondence between the Defence Forces and this Office, to correspondence between the applicant and this Office, and to the contents of the records at issue.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The scope of this review is concerned solely with the question of whether the Defence Forces was justified in refusing access to details of the marks awarded to all other candidates in the relevant promotion competition on the basis that the information sought is exempt from release under section 28(1) of the Act.

Analysis and Findings

The seven records identified as coming with the scope of the applicant's request comprise a Promotion Board Assessment Report and a File Assessment Marking Table for seven candidates, including the applicant. Marks were awarded under a number of categories. In seeking access to the marks of the other six candidates with their names redacted, the applicant argued that that no personal information was sought.

The Defence Forces relied on section 28(1) of the FOI Act to refuse the request. That section provides that access to a record shall be refused by a public body if access would involve the disclosure of personal information relating to individuals other than the requester.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that would ordinarily be known only to the individual or his/her family or friends or that is held by the public body on the understanding that it would be treated as confidential. The definition goes on to include twelve categories of information that is personal information, including information relating to the employment or employment history of the individual and the views or opinions of another person about the individual. I am satisfied that the release of the information sought without the redaction of the names of the candidates who were awarded the relevant marks would disclose personal information about those individuals.

The question I must consider, however, is whether the release of the scores awarded to the other candidates, with their names redacted, would involve the disclosure of personal information about identifiable individuals. In a submission to this Office, the Defence Forces stated that the applicant is aware of his own position in the competition and of the identity of the successful candidate and that he has a close working knowledge of the remaining five candidates. It argued that the release of the marks only is likely to be insufficient to prevent the identification of the other five candidates and their respective performance. The applicant argued that the Defence Forces has already disclosed the identity of the candidates and that this undermines an argument that he would be able to identify the candidates from the information sought. I disagree. Indeed, the fact that the identity of the candidates is known increases the likelihood that the applicant will be in a position to associate the marks awarded to the various candidates. Given the small pool of candidates involved, I am satisfied that the release of the information sought would amount to a disclosure of personal information about identifiable individuals. I find, therefore, that section 28(1) applies to the information sought as it comprises personal information about identifiable individuals.

The exemption contained in section 28(1) is subject to the provisions of sections 28(2) and 28(5) of the Act. Section 28(2) of the Act sets out circumstances where section 28(1) does not apply. I am satisfied that section 28(2) does not apply in this case. Section 28(5) of the Act provides that a record which is otherwise exempt from release under section 28(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual.

I do not consider that the release of the information sought would benefit the individuals to whom it relates, as envisaged by section 28(5)(b) of the FOI Act, nor has the applicant made any argument in this respect. On the matter of whether the public interest in release of the information outweighs on balance, the public interest in upholding the privacy rights of the individuals to whom the information relates, I acknowledge that there is a strong public interest in optimising openness, transparency, and accountability in connection with the processes used by the Defence Forces in promotion competitions.

Arguably, such public interest considerations are served to some extent by candidates receiving feedback on their performance in the competition and, as happened in this case, by the Defence Forces providing candidates with access to their individual marks. The question I must consider is whether the public interest in releasing to the applicant the marks of the other individuals is sufficiently strong to outweigh, on balance, the privacy rights of those individuals. In my view, it is not. I note, for example, that the Defence Forces stated that all candidates entered into the promotion competition with the understanding that their privacy would be maintained, in accordance with the administrative procedures for Defence Forces promotion competition. Furthermore, the language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will 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 privacy. Having reviewed the submissions of both the Defence Forces and the applicant in this review, I find that the Defence Forces was justified in its decision to refuse access to the information sought on the basis that it is exempt from release under section 28(1) of the FOI Act.

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 Defence Forces 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.

Stephen Rafferty,
Senior Investigator