Whether the HSE was justified in refusing the applicant access to interview score sheets and evaluation sheets for all candidates interviewed for a position in a Hospital 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 10 July 2014, the Hospital received an FOI request from the applicant for the interview score sheets and evaluation sheets in respect of all candidates interviewed for a position in the Hospital in March 2014.

In its decision dated 15 October 2014, the HSE refused access to all records coming within the scope of the applicant's request, on the basis that they contained personal information of third parties. The applicant sought an internal review of this decision on 25 October 2014 and asked that any personal information of other candidates for the position be redacted. The initial decision of the HSE to refuse access to all relevant records under section 28(1) of the FOI Act was upheld in the internal review decision of 4 December 2014. On 26 January 2015, the applicant applied to this Office for a review of the HSE's decision.

In conducting this review I have had regard to correspondence between the applicant and the HSE, to the applicant's correspondence with this Office, and to the contents of the records at issue. The Hospital informed this Office that the applicant was provided with a copy of his own interview records.

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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.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 HSE was justified in refusing access to the interview score sheets and evaluation sheets for all other candidates in the relevant job competition on the basis that the information sought is exempt from release under section 28(1) of the Act.

Analysis and Findings

The records identified as coming with the scope of the applicant's request comprise the interview notes and marking sheets of the five interviewed candidates, including the applicant. Marks were awarded under a number of categories. The interview notes detail the questions posed by the interviewers and the candidate's responses. In seeking access to these records, with the personal information of the other four candidates redacted, the applicant argued that no personal information was sought.

The HSE 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. As personal information must be information about an identifiable individual, I am satisfied that the release of the information sought without the redaction of the names of the candidates would disclose personal information about those individuals.

The question I must consider, however, is whether the release of the scores and interview notes of the other candidates, with their names redacted, would involve the disclosure of personal information about identifiable individuals. Given the small pool of candidates involved, I am satisfied that the release of the information sought, even in redacted form, 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 HSE in competitions for specified posts.

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 HSE providing the applicant with access to his individual marks and interview notes. 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. 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. I find that the HSE 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 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 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