Whether Irish Water was justified in its decision to refuse access to records relating to the salary expectations of candidates as expressed at interview on the ground that the records sought do not exist

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to Irish Water on 20 February 2015 for access to information relating to the salaries of successful applicants for posts with the body. Specifically, he sought the following:

How many successful applicants were asked at interview about their expected levels of remuneration?
How the salary of those successful applicants compared to the expected remuneration they expressed at interview?
In how many cases was the salary less than expected?
In how many cases was the salary the same as expected?
In how many cases was the salary above that expected?

In a second request dated 22 February 2015, the applicant sought further information relating to those successful applicants whose salary exceeded the expected remuneration as stated at interview.
Specifically, he sought the following:

What is the maximum amount by which salary exceeded expected remuneration?
What is the average amount by which salary exceeded remuneration?
What is the minimum amount by which salary exceeded remuneration?

Irish Water dealt with both requests together and in its decision dated 23 March 2015, it stated that it does not capture salary expectation until a successful candidate is offered a position with Irish Water. It went on to give some quantitative information relating to its recruitment processes, including the number of staff recruited to date, and the approximate percentage of candidates who had declined a position with Irish Water due to the level of salary offered.

The applicant sought an internal review of Irish Water's decision stating that Irish Water failed to adequately respond to his request. On 8 May 2015 Irish Water issued an internal review decision refusing access to the records under section 15(1)(a) of the FOI Act on the ground that it does not hold records which contain the information sought. It added that if candidates expressed salary expectations and this was recorded, it could be in records held by recruitment agencies but that such records were not within the procurement of Irish Water. The applicant sought a review by this Office of that decision on 12 May 2015.

In conducting this review I have had regard to the correspondence between the applicant and Irish Water, and to the correspondence between this Office and both the applicant and Irish Water on the matter.

Scope of Review

This review is solely concerned with whether Irish Water was justified in its decision to refuse access to any records that contain the information sought by the applicant concerning the salary expectations of successful candidates as expressed at interview on the ground that the records sought do not exist.

Analysis and Findings

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. It is important to note that the FOI Act provides for a right of access to records. This means that if the information sought is not contained in a record held by the public body then it is not required to grant the request. Where a request is made in the form of a request for specific information, as opposed to a request for specific records, the FOI Act does not generally provide a mechanism for providing such information except to the extent that the request can be reasonably inferred to be a request for relevant records that exist as of the date of the request which contains the information sought.

The question arising in this case, therefore, is whether Irish Water holds records that contain the information sought by the applicant. During the course of the review, Irish Water stated that it holds certain records containing salary expectations of candidates but these records relate to the pre-screening stage. Irish Water argued that this stage was not the same as the interview stage and therefore, any such records would be outside the scope of the applicant's request. I note that Mr Benjamin O'Gorman of this Office sought further details of the pre-screening stage from Irish Water. In response, Irish Water stated that the pre-screening stage was conducted by both Irish Water and recruitment agencies. It described the external pre-screening process as follows:

Some outside recruitment agencies contacted candidates to seek clarifications on their experience and qualifications. Some of the agencies also conducted face-to-face meetings with candidates to screen the candidates further. At this point, the majority of candidates were informed of the salary on offer for the role and may have been asked if this was in line with their expectations. If the candidate supplied a response, this may have been noted by the agency. Following this process the agency then short-listed the top candidates to be invited to panel interview and provided details to Irish Water.

In relation to its own in-house recruitment process, Irish Water explained that all CVs were screened using a scoring sheet and the top eight to ten CVs were selected for phone screening. During the phone screening the majority of candidates were advised of the salary on offer and asked if that salary was in line with their expectations. Any response given by the candidate was noted by Irish Water.

Having considered Irish Water's explanation of the pre-screening stage I am of the view that the pre-screening process amounts to an interview process. My understanding from Irish Water is that on foot of the pre-screening meetings and telephone conversations, the top candidates were invited to interview. This clearly suggests that a candidates' performance at the meetings or on the telephone was determinative of whether they would proceed to the next stage or otherwise. It would appear that the pre-screening stage was in some way competitive, and involved elimination of candidates. I therefore find that this stage could objectively be regarded as involving interview like processes. Thus, I find that the records held by Irish Water containing salary expectations expressed by candidates at pre-screening stage are within the scope of this review as the pre-screening stage amounts to an interview stage. I would also draw attention to section 11(9) of the FOI Act which provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the Act to be held by the body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if requested to do so by the body for the purposes of the Act, give the record to the body for retention by it for such period as is reasonable in the particular circumstances.

As Irish Water did not deem records from the pre-screening stage of its recruitment process as being within the scope of this review, it has not fully considered whether these records fall for release under the FOI Act. Accordingly, I find that Irish Water has not justified its decision to refuse the request on the ground that no relevant records exist. The effect of my findings is that Irish Water's decision to refuse the request must be annulled and it must make a fresh, first instance decision in respect of the applicant's original request, in accordance with the provisions of the 2014 Act.

During the course of this review Irish Water identified two electronic records containing data on salary expectations compared to salary offers, and provided copies of these records to this Office. Having examined these records, it would appear to me to that they may contain information coming within the scope of the applicant's request. Therefore, they should be considered by Irish Water when it makes its fresh, first instance decision.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby annul the decision of Irish Water to refuse the request under sections 15(1)(a) of the Act, and I direct it to undertake a fresh decision making process in respect of the original request.

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

Stephen Rafferty
Senior Investigator