Case Number: 160436

Whether the refusal by TCD of access to records relating to job applications and recruitment is justified under sections 15(1)(a), 15(1)(c) and 37 of the FOI Act

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

Background

The applicant acted through her solicitor in her dealings with TCD and this Office in this matter.

On 21 June 2016 the applicant made an FOI request to TCD for the following: (1) all records containing personal information on her whensoever created including all notes made in reference to all job applications made to a certain department from 2011 - 2016 inclusive; and (2) all policies, memos, emails, guidelines, letters from 2010 and 2016 referring to eleven listed items of information (including certain policies, procedures, matters relating to recruitment and selection processes and application forms, scores etc. for a specific competition).

For completeness, I note that the applicant also made a request for a statement of reasons, under section 10 of the FOI Act; this has been dealt with separately by this Office.

TCD issued its decision by letter dated 20 July 2016. In relation to Part (1) of the request, it granted access to "all the records containing personal information on (the applicant) including all notes made in reference to job applications made to (a certain department) by (the applicant) from 2011 to 2016". In relation to Part (2) of the request, it provided the applicant with certain information, including web-links to policies identified in the eleven listed items of information. It refused access to "all policies, memos etc referring to" such eleven listed items, under section 15(1)(c) of the FOI Act and refused access to certain information relating to other job candidates, under section 37(1) of the FOI Act.

On 30 August 2016, the applicant applied for an internal review. By letter dated 20 September 2016, TCD issued its internal review decision and affirmed its original decision. On 5 October 2016 the applicant applied to this Office for a review of TCD's decision.

In conducting this review I have had regard to TCD's decision on the matter; TCD's communications with the applicant and with this Office; the applicant's communications with TCD and with this Office; the content of the withheld records, provided to this Office by TCD for the purposes of this review and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on TCD to satisfy me that its decision is justified.

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Finally, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.

Scope of the Review

The question for this review is whether TCD is justified in refusing access to the information concerned under sections 15(1)(a), 15(1)(c) and 37 of the FOI Act.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

In Part (1) of her FOI request, the applicant seeks all records containing personal information on her whensoever created, including all notes made in reference to all job applications made to a certain department from 2011 - 2016 inclusive. In her internal review request, the applicant states that as her employer for 13 years, TCD clearly holds personal information which it has not released. In its internal review decision, TCD states that it has provided all information which is currently available. It adds that under data protection legislation, personal information must be retained no longer than is necessary and therefore the personal information held only relates to the applicant's most recent interactions with the university.

In circumstances where the applicant claims that further records exist, I consider it appropriate to consider section 15(1)(a) of the FOI Act. Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

During this review, the applicant referred this Office to certain personal information which she says that TCD must hold, including records relating to job applications and references. The Investigator made specific enquiries with TCD about this information and the searches which TCD had conducted to locate the applicant's personal information.

In response, TCD states that Human Resources and the relevant departments and faculties were contacted and that searches were carried out by the staff relations manager, the school administrator and the faculty administrator. It says that both electronic and manual searches were conducted. TCD then provided the applicant with the records retrieved and a print-out of her entire HR file which is held electronically on the HR system. According to TCD, candidate information is retained for not less than 2 years after a particular post is filled and personal data is retained no longer than is necessary under data protection legislation.

With specific regard to job applications, I note that TCD says in its original decision letter that certain job applications fall outside the time-frame of the applicant's request (2011 - 2016). However, I believe that a fairer interpretation of the scope of the applicant's FOI request is that in its entirety, it covers all records which contain personal information whensoever created; this could encompass records relating to job applications which predate 2011, if such exist. Indeed the applicant's application for internal review says that she seeks all records containing personal information about her.

With regard to references, TCD says that these are only sought when a candidate is offered a position and referees are not contacted in unsuccessful applications. I note that record 12, which was released to the applicant, contains references in support of the applicant's application.

In support of her position, the applicant sent this Office a copy of a departmental email which refers to her and which was not released as part of the review. The Investigator raised this point with TCD. In response, TCD states that all personal information about the applicant which that department supplied were forwarded to the applicant. It says that the FOI Liaison Officer had to take it on good faith that if such records existed they would have been supplied to deal with the request. TCD reiterates that its staff are subject to data protection training, which requires that personal information should be held no longer than necessary.

TCD's position is that there are no further records relevant to the applicant's FOI request. My role is to assess the reasonableness of the steps taken by TCD to locate the records.

Having regard to TCD's submissions, I am generally satisfied that it carried out reasonable searches for the records. However, I do not believe that it was correct in limiting the scope of its search for records relating to job applications, having regard to the way in which the applicant worded both her FOI request and her internal review request. I therefore find that TCD is not justified in refusing access to further records under section 15(1)(a) on the basis that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts, to the extent that such further records may relate to job applications which predate 2011. I direct TCD to consider this part of the applicant's FOI request and to take a new, first instance, decision on it, in accordance with the provisions of the FOI Act.

I accept of course that it may then be open to TCD to refuse access to any such records under section 15(1)(a), on the basis that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts, or indeed under section 15(1)(c), which I deal with below.

Section 15(1)(c) - Refusal on administrative grounds

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request if granting the request would cause a substantial and unreasonable interference or disruption of the work of the FOI body. TCD relies on this provision in relation to Part (2) of the applicant's FOI request.

Section 15(4) of the FOI Act provides that FOI bodies are not entitled to rely on section 15(1)(c) unless they have assisted or offered to assist the requester to amend the request so that it no longer falls within section 15(1)(c). Therefore, this is the first issue which should be considered in any case in which an FOI body is relying on section 15(1)(c).

In the request for internal review, the applicant's solicitors say that "no effort to communicate with this office has been made in an effort to refine the request by time or category".

During this review, this Office asked TCD to point to when and how it had offered the applicant assistance under section 15(4). In response, TCD stated "rather than refuse this section of the request in its entirety, the University chose to be helpful and supply the relevant policies themselves in an effort to supply the requester with information we considered to be of more assistance to her. The University runs on average 350 recruitment processes annually, these posts stretch across 3 faculties, 24 schools, 23 Services areas and numerous research centres and groups. A search of all records referring to the above list could potentially result in a search of every area of the College that has run a recruitment process, all HR records, all Committee minutes and Committee papers, all governance documents over a five year period...this would result in 3,500 hours of time, essentially almost 100 weeks of public sector time".

Section 15(1)(c) is an explicit acknowledgment of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on often limited resources. However, section 15(4) envisages that the FOI body and the requester should, between them, attempt to amend the request.

I believe that the way in which the applicant worded Part (2) of her FOI request gave rise to a voluminous FOI request. However, section 15(4) requires the FOI body to assist, or offer to assist, the applicant to amend the request for re-submission (my emphasis). While I accept that TCD sought to help by providing the applicant with certain policies, I have no evidence before me that TCD assisted or offered to assist the applicant to amend her request for submission. I am therefore not satisfied that TCD has complied with section 15(4) of the FOI Act.

I recognise of course that TCD may be in a position, following meaningful engagement with the applicant under section 15(4), to justify the section 15(1)(c) exemption having regard to all the circumstances. I fully accept that TCD is entitled to have regard to the impact that processing an FOI request such as this would have on its work.

Section 37(1) - Personal Information

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(iii) information relating to the employment or employment history of the individual".

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office.

TCD relies on section 37 in relation to redacted information in records 3-5, 7-11, 13-17 and 21-24. These records disclose certain information relating to individuals other than the applicant: for example, other job candidates' names; whether they were short-listed or not; their short-listing scores; interview scores and notes about them; and whether they were nominated for appointment. With the exception of two items of information, which I deal with below, I consider that this is personal information within the meaning of the FOI Act. This is on the basis that it is information which would be known only to the individual or his family or friends and/or that it is held by TCD on the understanding that it would be treated as confidential and/or that it relates to the individual's employment history.

I should mention that in submissions to this Office, the applicant says that the personal information concerned is not sensitive information, but rather deals with the application of selection criteria to a particular candidate. Information does not need to be sensitive in order to qualify as personal information under the FOI Act. For the reasons given above, I am satisfied that this information falls within the definition of personal information under the FOI Act.

I therefore find that TCD is justified in withholding access to this information under section 37(1) of the FOI Act. This is subject to the provisions of sections 37(2) and 37(5), which I examine below.

However, I consider that two pieces of information do not qualify as personal information under the FOI Act. These are the names of the candidates, as they appear after the words "nominated candidate" and before the word "acceptance", as redacted from records 11 and 24 (only this and not any other redacted information in the records). This is on the basis that these are names of individuals who hold or held a position as a member of the staff of TCD. Accordingly, they fall within the exception in Paragraph I of section 2 of the FOI Act. I find that TCD is not justified in withholding access to this information under section 37(1) of the FOI Act.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the records which I have found to be exempt under sections 37(1). That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that 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 request would benefit the person to whom the information relates.

TCD does not address section 37(5) of the FOI Act in either its original or internal review decision. The applicant notes TCD's failure in this regard and I agree that TCD was required to address section 37(5). I would remind FOI bodies that section 13(2) of the FOI Act requires them to give reasons for refusing access to records, including matters relating to the public interest.

The applicant submits that the information requested is necessary "to elect a comparator" in order to support her case in legal proceedings and that there is a public interest where releasing the information allows the inspection of a public body's recruitment procedures. She intends to introduce the information requested into legal proceedings to discharge the burden of proof and says that it is within the spirit and purpose of the FOI Act that private individuals are granted access to records to level the information advantage inherent to public bodies. She submits that as the rules of discovery do not apply to the forum in which her legal proceedings will be heard, the FOI Act is an extremely significant mechanism in allowing complainants to effectively litigate against discriminatory treatment by public bodies.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 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 un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(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.

In relation to the issue of the public interest, it is important to take note of the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

As noted above, I am required to disregard the applicant's reasons for her FOI request. Therefore I can only take into account the purpose for which she seeks this information to the extent that she identifies a public interest. However, I believe that the interest which the applicant sets out is more properly viewed as a private rather than a public interest. I consider that I am supported in these opinions by the High Court decision of FP v The Information Commissioner [2016] IEHC 771. There, the Court found that the fact that the applicant sought access to information to establish whether he had a cause of action was to be disregarded by the Commissioner, except insofar as it might be relevant to consideration of some overall public interest. It went on to hold that the fact that access to records might assist the applicant in determining whether he had a cause of action or in advancing such a claim did not qualify as matters of public interest.

I must also bear in mind that release under the FOI Act is tantamount to release to the world at large. Accordingly, this is not a question of whether to disclose certain information for the purpose of a particular legal claim; it is a question of whether to disclose certain information to the world at large.

That said, I recognise that there is a public interest in transparency and accountability around public bodies' activities and decision-making. This is recognised in section 11(3) of the FOI Act, which I believe to be a "true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law". I consider that there is a public interest in transparency and accountability around TCD's recruitment processes. In the circumstances, I believe that this has been met through the release of records which disclose the following kind of information in respect of the competitions: the short-listing criteria and scoring; the number of candidates who were and were not short-listed; the selection criteria and scoring; the number of candidates who were nominated for appointment and interview notes.

Having regard to the above, on balance, I do not believe that the public interest that the FOI request should be granted outweighs the public interest that the right to privacy of the other job candidates should be upheld. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the records would benefit the people to whom the information relates (the other job candidates) and I find that section 37(5)(b) does not apply in the circumstances.

I find that TCD is justified in withholding access to the information which I have found to be personal information, under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary TCD's decision as follows.

- I find that TCD is not justified in refusing access to further records under section 15(1)(a) of the FOI Act on the basis that they do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts, to the extent that such further records may relate to job applications which predate 2011. I direct TCD to consider this part of the applicant's FOI request and to take a new, first instance, decision on it in accordance with the provisions of the FOI Act.

- I annul TCD's decision on the records "referring to" the records in Part (2) of the applicant's FOI request on the basis that TCD has not properly complied with section 15(4) of the FOI Act. I direct TCD to undertake a fresh consideration of this part of the applicant's FOI request and, if the applicant requires it following assistance or the offer of assistance under section 15(4), to take a new, first instance, decision on the records sought in the request as amended for re-submission.

- I affirm TCD's decision on the information which I have found to be personal information, under section 37(1) of the FOI Act. I annul its decision on the two pieces of information which I have found not to qualify as personal information and direct the release of that information.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator