Whether UCC has provided an adequate statement of reasons to the applicant, under section 10 of the FOI Act, relating to his unsuccessful application for appointment to the post of Clinical Professor in UCC

19 February 2018

Background

On 31 January 2017 the applicant made a request for records and reasons for decisions in connection with his unsuccessful application for appointment to the position of Clinical Professor in UCC. Specifically he sought details of:

• the merit points awarded for the various criteria outlined in the application form
• feedback on the how many points his application received under each criteria, and his total application score
• the minimum requirements to merit approval across the application criteria sub-sections, and the minimum total score required to merit approval for the position, and
• records of the discussions regarding his application, and reasons why his application was unsuccessful.

In its decision of 2 March 2017, UCC provided a copy of the post particulars containing the evaluation criteria that were circulated with the application form and it provided further information concerning the selection process. In response to the applicant's request for reasons why his application was unsuccessful, UCC stated that while the Selection Committee was very impressed with his application, he did not demonstrate as strongly in teaching relative to other candidates.
Following a request for internal review, UCC refused to release further records on the ground that no further relevant records exist. It affirmed the original decision in relation to the statement of reasons given. On 29 August 2017 the applicant sought a review by this Office of UCC's decision.

I have decided to bring this review to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and UCC as set out above and to the communications between this Office and both the applicant and UCC on the matter. 

Scope of Review

During the course of this review, Mr Flood of this Office contacted the applicant and suggested that the review would focus solely on the request for a statement of reasons as it appeared that he was not challenging the existence of further records relevant to his request. In response, the applicant stated that he was satisfied with the suggested approach. Accordingly, this review is concerned solely with the question of whether UCC complied with the requirements of section 10 with regard to the statement of reasons it provided to the applicant.

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a
statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.

Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates if the consequence or effect of the act may be to confer on, or withhold from, the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

"Benefit" is defined at section 10(13) as including:

(a) any advantage to the person,
(b) in respect of an act of an FOI body done at the request of the person, any consequence or effect thereof relating the person, and
(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

This Office has previously set out its approach to, and interpretation of, the equivalent provision of the FOI Acts 1997 & 2003 (section 18). Insofar as it applies to this review, I am satisfied that the approach previously adopted remains relevant to my consideration of section 10 of the Act of 2014, including, in particular, the following principles:

• Taking section 10 as a whole, the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 10 does not apply to that act.
• There are many acts/decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that an FOI body should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action taken by it. There will be many instances where a number of secondary actions/decisions will be taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, section 10 does not entitle a person affected by a substantive decision to a statement of reasons in respect of each and every action taken in arriving at that decision.
• The requirement on the FOI body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process. What is required is that the head provide a statement of reasons which adequately explains why the body acted as it did.
• The appropriateness, or otherwise, of administrative actions taken by FOI bodies is not relevant for the purposes of section 10. Indeed, the remit of this Office does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought under section 10. Thus, even if the act or decision in question was somehow
• flawed, that would not be something that this Office could require the FOI body to rectify. 

I am satisfied that the substantive "act" in this case is UCC's decision not to appoint the applicant to the relevant position. Furthermore, I accept the applicant's contention that in declining to appoint him, UCC withheld from him certain prospective reputational and financial benefits. In my view, therefore, the applicant has a material interest in the outcome of that decision.

The applicant's original request suggests that he believes that some form of scoring exercise was undertaken in respect of each of the criteria identified in the application form for the position. Indeed, in the absence of relevant records, he suggested that there may have been some unwritten scoring mechanism, as UCC had indicated that he did not demonstrate as strongly in teaching relative to other candidates. He argued that this response would suggest that it was concluded that others scored better.

According to UCC, the applications of all candidates were assessed against the criteria for appointment as set out in the relevant post particulars. It stated that candidates were not interviewed for the posts and that there was no scoring or ranking of candidates. It stated that the decision on which candidates to appoint was made by the Selection Committee through consensus agreement. It added that the Selection Committee considered the applicant's application, which detailed his relevant experience and achievements, and found that he did not demonstrate as strongly in teaching relative to other candidates. It further stated that no other records exist that would provide any further detail as to its reasoning on the applicant's application.

I can appreciate the applicant's concern that the reasons he has been given do not allow him to draw more detailed conclusions as to the basis on which the Selection Committee considered that he did not demonstrate as strongly in teaching relative to other candidates.

However, I have no reason to doubt UCC's assertion that there was no scoring or ranking of candidates by criteria. It is important to restate that the appropriateness, or otherwise, of the evaluation and selection methodology employed by the Selection Committee is not a matter for this Office to consider. For the purposes of section 10, it is sufficient that the body explain why it acted as it did.

In the circumstances, I am satisfied that UCC has provided the applicant with the reasons why his application for appointment was unsuccessful. I find, therefore, that UCC has complied with the requirements of section 10 in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of UCC on the ground that UCC has provided the applicant with an adequate statement of the reasons why his application for appointment to the position of Clinical Professor was unsuccessful.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator