Whether the PAS was justified in refusing access to certain records concerning the applicant's participation in a promotion competition under sections 15(1)(a) and 30(1)(a) of the FOI Act
14 August 2018
Background
On 27 October 2018 the applicant submitted a three part request to the PAS for records relating to her candidature for the 2017 Principal Officer competition. At part 1, she sought all records relating to the strategic management exercise she completed, including the marking sheets and interview comments completed by the interview board for the exercise (the Board) and a copy of the model template answer against which candidates were scored.
On 24 November 2017 The PAS part granted the request. It released a copy of a completed final score and summary comment sheet for the exercise but refused access to the interview comments of the Board and a scoring key, citing sections 30(1)(a) and 30(1)(b) of the FOI Act. It also refused access, under section 15(1)(a) of the Act, to any additional records, on the ground that no such records exist.
Following the applicant's request for an internal review, the PAS varied its decision on 16 January 2018. It released a copy of the handwritten notes taken by the Board but continued to refuse access to the scoring key, citing sections 30(1) and 36(1) of the Act. The applicant sought a review by this Office of that decision on 1 February 2018.
I have now concluded my review in this case. In conducting the review, I have had regard to correspondence between the applicant and the PAS as outlined above and to communications between this Office and both the applicant and the PAS on the matter.
Scope of Review
During the course of the review, the applicant agreed to narrow the scope of the review to the first part of her request only, as described above. Nevertheless, it emerged that there was some confusion between the parties as to the scope of that part of the request. Having regard to the wording of the applicant's request and her request for internal review, the PAS understood the request for internal review to be confined to the documents completed by the Board, namely the interview notes and the scoring key. Following correspondence with the applicant, Mr Flood of this Office informed the PAS of his view that the applicant's work in the exercise should have been considered for release. The PAS identified a written report and a presentation that had been prepared by the applicant. It claimed exemption for both records under sections 30(1) and 36(1). It refused access to any other records coming within the scope of part 1 of the applicant's request under section 15(1)(a) on the ground that no further relevant records exist.
Accordingly, this review is concerned with the question of whether the PAS was justified in refusing access to the scoring key and the applicant's report and presentation under sections 30(1) and 36(1) and whether it was justified in refusing access to any additional records coming within part 1 of her request under section 15(1)(a).
Preliminary Matters
In her submissions to this Office, the applicant argued that the selection process was biased and that she requires access to the records at issue to ascertain whether or not she was awarded the appropriate scores. This Office has no role in examining the fairness, or otherwise, of the selection process. Furthermore, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records.
Analysis and Findings
Section 30(1)(a)
The PAS refused access to the scoring key, report and presentation under section 30(1)(a). This section provides for the refusal of a request if the FOI body considers that access to the records sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
In other words, the provision envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc. (i.e. the ability of the test, etc., to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur.
The scoring key contains details of the core issues which should be identified and the approaches which should be taken by candidates in the strategic management exercise. The PAS stated that because of the heavy investment in identifying and developing exercises for campaigns such as the one at issue, it would propose to use this exercise, or versions of it, again in future similar campaigns. It argued that release of the scoring key would compromise the exercise as it would allow candidates to have access to the core issues and approaches by which the selection board judges how the candidates meet the requirements of the role. It argued that its release could reasonably be expected to prejudice the effectiveness of any future use of the specific strategic management exercise or similar such exercises as part of the assessment and selection process.
The PAS further argued that possession of information contained in the scoring key would place the holder at a distinct advantage over other applicants. It argued that disclosure of the fact that any potential applicant has had access to material which would give some indication of the possible correct responses to any exercise, or part of any exercise, would have the effect of undermining the integrity of the selection process. It also argued that even if it were to develop a different version of the exercise in the future, any candidate in possession of a previous similar scoring key would still have an advantage over other candidates. In essence, the PAS argued that the release of the scoring key would prejudice both the effectiveness of the selection process and the effectiveness of the exercise used for conducting the selection process.
The PAS made similar arguments in relation to the applicant's report and presentation. It argued that the report and presentation, by their nature, contain elements of the exercise itself.
The applicant made comprehensive submissions to this Office on the matter. She does not accept the arguments made by the PAS concerning impairment to the future use of the strategic management exercise by the release of the scoring key. Among other things, she argued that the required skills and competencies are already known to candidates as they are set out clearly in the information booklets supplied to candidates in advance and that there is nothing to stop successful candidates from passing on the points they raised and the approaches they adopted in the exercise. She also argued that the scoring key is not complete information but rather a subset of what is required for a candidate to be successful and that it is simply a factual record of the particular issues raised and approaches adopted.
Having examined the scoring key at issue, I am satisfied that any individual with access to the record would indeed have a distinct advantage over other applicants and that access to the record generally would diminish the effectiveness of the exercise itself. The record does not simply identify the skills and competencies required for the post. Rather, it provides specific details of the core issues that the interview board expect the candidates to identify and explore and of the approach to be taken in their responses. The fact that the scoring key may contain only part of what is required for a candidate to be successful does not alter the fact that release would diminish the effectiveness of the exercise. Furthermore, while it is, of course, open to successful candidates to pass on details of how the approached the exercise, this is not the same as confirming the precise details of the issues and approach sought by the interview board. I also accept the Assertion by the PAS that it would propose to use this exercise, or versions of it, again in future similar campaigns in light of the heavy investment in identifying and developing exercises for campaigns such as the one at issue Accordingly, I find that section 30(1)(a) applies to the scoring key.
On the matter of access to the report and presentation, as I have noted, the PAS argued that the report and presentation contain elements of the exercise itself. As the records in question were prepared in response to the requirements of the exercise, I accept the assertion of the PAS on this point. Indeed, I note that the applicant did not dispute this. Rather, she argued that release of the scripts upon which it is alleged that she failed comprehensively would not prejudice the effectiveness of the exercise. She argued that the information is of no value and would not provide advantage or disadvantage to any future candidates. She further argued that much of the information contained in her scripts is already in the public domain, by virtue of the fact that the PAS has used the same exercise in previous competitions, the exercise was almost identical to the information pack issued to all candidates, the information was already released to her in the notes released, and candidates who have similar information can pass the information to other candidates.
I accept that many, if not all, candidates in competitions such as the one at issue will be broadly familiar with the nature of the exercise to be undertaken, for the reasons outlined by the applicant. However, a distinction must be drawn between candidates having a broad familiarity with the exercise and candidates having access to documents that contain precise elements of the exercise itself. In my view, the release of the records at issue would allow for access to specific elements of the exercise to the extent that the effectiveness of the exercise could reasonably be expected to be prejudiced. I find, therefore, that section 30(1)(a) applies.
The Public Interest
Section 30(2) provides that section 30(1) shall not apply where the FOI body considers that the public interest would, on balance, be better served by granting rather than by refusing to grant the request. In considering where the public interest lies, I have had regard to the 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. Although these comments were made in relation to another provision of the FOI Act, they are relevant to consideration of public interest tests generally.
In essence, the applicant argued that there is a strong public interest in ensuring that individuals receive fair treatment in accordance with the law in their dealings with public bodies and in enhancing transparency and accountability in relation to the manner in which public bodies carry out their functions. She provided detailed argument as to why she believes the selection process was biased and why she believes her constitutional rights to have been affected.
As I have outlined above, this Office has no role in examining the fairness, or otherwise, of the selection process. As Mr Flood of this Office previously explained to the applicant, the Commissioner has addressed this specific point in previous decisions. In Cases 090261/090262/090263, he commented as follows:
"I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
I fully agree that there is a public interest in enhancing the transparency and accountability of the PAS in the manner in which it conducts recruitment and selection competitions such as the one at issue in this case. On the other hand, there is also a public interest in ensuring that the effectiveness of the selection process undertaken by the PAS and the methods used in those selection processes are not prejudiced. It is also important to note that there are existing mechanisms available to candidates to challenge the fairness of such selection processes. As the applicant is aware, the Commission for Public Service Appointments, as the independent regulator for public service recruitment, is responsible for examining complaints alleging breaches of its published Codes of Practice.
The Code of Practice for Appointment to Positions in the Civil Service and Public Service sets out the regulatory framework for such appointment processes and centres on recruitment principles of probity, merit, best practice, fairness and transparency. However, the level of transparency required or expected does not apply to the extent that the potential future use of the selection processes themselves may be undermined. In this case, it seems to me that the public interest in enhancing transparency and accountability of the PAS has been served to some extent by the availability of documentation concerning the selection process and by the release to the applicant of her final score and summary comments sheet and the Board's interview notes. Having regard to the fact that the PAS proposes to re-use the exercise, or versions of it, in future similar competitions in view of the investment in developing the exercise, I find that the public interest would, on balance, be better served by refusing access to the records at issue.
In summary, therefore, I find that the PAS was justified in refusing access to the scoring key and the applicant's report and presentation under section 30(1)(a) of the FOI Act. Having found section 30(1)(a) to apply, I do not consider it necessary to examine the other exemptions claimed.
Section 15(1)(a)
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. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In her submission of 12 July 2018, the applicant stated that she was not satisfied that all other notes relating to the exercise had been released to her. She argued that the notes released related to a 15 minute presentation aspect of the exercise only. She stated that she also completed a 15 minute question and answer session as part of the exercise. She argued that she comprehensively answered all questions with text book answers and that those responses are not recorded on the notes released.
The PAS stated that all documents relating to candidates' participation in the exercise are stored in one envelope per candidate. According to the PAS, the Senior Manager responsible for the relevant recruitment campaign has confirmed that the applicant's envelope would contain all relevant material one would expect to exist in respect of the request. Its position is that all relevant records have now been identified. No evidence has been presented to me that would lead me to doubt that position. In the circumstances, I find that the PAS was justified in refusing access to any additional records coming within the first part of the applicant's request under section 15(1)(a) on the ground that no further relevant records exist.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the PAS to refuse access to the scoring key, presentation and report in question under section 30(1)(a) and to any additional records under section 15(1)(a).
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
