Whether CORU was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the breakdown of scores awarded to the applicant for each of the competencies assessed at interview for a specified post within CORU on the grounds that no such further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken

17 April 2020

Background

The applicant applied for a specified post within CORU and was interviewed for the post. He was informed that he was unsuccessful in the interview and was provided with details of the score he was awarded for each of the five competencies examined during the interview and his overall score. He subsequently sought a review of the outcome of his interview. The reviewer upheld the decision of the interview panel.

On 20 August 2019, the applicant submitted a request for all information held relating to him. In a decision dated 25 September 2019, CORU part-granted the request. It refused access to a number of records, in whole or in part, under sections 36 and section 37 of the FOI Act.

On 10 October 2019, the applicant sought an internal review of CORU’s decision. He argued that numerous files had been omitted from his request. He identified a number of records he believed should have been released, including records relating to the breakdown of the scores he was awarded for each competency such as was recorded in a letter he received from CORU’s CEO dated 31 July 2019 in respect of one of the five competencies.

On 4 November 2019, CORU issued its internal review decision wherein it released three further records and stated that no other relevant records exist or could be found. On 13 November 2019, the applicant sought a review by this Office of CORU's decision. During the course of the review, he indicated that he was seeking records containing details of the further breakdown of the scores he was awarded for the remaining competencies such as was provided by the CEO in his letter of 31 July 2019 in respect of one competency.

I have now decided to bring this case to a close by way of a formal, binding decision.  In carrying out my review, I have had regard to the correspondence between the applicant and CORU and to communications between this Office and both the applicant and CORU on the matter.

Scope of the Review

This review is concerned with whether CORU was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the breakdown of scores awarded to the applicant for each of the competencies assessed at interview for a specified post within CORU on the grounds that no such further records exist or can be found.

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. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified.  This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

As I have outlined above, the applicant received a letter from CORU’s CEO dated 31 July 2019 which contained a breakdown of the score he was awarded in respect of one of the five competencies examined during his interview. He believes that further relevant records should exist containing a breakdown of the scores he was awarded in the other four competencies. 

During the course of the review, this Office sought clarification of the source of the breakdown of scores that were set out in the CEO’s letter of 31 July 2019. In response, CORU said that while the CEO signed the letter, it was drafted by another staff member and that it could provide no further information as to the source of the score breakdown marks. It said it could not locate any relevant records, that the staff member who could likely assist them with the matter is currently on leave, and that it was not in a positon to reach out her at this time.

In the absence of an adequate explanation as to how CORU was in a position to provide the applicant with details of the breakdown of the scores he was awarded in one of the competencies, I cannot ascertain whether further relevant records are likely to exist in this case, although the CEO’s letter would appear to suggest that there may well be further records.

As such, it seems to me that CORU should reasonably have been expected to make further enquiries with the very staff member who might be in a position to throw light on the matter, notwithstanding the fact that she was on leave when the searches were being carried out. Indeed, in my view, CORU’s failure to make those enquiries with the relevant staff member is sufficient for me to find that CORU has not taken all reasonable steps to ascertain the whereabouts of relevant records.

In the circumstances, I consider it appropriate to annul the decision of CORU to refuse the applicant’s request for access to records containing the breakdown of the scores he was awarded under each of the competencies assessed at interview under section 15(1)(a) of the FOI Act. The effect of this is that CORU must consider that part of the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with CORU’s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of CORU to refuse access, under section 15(1)(a), to records relating to the breakdown of scores awarded to the applicant for each of the competencies assessed at interview for a specified post within CORU on the grounds that no such further records exist or can be found.

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