Whether the Council was justified in refusing access, under section 37(1) of the FOI Act, to the marks awarded in each category to the successful candidate for the position of Gaeltacht Tourism Officer, on the ground that release of the information would involve the disclosure of personal information relating to the individual concerned

15 April 2020

Background

In a request dated 23 August 2019, the applicant sought details of the points awarded in each category to the successful candidate for the position of Gaeltacht Tourism Officer. In a decision dated 5 September 2019, the Council refused the request under Section 37(1) of the FOI Act 2014 on the ground that release of the information sought would disclose personal information pertaining to the successful candidate who took up the position. The applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 10 February 2020, the applicant sought a review by this Office of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the Council and the applicant as set out above, as well as to the communications between this Office and both the applicant and the Council on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified, under Section 37(1) of the Act, in refusing access to the marks awarded in each category to the successful candidate for the position of Gaeltacht Tourism Officer.

Preliminary Matters

Notwithstanding the request for records under this review, the applicant appears to have been unhappy with the process adopted by the Council in its selection process for the role of Gaeltacht Tourism Officer.  It is important to note that I am required under section 13(4) of the Act to disregard any reasons the applicant has for seeking access to the record in question. Furthermore, this Office has no role in examining the administrative actions of the Council in the performance of its functions or in examining the appropriateness of its recruitment and selection processes.

Analysis and Findings

Section 37(1) of the FOI Act provides that, subject to other provisions of the section, an FOI body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 

Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a) of the Act, i.e. personnel records of staff of FOI bodies.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph (I) refers).

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally. I am satisfied that the nature of the information at issue in this case is such that it is not captured by the exclusion to the definition of personal information.

I note that the individual to whom the information relates in this case has been appointed to the post. I am also satisfied, therefore, that the disclosure of the marks awarded to the successful candidate for the post would involve the disclosure of personal information relating to an identifiable individual. I find, therefore, that section 37(1) applies to the information at issue.

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) applies to these records. That is to say, (a) the information contained in them does not relate to the applicant; (b) the third parties 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.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still 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.

In considering where the balance of 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.

The FOI Act acknowledges that there is a public interest in promoting the transparency and accountability of public bodies in the manner in which they perform their functions (section 11(3) refers). However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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 its submission to this Office the Council stated that candidates were awarded marks by the assessment panel based on their performance at interview and on the substance and nature of the answers provided.  It stated that each candidate who presented for interview received a copy of their interview marks from the Council’s Human Resources Department. 

The applicant was provided with a summary of the Council’s submission to this Office and invited to make her own submissions in relation to the Council’s position. In her submission, the applicant said that she considers the public interest outweighs the right to privacy in this case. The applicant said the position of Donegal Tourism Officer is completely funded by public monies and is a key element of tourism development in Donegal, a sector that affects a large number of people and their families. The applicant argued that, if the best-qualified person is not selected due to the evaluation system being flawed or an unfair process followed, then a wide range of people (and their families) dependent upon their livelihoods from tourism revenues could suffer economic harm.  The applicant contended that, as the Tourism Officer position is funded completely by public monies, it should belong to a class of information that should be made available to the general public. As a citizen and member of the public, the applicant said she feels affected by the choice of candidate for the key post of Tourism Officer as that person’s level of efficiency, experience and professionalism relates to her own business in the sector, which relies on tourists coming to Donegal. 

I accept that selection processes for public sector posts should be as transparent as possible to allow, in so far as possible, for informed conclusions to be drawn as to the fairness of those processes. However, this does not mean that there should be no protection of privacy rights of successful candidates. It seems to me that a certain level of transparency can be achieved in a number of ways while protecting privacy rights of candidates, including though the publication of selection procedures, the provision of feedback to candidates, ensuing the availability of appropriate appeal and review mechanisms etc.

The question I must consider in this case is whether the public interest in enhancing the accountability and transparency of the Council’s selection process outweighs, on balance, the public interest in protecting the privacy rights of the successful candidate. In my view, it does not. I do not accept that the release of the information sought would serve to further enhance the transparency and accountability of the Council to any significant extent. On the other hand, release of the information would involve a breach of the successful candidate’s privacy rights. I am also cognisant of the fact that the release of this information on foot of a request made under the FOI Act is, in effect regarded, as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put. I find, therefore, that section 37(5)(a) does not apply.

On the matter of whether the grant of the request would benefit the person to whom the information relates as provided for in section 37(5)(b), the applicant presented arguments as to why she considers it to be in her interests to be aware of information relating to the successful candidate. It seems to me that the applicant has misunderstood the provision. In essence, for section 37(5)(b) to apply, I would have to be satisfied that the disclosure of the information sought, potentially to the world at large, would benefit the successful candidate. I am satisfied that it would not and that section 37(5)(b) does not apply.

In conclusion, therefore, I find that the Council was justified, under section 37(1) of the Act, in refusing access to the marks awarded to the successful candidate for the position of Gaeltacht Tourism Officer.

Decision

Having carried out a review under Section 22(2) of the FOI Act, I hereby affirm the decision of the Council to refuse to access, under section 37(1), to the marks awarded under each category to the successful candidate for the position of Gaeltacht Tourism Officer.

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