Whether CORU was justified in refusing access to further records relating to the breakdown of scores awarded to the applicant for each of the competencies assessed at interview for a specific 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

10 November 2020

Background

This review has its background in a previous review before this Office (OIC-58788-B1M8F4). In that earlier case, CORU had provided the applicant with records relating to his unsuccessful application for a position within the body, including a letter from its CEO, which contained a breakdown of the score he was awarded in respect of one of the five competencies examined during his interview.

A key issue arising in the review was whether CORU was justified in refusing access to further records relating to the breakdown of scores awarded to the applicant for each of the remaining competencies on the grounds that no such further records exist or can be found.

CORU could not identify the source from which it obtained the breakdown of the competency score set out in the CEO’s letter. It said it could not locate any relevant records, that the staff member who could likely assist them with the matter was on leave, and that it was not in a positon to reach out her at the time. In the absence of an adequate explanation concerning the source of the score breakdown and due to its failure to make further enquiries with the relevant staff member, I found that CORU had not taken all reasonable steps to ascertain the whereabouts of relevant records. I annulled CORU’s decision and directed it to make a new decision on the matter.

On 17 June 2020, CORU made a decision and released a further copy of the CEO’s letter of 31 July 2019 that it had released previously. It explained that the members of the CORU team involved in the recruitment process for the interviews that took place in April 2019 and in the review process subsequent to April 2019 were contacted in respect of the FOI request.

On 22 June 2020, the applicant sought an internal review of that decision. On 13 July 2020, CORU affirmed its decision on the basis that all relevant records that had been found had been released previously and that no other relevant records could be found. The applicant sought a new review by this Office for a review of CORU’s decision.

During the course of this review, Ms Greenalgh of this Office provided the applicant with details of the searches undertaken by CORU in an effort to locate relevant records and informed him of her view that CORU had taken all reasonable steps to ascertain the whereabouts of relevant records. In response, the applicant indicated that he does not accept CORU’s position.

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.

Preliminary Matters

Having regard to the applicant’s submissions to this Office, I wish make the following preliminary comment. The remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigate complaints against a public body, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As noted above, this review is confined to considering CORU’s decision about access to interview scores sought by the applicant in his FOI request.

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.

In essence, the position of CORU is that no further records relating to the breakdown of scores sought awarded to the applicant for each of the competencies assessed at interview exist or can be found. In its submissions to this Office, CORU said it revisited the matter with the CORU team and sent an email to the relevant members of this team (including the staff member who was on leave) seeking information they may have in relation to the contents of any records relating to the breakdown or subset of scores awarded to the applicant for each competency addressed at interview and also asking them to conduct further searches for relevant records. In response, all of the team members stated that they conducted fresh searches and could find no relevant information.

As noted above, in the earlier review I had regard to CORU’s apparent failure to make enquiries with a staff member who was on leave. During the course of this review, CORU clarified that the individual in question was involved with the initial search and retrieval process when the first FOI request was originally sought. The staff member also confirmed that no further records could be found as part of this fresh review.

The key issue remaining to be considered in this review is how CORU was in a position to include in its letter of 31 July 2019 a breakdown of the score the applicant achieved in one particular competency if it holds no records that contain such information.

When specifically asked who drafted the letter, CORU initially said that members of staff that could have drafted or inputted into the letter were asked to confirm if they drafted the letter. It said no one from that group recollects drafting the letter given the passage of time and in the current circumstances, it is not possible to say who drafted the letter. However, it subsequently said that the identity of the individual who drafted the letter is known and they have participated in the process since the outset.

Essentially, CORU’s position is that the staff member who drafted the letter cannot recall the source of the information concerning the breakdown of the score the applicant achieved in one of the competencies. In its submissions to this Office, it said it can only assume that the scores could have been taken from interview notes which no longer exist. It said the letter of 31 July 2019 is the only record of this sub-set scoring that currently exists and there is no source record that can be found. CORU said it has never sought to argue that no source material existed as that matter has not been determined. Rather its position is that no source documentation could be found as part of the FOI process.

The letter of 31 July 2019 contains details of the total marks that were potentially available under a specified competency. It then sets out the total marks available under five separate sub-headings and the actual marks awarded to the applicant under each subheading and the total score awarded for that particular competency. As such, it is highly likely, in my view, that source documentation containing such detailed information did, at some stage, exist. It is also reasonable to assume, therefore, that such source documentation is likely to have contained details of the breakdown of scores awarded to the applicant in each of the other four competencies assessed at interview.

However, the question I must consider is whether CORU has taken all reasonable steps to ascertain the whereabouts of such documentation. It is important to note that it is open to this Office to conclude that a public body has conducted all reasonable searches even where records were known to have existed but cannot be found. The Act does not require a public body to continue searching indefinitely for records that cannot be found, although I would expect the body to notify the requester immediately if records that could not previously be found were subsequently located.

Whilst I accept that it is wholly unsatisfactory from the applicant’s point of view and that he is understandably disappointed with CORU’s responses, I am satisfied, having reviewed the steps and searches undertaken by CORU, that it has taken all reasonable steps to ascertain the whereabouts of the records sought, notwithstanding its inability to explain the source of the scores contained in the letter of 31 July 2019.

I find that CORU was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of CORU to refuse access, under section 15(1)(a), to any 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.

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