Whether ComReg was justified in refusing access, under section 37(1) of the FOI Act, to certain information concerning other candidates who applied for a specific job within ComReg

13 November 2020

Background

The applicant applied for a particular job within ComReg and was unsuccessful.  He requested feedback on his application and was provided with, among other things, a partially redacted CV Screening Sheet. The screening sheet had been completed by ComReg in the course of shortlisting applicants who were to be invited for interview. It contains information relating to each applicant, under the headings “Name”, “Meets Essential Criteria?”, “Interview Yes/No”, and “Justification”. Information relating to other applicants was redacted from the copy of the record provided.

In an email request dated 3 July 2020, the applicant sought access to all pages of the screening form in question with only the names of the other applicants redacted. He sought a typed copy of the record. On 31 July 2020, ComReg part-granted the request. While it redacted the names of the other applicants as agreed, it also redacted a certain amount of other information relating to the other applicants under section 37(1) of the FOI Act. It also provided a typed version of the redacted record. On 4 August 2020, the applicant sought an internal review of that decision, following which ComReg affirmed its original decision. On 14 September 2020, the applicant sought a review by this Office of ComReg’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 ComReg and the applicant, and to the communications between this Office and both the applicant and ComReg on the matter. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether ComReg was justified, under section 37(1) of the Act, in redacting certain information from the CV screening sheet on the ground that the disclosure of the redacted information would involve the disclosure of personal information relating to individuals other than the applicant.

Preliminary Matters

In his correspondence with this Office, the applicant expressed concerns about the shortlisting process in question. It is important to note that it is not within the remit of this Office to investigate complaints about the administrative actions of FOI bodies or to examine the manner in which FOI bodies perform their functions generally.

The applicant also said his reason for seeking access to the information at issue is to ensure that all applicants were treated fairly. Section 13(4) of the 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 information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. I will address the public interest balancing test contained in section 37 later in this decision.

Analysis and Findings

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the applicant. 

For the purposes of the Act, personal information is defined 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 (i) information relating to the educational history of the individual, (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.

The information redacted from the record at issue comprises information relating to the educational qualifications and employment history of applicants, and scores recorded against certain applicants. I am satisfied that all of the information is of a type that would fall for qualification as personal information. The question I must consider, therefore, is whether the redacted information is information about identifiable individuals.

In its submissions to this Office, ComReg argued that the very nature of the information could identify the individuals concerned. It argued that the combinations of the qualifications, former employment/positions and the requirements for the role were, together, capable of leading to the identification of the individuals in question, even with the names of the individuals redacted. Having considered the information contained on the screening sheet, the small number of applicants and having regard to ComReg’s submission in the matter, I agree. I find, therefore, that section 37(1) applies to all of the redacted information at issue.

The effect of section 37(1) is that a record disclosing personal information of a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, in this case, section 37(2) or 37(5).

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 the record in this case.  Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (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. I am satisfied that subsection (b) does not apply in the circumstances of this case.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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] 1 IR 729, [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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

As I have outlined above, in his correspondence with this Office, the applicant said that his reason for seeking access to the information at issue is to ensure that all applicants were treated fairly. I accept that the disclosure of the employment history and qualifications of applicants for positions within FOI bodies would allow candidates to draw more informed conclusions as to the fairness of the selection processes followed. However, this does not mean that there should be no protection of privacy rights of other 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. 

It seems to me by providing the applicant with certain documentation relating to his application, ComReg has attempted to strike that balance in this case. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific redacted information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that ComReg was justified, under section 37(1) of the Act, in redacting certain information from the CV screening sheet on the ground that the disclosure of the redacted information would involve the disclosure of personal information relating to individuals other than the applicant.

Decision

Having carried out a review under Section 22(2) of the FOI Act, I hereby affirm the decision of ComReg to refuse access to the information it redacted from the CV Screening sheet under section 37(1) of the Act.

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