Whether the Board was justified in its decision to refuse access, under section 15(1)(a) of the Act, to a record containing the applicant-�s interview result from an internal recruitment competition, on the ground that the record sought does not exist

23 November 2022

Background

This case has its background in an internal recruitment competition for a specified position within the Legal Aid Board (the Board). While the applicant was interviewed for the position on 8 July 2021, the Board subsequently informed her that following completion of the interview process, an issue arose which necessitated a review of the process and as a result, the panel recommendation was not accepted. It told the applicant that she would be invited to a new interview shortly.

On 12 January 2022, the applicant sought access to a copy of her interview results and feedback from the competition. On 16 February 2022, the Board part-granted the request. It provided copies of the applicant-�s interview feedback, but refused access to her interview result under section 15(1)(a) of the Act on the ground that the record sought was deemed not to exist as the recommendation of the interview panel was not accepted.

On 11 March 2022, the applicant sought an internal review of the Board-�s decision. Among other things, she argued that the handwriting in some of the interview feedback provided to her was illegible and she again requested her interview result. She also sought details of the issue that arose during the interview process. On 28 March 2022, the Board affirmed its refusal of the applicant-�s request for her interview result under section 15(1)(a). On the matter of the legibility of the records released, it offered to provide typed versions of same. It also provided details of the issue that arose during the interview process. On 5 September 2022, the applicant sought a review by this Office of the Board-�s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the Board-�s submissions wherein it outlined its reasons for concluding that the interview result sought does not exist. The applicant was invited to make a further submission on the matter, which she duly did.

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 correspondence between the Board and the applicant as outlined above and to correspondence between this Office and both the Board and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In her correspondence with this Office, the applicant said she did not take up the offer of having her interview notes typed as parts of the notes were, in her view, illegible and she did not consider it possible for anyone to be in a position to provide typed versions. In the circumstances, I have not given any further consideration to that matter.

Accordingly, this review is concerned solely with whether the Board was justified in its decision to refuse access, under section 15(1)(a) of the Act, to a record containing the applicant-�s interview result on the ground that the record sought does not exist.

Preliminary Matters                                                                        

Before I address the substantive issues, I would like to make the following preliminary comment.

While I can appreciate how important it is to the applicant to obtain access to the records at issue, 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 (not relevant in this case).

I should also explain that while the applicant expressed concerns about the manner in which the competition itself was run, it is not within the remit of this Office to examine the administrative actions of the Board in how it managed the competition. As I have outlined above, our remit is confined to a consideration of whether the Board was justified in refusing the applicant-�s 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. Our 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. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the Board provided this Office with details of its reasons for concluding that no record of the applicant-�s result from her interview of 8 July 2021 exists. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In summary, the Board explained that following the completion of the interviews for the competition, the Chair of the Interview Panel forwarded a panel recommendation to the Board. It said an issue arose during the first interview selection process which caused the Board to consult with the Commission for Public Service Appointments (the CPSA). It said the CPSA advised that the prudent approach would be not to accept the recommendation of the interview panel and to reschedule a new round of interviews, which it did.

The Board added that the competition as a whole concluded thereafter and the result of that interview was communicated to all applicants in the competition on 16 September 2022, including the applicant.

The Board said it is of the view that the record sought, i.e. the applicant-�s result from her interview on 8 July 2021, does not exist and never existed, as the recommendation of the Interview Panel was not accepted. It said that only upon acceptance of the recommendation does that recommendation become the result of the recruitment competition.

As I have outlined above, the Investigating Officer notified the applicant of the details of the Board-�s submissions and invited her to submit any further comments she might have on the matter. In her response, the applicant argued that once there was a recommendation in a competition a result had to exist. She said that feedback on her interview from the 8 July 2021 existed so her interview result had to be available.

It seems to me that the key issue arising in this case is the nature of the record the applicant sought in her request. It is clear that a record was created by the Interview Panel following the conclusion of the first round of interviews, namely its recommendation to the Board. As I have outlined above, the Board-�s position is that the recommendation is not the result of the competition and that a recommendation becomes the result of the recruitment competition only when the recommendation has been accepted.

It is important to note that under section 12(1) of the Act, an FOI request must contain sufficient particulars to enable the record sought to be identified by the taking of reasonable steps. The applicant specifically asked for a copy of her interview results in connection with her interview on 8 July 2021. I note that at the time she made her request, she had already been informed by the Board that it was not accepting the recommendation given by the Interview Panel and that she would be invited to attend a new interview. Therefore, while she described the record sought as her interview results, it seems to me that the request could reasonably have been interpreted as a request for a copy of the outcome of her interview as documented by the Interview Panel.

I fully accept the Board-�s argument that in the particular circumstances of this case, the recommendation of the Interview Panel cannot be described as a result. Nevertheless, it is important to note that the FOI Act requires an FOI body to give reasonable assistance to a person who is seeking a record under the Act in relation to the making of the FOI request for access to the record. Accordingly, if the Board was in any doubt as to the nature of the record sought, it seems to me that it should reasonably have sought to clarify the matter with the applicant in the first instance. Indeed, I note that in its submission to this Office, the Board acknowledged that -�an issue of releasing the recommendation of the interview panel as opposed to the result, had that recommendation been accepted, may arise-�. Moreover, it appears the Board may have been aware of the possibility that the applicant may have been seeking access to the recommendation of the Interview Panel, hence its decision to refuse the request on the ground that -�as the recommendation of the Interview panel was not accepted, the record you seek isdeemednot to exist-� (my emphasis).

In the circumstances, I find, on balance, that the Board was not justified in refusing the request under section 15(1)(a) on the ground that the record sought does not exist. However, I do not consider it appropriate to simply direct the release of the Interview Panel recommendation. I note the Board-�s concerns that it may not be in a candidate-�s interest to release the recommendation of the interview panel owing to the issues that caused the Board to decide not to accept the recommendation. While I make no comment in relation to those concerns, I consider that the most appropriate course of action to take is to annul the decision of the Board and to direct it to conduct a fresh decision making process on the request, once it has clarified with the applicant that she is, indeed, seeking access to a copy of the recommendation in question. If the applicant is unhappy with the Board-�s fresh decision, it will be open to her to apply for an internal review of that decision and, subsequently, to apply for a review by this Office of the Board-�s decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Board to refuse, under section 15(1)(a) of the FOI Act, the applicant-�s request for a copy of her interview results following an interview she attended on 8 July 2021 for an internal recruitment competition. I direct the Board to conduct a fresh decision making process on the request.

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