Case number: 020362
Case 020362: Amendment to marks awarded and opinions expressed by an interview board
Ms X was interviewed for a position with the Central Statistics Office. She subsequently applied under section 17 to have an amendment made to the marks awarded to her at the interview and the comments made by the interview board on her performance.
The Commissioner found that Ms X had not shown that, on the balance of probabilities, the marks awarded or comments made by the interview board were incomplete, incorrect or misleading.
In explaining his decision the Commissioner commented that generally speaking, he would be slow to disturb the marks awarded and comments made by an interview board in the absence of strong evidence that such decisions or comments are somehow flawed. The Commissioner was satisfied that an explanation given by the CSO to Ms X addressed an apparent contradiction between some of the marks awarded and comments made. He also accepted that there is a degree of judgement and subjectivity in the decisions of any interview board.
Our Reference: 020362
Dear Ms X
I refer to your application under the Freedom of Information Act ("the FOI Act") for a review of the decision of the Central Statistics Office ("the CSO") to refuse to amend records relating to your interview for [DELETED].
I have now completed my review of the CSO's decision. In carrying out that review I have had regard to your original requests to the CSO, your application to my Office of 4 July 2002 and to your submission of 24 July 2002. I have also had regard to the submissions of the CSO dated 23 July and 26 September 2002, and I have examined the two records which you have requested to be amended.
In this review you have requested that the CSO amend the marks awarded to you at the interview for [DELETED] and that the CSO's 'statement of reasons' provided under section 18 of the FOI Act, dated 25 May 2001, be amended in the manner set out in your original application to the CSO dated 25 April 2002. This review is concerned solely with the question of whether the decision of the CSO to refuse to amend the two records concerned is justified.
Section 17 of the FOI Act allows for the amendment of records held by a public body in cases where personal information in a record is incomplete, inaccurate or misleading. The Act is silent on the question of where the onus of proof lies in such cases. I take the view that, in the absence of any express statement in the Act, the onus of proof lies with the applicant as the party asserting that the information is incorrect, incomplete or misleading. The Act is also silent as to the standard of proof which should apply. I take the view that the standard of proof required is that of the "balance of probabilities". It follows that an applicant, seeking to exercise the right of amendment under section 17, must show me that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading.
The assessment of whether certain factual information is incorrect is often a straightforward matter. However, in this case the information at issue contains an element of judgement, in the nature of an opinion formed and marks awarded following your interview. In case 98158 - Mrs. ABZ and the Office of the Revenue Commissioners I held that:
"It is not my intention to present an exhaustive list of the circumstances in which an opinion might be found to be "incomplete, incorrect or misleading". However, I would expect the applicant to satisfy me that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some particular factor which renders the opinion dangerous to rely upon."
In this case it would appear that the opinions formed by the interview board are based on its interview with you and your application for the position of [DELETED]. Your submissions have provided me with a clear indication as to the strength of your feelings in relation to the marks awarded to you and the comments made in the CSO's statement of reasons. I have considered whether, based on the evidence provided by you, the opinions expressed by the interview board and the marks awarded are somehow flawed.
I agree that on first examination the marks awarded for 'Personal Qualities' may seem inconsistent with the comment of "Pleasant Lady" contained in the 'Notes' section of the interview sheet. However, I am satisfied that the explanation given in the CSO's 'statement of reasons' under that heading explains this apparent contradiction. In any event it seems to me that the acknowledgement of you as a "Pleasant Lady" is only one aspect of the 'Personal Qualities' that the interview board were asked to assess. In other words, the deeming of a candidate as being pleasant does not necessarily imply that the candidate is a 'good communicator', 'inspires confidence', 'is self reliant' or 'would exercise good judgement', which are the other criteria on which the interview board was required to award marks.
In your correspondence you claim that the interview board did not examine your map reading ability or the other abilities listed under the 'Aptitudes' section of the interview sheet. You also query why one of the interviewers wrote the comment, "Has skills" under the heading of "Aptitudes" while awarding 50% of the marks available. I have raised this issue with the CSO. In response the CSO has stated that:
"Interview boards were asked to assess the range of aptitudes which candidates possess to a greater or lesser extent, including demonstration of reasoning ability and ability to follow instructions. It would not necessarily follow that a candidate should receive high or full marks in this category. From our experience, some candidates who would otherwise be considered as capable of the position of [DELETED] may not be sufficiently competent in regard to their reasoning capabilities or their ability to follow instructions. Interview boards were therefore asked to make a determination of a candidate's range of aptitudes through questioning and careful probing of answers given. The onus was on the interviewee to expand on his/her experience to enable the board to make this assessment."
From this statement and the statement of reasons provided to you, it seems to me that what the CSO is saying is that because of your level of education it deemed you, and presumably a number of other candidates, to have the necessary skills but that in your case, you did not advance any extra information that enabled the interview board to evaluate those skills in depth.
I also queried the board's observation under the 'Aptitudes' heading that there were "some deficiencies in the order and sequence of employment details" in your response to question 7 of the application form. Question 7 is concerned with 'employment/experience' which would appear to be more relevant to the assessment of a candidate's 'Education/Experience' and not his/her 'Aptitudes'. The CSO clarified that this factor was taken into account in assessing your ability to complete forms which is one of the criteria under the 'Aptitudes' heading.
I have no reason to believe that the interview board's decision to award marks and the comments in its statement of reasons were based on factors other than its interview with you and your application form. I accept the CSO's argument that there is a degree of judgement and subjectivity in the decisions of any interview board. As I have stated above I believe that the onus is on the applicant to show that the basis of the opinion expressed is somehow flawed in some way. Generally speaking I would be slow to disturb the marks awarded and comments made by interview boards in the absence of strong evidence that such decisions or comments are somehow flawed for the reasons I have set out earlier. Having examined the records concerned, the submissions of the CSO and the evidence provided by you, I find you have not shown that the marks awarded or opinions expressed in the statement of reasons under the heading of 'Aptitudes' are incomplete, incorrect or misleading.
In relation to the board's assessment of your 'Education/Experience' you argue that your education, previous experience as[DELETED] and the examples given by you at the interview justified higher marks. The interview board has stated that you did not elaborate on your previous experience at the interview and marked you accordingly. As mentioned earlier, in a situation where one opinion contradicts another I would need strong evidence to find that the opposing opinion is flawed. Having regard to your submission I am not satisfied that the evidence you provided shows that, on the balance of probabilities, the interview board's opinion is incomplete, incorrect or misleading in this case.
The remainder of your arguments represent your opinion that you deserved higher marks or more favourable comments from the CSO. While you may not agree with the opinions expressed in the interview sheet and the CSO's statement of reasons, the evidence that you have presented to me in your correspondence is insufficient for me to conclude that the records should be amended under section 17 of the FOI Act. I should add that my decision should not be seen as an endorsement of the opinions expressed by the interview board or the marks awarded. My decision represents my finding that you have not shown, on the balance of probabilities, that the opinions expressed by the interview board and marks awarded are incomplete, incorrect or misleading.
You have expressed concern about the future use of the comments and marks awarded by the interview board. In this regard I note that the CSO has offered assurances that the contents of the two records will not be referred to in any future competition held by the CSO, that all records relating to your application for the post of [DELETED] will be placed in a sealed envelope and that access to that envelope will be strictly limited.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of the CSO.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.