Case number: 150084
On 7 July 2014, the applicant made a request under the FOI Act to the Revenue. His request was entitled "Request for Information Under Section 16 [sic] of the Freedom of Information Act, 1997" and was presented in the format of a large number of questions about different aspects of a recent internal promotion competition held by the Revenue. On 6 August 2014, the Revenue notified the applicant that it was releasing some records, and provided him with some of the answers to the questions posed by him. On 2 September 2014, the applicant sought an internal review of the Revenue's decision, stating that it had refused "to provide several key pieces of information relating to the test process and the test results." On 23 September 2014, the Revenue upheld its original decision. On 23 March 2015, the applicant applied to this Office for a review of the decision.
Following communications between Simon Noone, Investigator with this Office, and the parties, the Revenue released further information/records to the applicant, in an attempt to resolve the matter. However, the applicant subsequently advised Mr Noone that he was unhappy with the contents of the additional material furnished to him, and that he did not consider the matter to have been settled. Consequently, I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the correspondence between the parties and with this Office, and to the provisions of the FOI Act.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
It appears to me that there has been some degree of confusion on the part of both the applicant and the Revenue regarding the type of application being made under the FOI Act. The applicant framed his request as one "for information under section 16" of the Act. The Revenue, however, treated his application as being one for access to records, and indeed advised him that the FOI Act "relates to 'a right of access to records held' by public bodies, rather than requests for information in the broader sense."
Section 7 of the FOI Act provides a right to request access to records. Normally, one would expect that where the answer to a question posed by an applicant lies in a record held, the public body would treat such record as being within the scope of a section 7 request. Additionally, however, section 18 of the Act provides a right to a statement of reasons regarding acts of public bodies affecting the requester. In my opinion, the applicant's request to the Revenue encompassed both these provisions of the Act. Some of the questions related to reasons for "acts", whereas other questions sought records purportedly held by the Revenue.
In my opinion, some of the confusion arose due to the manner in which the request was framed. The applicant stated that he was seeking information under section 16 of the Act. I am satisfied that this was a mistake on his part, as that section concerns the publication of information by public bodies regarding the rules and procedures followed by them when considering requests under the Act. I am satisfied that the applicant intended to make his request pursuant to section 18. However, the Revenue seems to have treated his application as one brought under section 7. It did provide answers to some of the questions asked, but stated that it was doing so "outside of the FoI process".
The Freedom of Information Act 1997 (Section 18) Regulations 1998 (SI 519/1998) state that "An application under section 18 shall be expressed to be made under that section" (reg. 3). As has been seen, the applicant stated that his request was made under section 16, and therefore it would appear to fall foul of this regulation. However, reg. 5 provides inter alia that
"Where a public body receives... an application which does not purport to be an application under section 18 but which requests information access to which can be obtained only by way of an application under section 18, the head shall assist, or offer to assist, the individual in the preparation of an application under that section."
In my opinion, some of the questions asked by the applicant of the Revenue concerned information which could only have been obtained by way of section 18. It does not appear to me that the Revenue assisted the applicant in the manner required by reg. 5, and therefore I should consider the applicant's request, insofar as it concerns section 18, to be valid. This is accordance with a previous decision of the Commissioner, Case No. 020281 (Mr. X and the Department of Education and Science, on www.oic.ie).
Although the Revenue refused access/information in respect of a large number of the questions posed by the applicant, in his submissions to this Office, and during a further telephone conversation with Mr Noone, the applicant confirmed that he wished to limit his appeal to two main points. These are set out in the original request as follows (I will continue to use the applicant's numbering for convenience):
"1. Candidate success rate
1.4 (f) How was the group of candidates added to the reserve panel selected?
3. Questions undertaken in Test
3.1 Wish to personally confirm the scores allocated to me.
3.2 Wish to see the questions that I undertook.
3.3 Wish to see the answers that I provided.
3.4 Wish that Revenue state how many of my questions were answered correctly.
3.5 Wish to know if all questions carry same score value.
3.6 If a candidate skipped a number of questions and successfully completed questions at the end of the test would they get more marks for each correct answer?"
It seems to me that the question 1.4(f) issue is a section 18 request for a statement of reasons, and the question 3 matters are a mix of section 7 and section 18 requests. The scope of this review, therefore, is concerned with whether the Revenue fulfilled its obligations under section 18, and whether it was justified in refusing access to records for those aspects of the request that should be considered as having been made under section 7.
In his submissions to this Office, the applicant stated that "As there is no recourse to an independent third party in case of query or otherwise relating to this competition the only means available to enquire into matters concerning this competition is by request made under Freedom of Information." It should be noted that this Office is not a general appellate body in respect of promotion competitions or other functions carried out by or on behalf of the Revenue. In determining this matter, I am limited to considerations solely based on the relevant provisions of the FOI Acts. Furthermore, in relation to section 18 requests, this Office has previously noted that "an adequate statement of reasons under section 18 may not always address questions which a requester may like it to address"; see Case No. 020485 (X and University College Cork).
I will deal with the two principal queries raised by the applicant (question 1.4(f) and question 3) separately, as they involve different considerations.
In its initial response to the question "How was the group of candidates added to the reserve panel selected?", the Revenue replied "In order of merit". Following communications between this Office and the parties, further information was provided to the applicant. In my opinion, the Revenue has now furnished the applicant with a substantial amount of information about how the order of merit was determined. However, he remains dissatisfied with the reply given. In his submissions to this Office, he stated that "My request for information has not been satisfied and the information has been withheld."
As stated above, I am satisfied that this aspect of the request falls to be considered under section 18 of the FOI Act. Section 18 of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by the act and has a material interest in a matter affected by the act or to which it relates. Section 18(5) provides that a person has a material interest in a matter affected by an act of public body or to which it relates:-
"[I]f the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."
The terms of section 18(5) exclude acts which have general applicability. Rather, the act must affect a person particularly, albeit not necessarily exclusively. Where the act does not relate individually to the person concerned, I take the view that the decision maker must have regard to all of the relevant circumstances in determining whether the applicant is affected in at least some particular manner as compared to others. If others are similarly affected, this does not necessarily remove the act from the ambit of section 18. However, the greater the number of persons similarly affected, the more general and remote the interests of the persons affected are likely to be.
In his submissions, the applicant stated that "A total of [more than 1000] candidates participated in an online assessment...Some candidates that were not placed on [the] initial panel and who therefore were not called to the initial interview round scored higher marks in both tests than a number who were called on the initial panel. This is the reason for my request for information at 1.4f."
Therefore, it seems to me that the applicant is seeking information regarding the scoring system employed by the Revenue in its online assessments. However, I am satisfied that this scoring system did not uniquely affect the applicant; it applied equally to all [more than 1000] candidates who participated in the online competition. Consequently, I find that the applicant does not have a material interest in the matter, as required by section 18, as it cannot be said that the scoring system employed has had a particular impact on him, compared with the other candidates. This follows a previous decision of this Office concerning similar circumstances, Case No. 98101 (Ms ABC and the Office of the Local Appointments Commissioners) Therefore, I find that the applicant is not entitled to the information sought pursuant to section 18 (notwithstanding that a substantial amount of detail has already been provided to him by the Revenue).
I consider that this aspect of the request consists of a mix of applications under sections 7 and 18. The Revenue originally refused to provide any of the information/records requested, on the basis of the exemptions provided for by sections 21(1)(a), 27(1)(a) and 27(1)(b) of the FOI Act. Subsequently, they furnished the applicant with answers to some of the questions posed, and supplied certain records. However, in his additional submissions to this Office, the applicant stated that "The information provided is of little benefit as it does not contain all the information requested. Unless one has access to the questions undertaken and the correct answer to match against the answer provided by me in the test the data provided in the reply...is meaningless in the abstract sense and completely inadequate to meet my request for information."
Having regard to these submissions, and to the additional information provided by the Revenue to the applicant, I am of the opinion that this information answered the questions/requests set out in 3.1, 3.3, 3.4, 3.5 and 3.6, and consequently I am satisfied that the sole remaining issue to be determined is that set out at point 3.2, i.e. "Wish to see the questions that I undertook." The Revenue has relied on sections 21 and 27 in refusing to release the questions answered by the applicant in the assessments.
I will address the section 21 exemption first. This states that
"(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to... (a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof...
(2) Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."
In its submission to this Office, the Revenue stated that "The test designed by [a third party company], including the bank of questions and possible answers, could be used for other competitions that might be run by Revenue and/or other Departments or Offices within the Civil Service and consequently awareness of the risk associated with conferring an advantage on the requester, or indeed on anyone that the requester might have made the records available to, over other candidates for any future competitions that may take place. Release of the requested records would in effect prejudice the effectiveness of the test designed by [the third party company]."
Additionally, the Revenue referred to the previous Commissioner's decision in Case No. 98030 (AAH and the Office of the Civil Service and Local Appointments Commissioners). This concerned a request for access to the test booklets and answer sheet completed by that requester during a competition for promotion within the civil service. The Commissioner stated that "In the case of the answer sheet, copyright prevents the taking of a copy but does not prevent the granting of an opportunity to view the document. The claim by the CSLAC that that this would provide Mr AAH with an unfair competitive advantage is disputed by Mr AAH on the basis of the volume of questions asked. I am satisfied however that the potential for the drawing of a reasonable conclusion in relation to the correct answer to any individual question would of itself provide Mr AAH with such unfair competitive advantage. It could be argued that this could be overcome by allowing all candidates access to their answer sheets. This would not however defeat the potential for collusion by the pooling of knowledge gained from several such inspections. Any pooling of knowledge would confer unfair advantage on those prepared to participate in such an exercise." The Commissioner found that the public interest factors against release of the records outweighed those in favour, and refused the request.
In his submission to this Office, the applicant has sought to distinguish this case from AAH. He stated that, in AAH, "[T]he CSLAC had acquired rights to only one set of questions and had intended to use them in future competitions...In the case of...the tests carried out in the Revenue [internal promotion] competition it is a claim on [the third party company's] advertising literature that there is a pool of questions from which each test is drawn, that the test taken by each candidate is unique and that there is no advantage conferred to a candidate by undertaking several tests as there is little likelihood of ever getting the same 30 questions in two or more sittings."
It may well be the case that it is unlikely that a candidate would be presented with the same suite of questions during a subsequent assessment. However, I am satisfied that, if the applicant's request is granted and he is provided with a copy of the questions asked, the possibility that he might, in any future assessment, be asked even a small number of the same questions as in the previous assessment, could reasonably be expected to prejudice the effectiveness of the test, by giving him an unfair advantage compared to other candidates who had not had prior sight of any of the possible questions. This is particularly the case in assessments for public sector promotional opportunities where there are a large number of applicants, and where, as a result, even very small variations in scores achieved can determine whether or not an applicant is selected to advance to the next stage. Furthermore, FOI release is regarded, in effect, as release to the world at large, and therefore, if the release of the records was to be directed, it would not be possible to ensure that the assessment questions would be viewed solely by the applicant only, thereby, in my opinion, increasing the risk of prejudice to future promotion competitions.
Section 21(2) requires me to consider whether the public interest would, on balance, be better served by granting rather than refusing the request. I consider that the public interest in openness and transparency in the Revenue recruitment process favours release of the records. On the other hand, I believe that the public interest in ensuring the effectiveness of the recruitment process, and the public interest in preserving the integrity of future competitions, and confidence in that integrity, favour refusing the request. On balance, I am satisfied that the public interest considerations against release of the records are more compelling, and therefore I find that the Revenue was entitled to refuse to release the records on this basis.
As I have found that the exemption created by section 21 applies, I do not need to go on to consider the section 27 exemption.
Having carried out a review under section 34(2) of the Act, I hereby vary the decision of the Revenue in respect of question 1.4f of the request to reflect my finding that the applicant has not demonstrated a material interest as required under the provisions of section 18 of the FOI Act and that he is not, therefore, entitled to a statement of reasons for the act identified. I affirm the decision of the Revenue to refuse the applicant's request for access to records in respect of question 3.2 of the request.
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 the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.