Case number: 98095
Case 98095. Assessment form - reasons sought for individual scores awarded to the requester - pre-commencement record - whether section 18 applied.
The requester had applied for promotion and, as a result, his superior officer completed an assessment form which rated the applicant under a number of headings. The form was completed before 21 April 1998. The requester sought a statement of reasons for the decisions to award him the individual scores. The Department refused to provide a statement of reasons on the grounds that section 18 did not apply to acts which took place before 21 April 1998.
The Commissioner found that there was a general rule of statutory interpretation that a statute is presumed not to be retrospective except where the statutory provision is clear that it is intended to be retrospective; or where the change introduced is procedural only. Whereas section 6(5) made specific provision for the right of access to certain records created prior to the commencement of the Act, there was no similar provision making section 18 retrospective. He found that the obligations imposed by section 18 were not purely procedural in nature. The Commissioner decided that section 18 did not apply in this case. He accepted that the position might be different where the decision of the Department had continuing effect after 21 April 1998.
For the guidance of the parties, the Commissioner suggested that section 18 required public bodies to be able to explain to an individual who has been assessed the criteria or benchmarks used and the facts about the individual or his/her work performance which were taken into account in completing the assessment.
Mr AAV, the requester in this case, is an assistant principal officer with the Department of Social, Community and Family Affairs. In February 1998 he attended an interview for promotion to the grade of principal officer. Prior to attending the interview an assessment form in relation to his performance was completed by his superior officer. The form was intended to assess the applicant under the eight headings of knowledge, judgement, creativity, analysis of issues, initiative, reliability and output, assertiveness and planning. There were five possible ratings in respect of each heading ranging from 'poor' up to 'exceptional'. The assessor indicated his choice of rating by ticking the appropriate box on the form. Mr AAV was not satisfied with the contents of the assessment form and was disappointed not to be promoted following the interview.
By letter dated 30 June 1998 Mr AAV furnished a copy of the assessment form to a Regional Director, seeking reasons for the positioning of the ticks on the form. The Regional Director responded to this by letter. The matter was not dealt with under the Freedom of Information Act, 1997 (FOI Act) at that stage. By letter dated 30 July 1998, Mr AAV sought the reasons for the decisions under the FOI Act. The Department refused this request in its letter of 26 August 1998 stating that the request fell under section 18 of the Act and the section did not apply to acts which took place before 21 April 1998. Mr AAV appealed this decision stating that the Department had based its decision on section 18 only and did not attempt to find another way to facilitate his request. On internal review, the Department upheld the original decision. The Department stated that with regard to section 6 there was no record of any further more detailed information having been provided for the purpose of the assessment for promotion.
Mr AAV's application for a review of the Department's decision to this Office was received on 18 September 1998.
Both the Department and Mr AAV were given the opportunity of making a submission to this Office. The Department made a submission to this Office. Mr AAV confirmed that he would not be making a written submission and that he would be relying on his application for review and previous correspondence with the Department.
The Department argues that the wording of the request indicates that it falls within section 18 and that it is its understanding that section 18 does not have retrospective effect and does not create any new obligations relating to matters past (i.e. prior to 21 April 1998). The assessment form was completed and the interview took place prior to 21 April 1998. The Department argues that FOI places no obligation on it to explain a record. Further, it states that the assessment form will have no continuing effect as it will not be used in future competitions. The Department also outlines the efforts it made to deal with the matter outside of FOI.
Mr AAV states that as the record existed on his personnel file and had not been superseded by another record, an explanation of the record was required. He argued that the Department had not fully grasped the spirit of the Act. He argued that the record was both personal to him and a personnel record and it required explanation. He did not accept that the record would not be used in other competitions in the future (as had been stated by the Department). He stated that section 6 should have been considered by the Department in its handling of the matter.
The Department argues that the request in this case falls to be decided under section 18 of the Act. Section 18 provides as follows:
(1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person
(a) of the reasons for the act, and (b) of any findings on any material issues of fact made for the purposes of the act.....
(5) For the purposes of this section a person has a material interest in a matter affected by an act of a public body or to which such an act relates if 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.
(6) In this section
''act", in relation to a public body, includes a decision (other than a decision under this Act) of the body; ''benefit", in relation to a person, includes (a) any advantage to the person, (b) in respect of an act of a public body done at the request of the person, any consequence or effect thereof relating to the person, and (c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.
The Department relied on the fact that Mr AAV's request fell within section 18 of the Act and that section did not operate retrospectively and therefore did not apply to this assessment form in so far as it referred to a matter which took place prior to 21 April 1998, the date of commencement of the Act.
The Department also claimed that by its very nature completion of ratings on an assessment form requires judgements that are subjective and are not amenable to detailed written explanation. However, it pointed out that an opportunity had been afforded to Mr AAV to express his concerns in the matter.
As a general rule of statutory interpretation, a statute is presumed not to be retrospective except where the statutory provision is clear that it is intended to be retrospective or where the change introduced is procedural only. In the case of the Freedom of Information Act, 1997 there is nothing in the Act which indicates an intention to make section 18 retrospective in effect. This is in contrast to the right of access to records. In section 6(5) the Act specifically provides for the right of access to certain records which were created prior to the commencement of the Act. Section 18 imposes an obligation on public bodies to provide reasons for their acts and to provide details of any findings on any material issues of fact made for the purposes of the act. In this respect it requires a certain amount of work on the part of the public body in order to respond to a request made pursuant to section 18. It is not, to my mind, purely procedural in nature. In the case of pre-commencement acts, it may often be that the public body will not have recorded any reasons for its act, and with the passage of time and changes in personnel, it may be impractical to give reasons for an act.
I find that the acts relevant to this review took place before 21 April 1998. The interview was also concluded before that date. I accept the Department's assurance that the record reflecting the acts of the Department will not have any continuing effect on the requester.
I am of the view that section 18 cannot apply retrospectively in this case. It might be different were the acts in question to have continuing effect after 21 April 1998. However, as I have indicated, the Department assured me that this is not the case. In this case the Department states that Mr AAV has been provided with all records that relate to him in relation to this matter and Mr AAV in his discussions with this Office accepted that. I find that on the facts of this case, section 18 cannot apply.
Although it is not strictly necessary for me to do so, for the guidance of the parties, I would like to deal with the Department's concerns about the difficulty of giving a written explanation of what are subjective ratings. I accept that there are practical limits to the degree of explanation which can be given as to why a particular subjective judgement was made. However, in this instance the task does not appear to be an impossible one. For example, it is reasonable to expect that in making the kind of assessment which has given rise to the present review, an assessor will have regard to certain criteria or benchmarks which will enable him/her to judge the most appropriate rating for each party being assessed. In deciding how a particular candidate measures up to those criteria and benchmarks, s/he will presumably have regard to certain facts about the individual or his/her work performance. I would suggest that a public body should be in a position to explain to such an individual what the criteria and benchmarks are and what facts were taken into account. In my view this is what section 18 requires. I should emphasise that these remarks are addressed only to the particular question of whether it is reasonable to expect a public body to give an explanation, under section 18, of an assessment of the kind used in Mr AAV's case. I am conscious that the content of such assessment forms and the marking schemes adopted can vary widely, so I make no comment at this stage on how section 18 should apply generally.
Having carried out a full review of the original decision and decision on internal review of the Department in this case, I affirm the decision of the Department not to provide reasons for the acts or decisions as requested in this particular case.