Case number: 98187
Case 98187. Records of an interview board - details of candidate's performance sought by third party - application of section 28 - consideration of the public interest test in section 28(5) - reasons for the decision under section 18.
Ms ABH had been an unsuccessful candidate in a competition run by the Local Appointments Commissioners (LAC). She sought access to the notes of the interview board regarding her interview. She also sought reasons for the decision to award another candidate a higher place on the order of merit and asked for details of the marks of the other candidate. Having regard to an earlier decision of the Commissioner, the LAC agreed to make the notes of the interview board available to Ms ABH and gave her access to the criteria and marking schemes used, her order of merit position and her actual marks. It refused to disclose details about other candidates on the grounds that such information was personal information about them and that disclosure was prohibited by section 28(1).
The Commissioner found that section 18 of the Act cannot apply retrospectively and, therefore, Ms ABH was not entitled to a statement of reasons under section 18. The Commissioner considered that section 28 recognises that the right of access granted by the Act must be balanced in some cases against the right to privacy of other individuals and that section 28(5) requires the identification of a positive public interest which can outweigh these privacy rights. He found that in this case there was no public interest in granting access to the records which would outweigh the right to privacy of the other candidates.
On 8 September 1998 Ms ABH applied under the Freedom of Information Act (FOI), 1997 to the Office of the Local Appointments Commissioners (LAC) for access to information relating to her interview performance in competitions for senior professional posts (post X and post Y) in a Health Board. The interviews were held on various dates between in April and May 1998. The LAC provided Ms ABH with the criteria and the marking schemes used in both competitions. She was also advised of her place in the order of merit in each competition.
She was refused access to further information under section 21(1)(b) of the Act. The LAC argued that disclosure of the information could reasonably be expected to have a significant adverse effect on the performance by the Commissioners of their functions in relation to the management of their recruitment operations as disclosure could reasonably be expected to deter persons from serving on boards established by the Commissioners.
Ms ABH sought an internal review of this decision on 2 November 1998. She asked for the formulae used in assessing the candidates under the various headings considered by the interview board and also for her marks to be placed in context with the marks received by the other candidates. She also argued that the release of this information would not impinge on the Commissioners' ability to discharge their recruitment responsibilities.
In relation to Competition Y, the candidates were assessed under five headings - Qualifications (for which there was an identifiable marking scheme), Knowledge of Value, Application of Knowledge (to experience), Interpersonal and Oral Communication Skills and Personal Qualities.
In relation to Competition X, the candidates were assessed under three headings - Qualifications (for which there was an identifiable marking scheme), Knowledge and Experience and Personality and General Suitability.
Both posts also provided for an optional Irish language test. In the decision on internal review the LAC clarified the information already released as this had given rise to some misunderstanding. Ms ABH had been provided with the maximum marks and with the qualifying marks available under each of the criteria in both competitions. The internal reviewer decided to release Ms ABH's actual marks received in each competition. She also received details of the marking scheme used to allocate marks to candidates under the heading of qualifications. In relation to the other categories under which candidates were assessed she was provided with the criteria used by the board. She was advised that there were no records of the formulae or measurement used by the board in assessing candidates against these criteria. In relation to the marks received by the other candidates, access to the information was refused on the grounds that it related to personal information about third parties.
Ms ABH subsequently applied to my Office for a review of this decision.
Ms ABH made an application to me for a review on the basis that she considered that the marks awarded were meaningless unless placed in the context of the marks received by the other candidates. She also sought the formula by which the board gave value to appropriate experience and an explanation as to how this assessment could place a particular candidate who, she contended, has less experience, higher in the order of merit in the case of post X. She also sought the formula by which she was assessed under the other headings and how she came to be awarded the marks she received under each heading. In seeking this information she argued that the marks awarded to the other candidates have a direct impact on her and her career and without them her own marks make no sense. She indicated that she needed to know the weighting given to "knowledge and experience" in terms of future professional development. She contended that, in terms of natural justice, she is entitled to know why a candidate who, she claimed, wasunqualified and with less experience was awarded higher marks than she herself was awarded.
My Office contacted Ms ABH in connection with her application in order to clarify certain aspects of her request. Ms ABH stated that "what I am aiming to understand is how it came about that in an interview with the LAC for the post X in a Health Board a candidate who was unqualified (i.e. without a post graduate qualification) and with much less experience than myself could have been placed in a higher order of merit than me.....I want from the LAC an explanation as to how the formulae used by the interview panel could have placed a candidate who was unqualified and with much less experience in a higher order of merit than myself".
Following an exchange of correspondence regarding the progress of the review, I outlined to Ms ABH on 26 February 1999 my preliminary view in the case. She was advised of the access rights to pre-commencement records provided for under the Act. She was also advised that she had a separate right to a written statement of the reasons for any act of a public body which affected her and in respect of which she had a material interest but that this right only applies in relation to an act of a public body which took place after 21 April 1998. I advised Ms ABH that in an attempt to ensure that her rights under the Act were maximised, her request in relation to the Competition X had been interpreted as both a request for records containing personal information and a request for a statement of reasons in relation to her performance in the competition.
I advised Ms ABH that my preliminary view was that as the competition for post X had taken place prior to 21 April 1998, she was not, in fact, entitled to a statement of reasons under the Freedom of Information Act, 1997 in relation to the decision not to award her the post. I expressed the view that she was entitled to the notes of the interview board in both competitions. I noted that she had been given details of the marks that she had been awarded in each competition and indicated as a preliminary view that she was not entitled to access to any record which might reveal the marks of any other candidate. I invited her to consider settling the case on the basis of the grant of access to the notes of the interview board and invited further submissions from her in relation to my preliminary findings on the case.
In the interim I received the relevant records from the LAC in relation to Ms ABH's request. The LAC also made a submission to me in relation to the review. The LAC contends that " Ms ABH is not entitled to information about the other candidate as it is personal information belonging to the other individual". It also argues against releasing the marks of the other candidates even with the names deleted on the grounds that "arising from the close nature of the profession, the placings of the individual candidates are reasonably well known within the field. As the marks involved could easily be associated with the individuals concerned, we remain strongly of the view that they should not be released". In support of this argument it points out that the majority of the successful candidates in the competition for post X were employed in the health boards.
In response to my letter outlining my preliminary view in the matter, Ms ABH made a further submission. She indicates that she considers that all my efforts "seem to be focused on keeping within the letter of the Act and in releasing the minimum information while totally ignoring the spirit of the Act which requires the release of relevant information to citizens where that information has a serious and substantial impact on their lives". She contends that if candidates were judged fairly at the interview then under all the criteria relating to qualifications and experience (judged objectively) she would have gained higher marks than the successful candidate. She states that she "needs to have that confirmed by you or the Local Appointments Commission. Incidentally, this might not require the release of the actual marks but a record of comparison with the successful candidate in all the criteria that were used in the competition".
In reviewing the decision of the LAC in this matter, and as advised to Ms ABH, I interpret the request insofar as it relates to the competition for post X as both a request for records containing personal information and a request for a statement of reasons in relation to her performance in the competition. I have already decided in the case no. 98095 - Mr AAV and the Department of Social, Community and Family Affairs, that section 18 of the Act, which provides the right to a statement of reasons in certain instances, does not operate retrospectively and that, as a consequence, a public body cannot normally be required to give reasons for an act which took place prior to the commencement of the FOI Act. As the competition for post X took place prior to 21 April, 1998, Ms ABH is not, in fact, entitled to a statement of reasons under the Freedom of Information Act, 1997 in relation to the decision not to award her the post.
I now proceed to consider Ms ABH's request for access to the records relating to the two competitions.
The records in question can be broadly described as follows:-
Ms ABH was refused access to the records relating to these competitions by the LAC under section 21(1)(b) of the Act as it was considered that disclosure of the information could reasonably be expected to have a significant adverse effect on the performance by the Commissioners of their functions in relation to the management of their recruitment operations as it could reasonably be expected to deter persons from serving on boards established by the Commissioners. In the case of Mr ABD and the Local Appointments Commissioners (Case no. 98082) the LAC argued against the release of an interview board's assessment at the shortlisting stage of a competition, using exactly the same argument as in Ms ABH's case. I found that it was not reasonable to expect that release of the record in that case would result in a significant adverse effect on any of the functions of the LAC relating to management. I brought my findings in that case to the attention of the LAC in relation to the notes of the interview board which relate to Ms ABH. The LAC has now agreed to make available to Ms ABH the interview board notes relating to her candidature for both competitions.
Accordingly, the only outstanding records to which Ms ABH has been refused access are those which also contain personal information relating to the other candidates. These are the listings of the candidates including details of their qualifications and experience, the order of merit listings and those records of the board which contain notes relating to the other candidates. In her letter of application for review, Ms ABH stated that "her request was for information about the marks awarded to myself and the other candidates and the criteria used to assess candidates for the post". I consider therefore that the records to which I should have regard in my review are those records which contain the marks awarded by the board to Ms ABH and the other candidates. These records are the same for both competitions, being the list of the marks awarded by the board to the candidates interviewed and the order of merit listing prepared by the board, indicating the names, the marks awarded under each heading, the preliminary order of merit and the final order of merit inclusive of the marks awarded for the optional Irish language test. The latter record in the case of post X also contains notations by the board relating to each candidate.
I am conscious of the fact that Ms ABH originally sought access to the marks of other candidates on the grounds that this would enable her to contextualise her own marks. In the light of this argument I considered the possibility that I might give the requester access to the marks of each candidate on the order of merit with the names deleted. This would enable the requester to see how she fared under the various headings as compared with other candidates. The LAC has argued strongly against this approach in the terms set out above. Having considered the matter and in the light of the evidence presented to me by the LAC, I have decided that there is a significant risk in this case that releasing the order of merit, even with the deletion of the names, will reveal the marks of some candidates. In any event Ms ABH has made it clear that her primary interest is in discovering the marks of a particular candidate.
In relation to Ms ABH's request for access to the marks of the other candidates and particularly that candidate who she considers is less qualified and less experienced, I indicated in my preliminary view that I considered that she was not entitled to access to these records as they relate to personal information about other parties.
In addressing my preliminary view, Ms ABH raises two additional points. She contends that the spirit if not the letter of the Act is such as to require the release of information to persons where that information has a serious and substantial impact on their lives. She argues that "the result of the above competition has had and continues to have a severe and damaging impact on my life and career. I know that if I have reasonable access to the notes, marks and procedures that took place I can show that the decision of the interviewing panel was wrong and unfair". She also argues that in providing this information it is not necessary to release the actual marks but to provide a comparison of how she (Ms ABH) was marked under each heading as compared with the other candidate. It seems to me that this latter suggestion does not get over the question of releasing personal information about a third party. It is true that it would involve the release of less information than the actual marks but if, in any given situation, there are enough candidates willing to pool information, this could lead to the disclosure of the marks of a candidate who did not want to have his/her marks revealed. Therefore, for the purposes of this decision I make no distinction between releasing the actual marks of a candidate and releasing a comparison of Ms ABH's performance with that of the other candidate.
Ms ABH has suggested that I am concerned with keeping to the letter of the Act while totally ignoring its spirit. Her comment appears to have been made in response to my preliminary view that I could not see any public interest in revealing the marks of other candidates which would outweigh their privacy rights. I should make it clear at the outset that, while I must be mindful of the spirit of the Act in coming to my decisions in the sense that in interpreting the Act I must have due regard to the purpose for which it was enacted, I cannot make decisions which ignore clear and unambiguous provisions of the Act. To do so would not be to uphold the spirit of the Act, but the reverse. In any event, I do not see any conflict in this case between the spirit and the letter of the Act.
It seems to me that the best guide to the "spirit" of the Act is its Long Title " AN ACT TO ENABLE MEMBERS OF THE PUBLIC TO OBTAIN ACCESS, TO THE GREATEST EXTENT POSSIBLE CONSISTENT WITH THE PUBLIC INTEREST AND THE RIGHT TO PRIVACY, TO INFORMATION IN THE POSSESSION OF PUBLIC BODIES AND TO ENABLE PERSONS TO HAVE PERSONAL INFORMATION RELATING TO THEM IN THE POSSESSION OF SUCH BODIES CORRECTED AND, ACCORDINGLY, TO PROVIDE FOR A RIGHT OF ACCESS TO RECORDS HELD BY SUCH BODIES, FOR NECESSARY EXCEPTIONS TO THAT RIGHT AND FOR ASSISTANCE TO PERSONS TO ENABLE THEM TO EXERCISE IT, ........." It is clear from this that the Act does not set out to grant requesters a complete and unfettered right of access to all records held by public bodies. Among other things, it recognises that the right of access must be balanced in some cases against the right to privacy of other individuals. The concern for the privacy rights of individuals is given specific expression in section 28 of the Act.
Section 28(1) provides that
" Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual)".
Section 28(2) provides for a number of exceptions to this, and of these, the only ones which may have relevance is subsection (a) which provides for access to personal information which relates to the requester and subsection (b) which provides for access with the consent of the individual. It is clear that the marks of the other candidates do not relate to personal information about the requester.
I have not been advised by Ms ABH that she has the consent of any of the candidates whose marks she is seeking. In certain instances it may be appropriate for the Information Commissioner to seek the consent of a third party where the public body has not done so. In my view, this is not such a case. The particular candidate whose marks are of interest to Ms ABH is clearly known to her. If Ms ABH feels unable to obtain this information from the party concerned through a direct approach, I see no reason to suppose that a request from the Information Commissioner for permission to release the information under the FOI Act will meet with any greater success.
As I explained to Ms ABH, the Act does provide for access to the personal information of a third party in one other circumstance which is of relevance in the present case. This is dealt with in section 28(5) which provides as follows :
"Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual aforesaid, the head may, subject to section 29, grant the request ".
In this case, Ms ABH is seeking access to records the disclosure of which will involve the disclosure of personal information about persons other than the requester. I am required by section 28 to recognise the privacy rights of these third parties. I am required by section 28(5) to identify a positive public interest which can outweigh these privacy rights.
Ms ABH did not argue the public interest point to me in any detail. However, it seems to me that three possible public interest factors emerge from the arguments which she has put forward. The first is the public interest in requesters exercising their rights under the Act. The second is the possible public interest in exposing wrongdoing, error or unfairness. The third is a possible public interest in achieving greater transparency in competitions for posts in the public service.
There is an undoubted public interest in requesters, including Ms ABH, exercising their access rights under the Act. However, having regard to the Long Title of the Act and to the specific terms of section 28 it seems to me that, generally, sufficient weight will not attach to this factor, of itself, to enable it to be said that the public interest in the exercise of access rights will outweigh the right to privacy of a third party. Having said that, I could envisage a case in which information of great use or value to the requester is sought and its disclosure might have a minimal impact on the privacy of another individual and, in such circumstances, disclosure might be appropriate in the public interest.
In the present case, I accept that Ms ABH attaches great importance to the information sought. She suspects that the outcome of the competition was unfair and she believes that she can prove this to be the case if she has access to the marks of other candidates. However, I do not accept that disclosure in this case will involve no more than a minimal intrusion on the privacy of the other candidates. It is true that the information sought in this case might not be considered particularly sensitive by some. On the other hand, many candidates may feel that how they fared in a competition of the kind in question is a private matter between themselves and the LAC. Revealing their marks could expose them to comments, judgements and inferences of all kinds from work colleagues, acquaintances or unsuccessful candidates. Successful candidates may feel that, having satisfied the LAC about their suitability for a post, they should not have to run the risk of being called upon to justify their performance again to otherparties who might take a different view of the matter. In the circumstances, I have decided that the public interest in Ms ABH exercising her access rights does not, of itself, outweigh the right to privacy of the other candidates.
The second public interest which I mentioned is the public interest in exposing any wrongdoing, error or unfairness of procedure in the management of the competitions in question. In the course of her correspondence to me, Ms ABH has made the point most vehemently that one particular candidate was favoured at her expense. She has claimed that the candidate's qualifications and experience are such that on an objective basis she could not possibly have been allocated higher marks than Ms ABH under these two headings.
I should make it clear that it is not the function of the Information Commissioner to second guess the work of the LAC. Thus, where marks have been awarded by an interview board based on their judgement, I have to assume in the absence of any other evidence that the marks were awarded in good faith. Ms ABH claims that experience can be measured in an objective way and if this were true it could be argued that I should examine whether the marks in respect of experience were "correctly" awarded in this case. No doubt it would be possible to devise a marking scheme which would seek to standardise the way in which marks for experience should be awarded by an interview board. However, this was not done in the competition in question. Instead, the board assessed knowledge and experience together and there is no indication of how they went about comparing the experience of different candidates. I should say that even if the board had adopted a marking scheme in respect of experience, I would have thought that its application would still involve a large degree of judgement; so much so that it would be difficult for me to say that the board had made an error. Similar considerations apply as regards the assessment of candidates under the heading of personality and suitability. In the circumstances, I find that there is no evidence of wrongdoing, error or unfairness available to me in respect of these aspects of the competition.
In relation to qualifications, the LAC has indicated to Ms ABH that the following marking scheme was adopted. Candidates were awarded 50 marks for a primary degree, 5 marks for an accredited Masters degree and 5 marks for a recognised Diploma/Masters. The marking scheme did not distinguish between primary degree in the subject most relevant to the post and a primary degree in any other subject.
The qualifications for the office as set out in the job specification state that
"The Minister for Health and Children has directed that the qualifications for post X in a Health Board shall be as set out hereunder:
1. PROFESSIONAL QUALIFICATIONS, EXPERIENCE ETC.
(A) On the latest date for receiving completed application forms for the office, candidates must:-
(a) hold a recognised University degree or diploma obtained with first or second class honours in which [a particular subject] was taken as a major subject and honours obtained in that subject;or(b) hold a recognised qualification equivalent thereto;
(B) (i) hold a recognised post graduate qualification in [a particular field]or(ii) have at least two years satisfactory experience [in certain areas of the Health Service]or(iii) have two years satisfactory experience equivalent to (b)(ii)".
The marking scheme devised by the interview board could be criticised as not being totally consistent with the requirements as set out above. One might expect that the marking scheme would allocate 50 marks in respect of the basic entry qualification as set out at (A) above (as opposed to 50 marks for a primary degree) and additional marks for other qualifications. However, any such perceived deficiency in the marking scheme is not a matter for me as Information Commissioner. My sole concern is whether the marking scheme set out above, which the LAC disclosed to Ms ABH, was adhered to by the board. If it was not, then the public interest might require that the actual scheme used (and the marks allocated to individual candidates) be disclosed. In the event, I find from the evidence put before me by the LAC that the scheme was adhered to by the board in the case of all candidates and, in the circumstances, I find that there is no evidence of wrongdoing, error or unfairness in relation to this aspect of the competition which would require the disclosure of the actual marks of candidates.
In the circumstances, I find that there is no evidence which would justify me in holding that the public interest in exposing wrongdoing, error or unfairness is relevant in this case.
The final public interest factor which I mentioned above is the possible public interest in greater transparency in the running of competitions for posts in the public service. It could be argued that there is a public interest in greater transparency in the conduct of competitions of this kind. Disclosing the marks obtained by all the candidates in these competitions, it might be argued, could help to promote fairness in the procedures used by the boards in assessing the candidates and might guard against bias. However, as I have already indicated, disclosure of the marks of all candidates could lead to a situation where a successful candidate could be obliged on an ongoing basis to justify to unsuccessful candidates, or even candidates placed lower on the order of merit, the decision of the board in relation to them. I find the possibility of such an outcome is the greater in competitions such as those under discussion, where the majority of the candidates are known to each other, may even be employed by the same organisations and in all likelihood will be competing against each other in similar circumstances in the future. It seems to me that such an outcome could only have a detrimental effect on the working relationships of some of the parties concerned and is not in the public interest. The greater public interest lies in, as far as possible, achieving finality and acceptance of the decisions of the selection body, in this case the LAC. Naturally, there is a public interest in a candidate being given access to material which will allow him/her to understand how his/her own candidature was assessed. However, this does not require access to the marks of other candidates.
Taking all of the above considerations together, therefore, I find that there is no public interest in granting Ms ABH access to these records which would outweigh the right to privacy of the other candidates in these competitions.
I note that the LAC has agreed to allow Ms ABH access to the notes of the interview board in both competitions which contain personal information relating to her. By this I understand that she will be given access to all records which contain the notes of the interview board in relation to her candidature. As Ms ABH has already been apprised of her marks and her order of merit position in both competitions, I do not consider it necessary to direct release of those portions of these records which relate to these matters.
Having carried out a full review of the decisions of the LAC both initially and on internal review, I uphold the decision of the LAC in relation to its refusal to provide access to the records which contain personal information about the other candidates and, in particular, the marks of the other candidates.