Whether UCC was justified in its decision to refuse the applicant’s request for access to four categories of records relating to scores awarded to candidates in a senior lectureship promotion competition under sections 15(1)(a), 30(1)(b) and 37 of the FOI Act
3 June 2020
In a request dated 4 July 2019, the applicant sought access to eight categories of records relating to a senior lectureship promotion competition at UCC in which he was a candidate. On 1 August 2019, UCC granted partial access to three records and refused access to the remaining records under sections 15(1)(a) and 37(1) of the FOI Act. On 8 August 2019, the applicant sought an internal review of UCC’s decision to refuse access to the information sought at parts four to seven of his request, namely;
Part Four: The lowest overall score achieved by a successful candidate in the competition
Part Five: The highest score achieved in each of the eleven selection criteria
Part Six: The lowest score achieved by a successful candidate in each of the eleven selection
Part Seven: The average mark achieved by successful candidates in each of the eleven selection
In a decision dated 8 October 2019, UCC affirmed its original decision to refuse access to parts four to seven under section 15(1)(a) on the ground that the records sought do not exist and even if they did, that they would be exempt from release under section 37(1). On 15 October 2019, the applicant sought a review by this Office of UCC’s decision.
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 UCC and the applicant as outlined above and to correspondence between this Office and both UCC and the applicant on the matter. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
During the course of the review, UCC argued that that the information sought was also exempt under section 30(1)(b. Accordingly, this review is concerned solely with whether UCC was justified in its decision to refuse the applicant’s request for access to four categories of records relating to scores awarded to candidates in a senior lectureship promotion competition under sections 15(1)(a), 30(1)(b) and 37 of the FOI Act.
Analysis and Findings
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, UCC argued that no records exist that contain the specific information sought at parts four to seven of the applicant’s request. It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates.
The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.
However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
UCC argued that section 15(1)(a) applied to the applicant’s request for the lowest overall score achieved by a successful candidate in the competition. In its submission to this Office, however, it said it holds a spreadsheet comprising an alphabetical listing of candidates showing overall scores of each candidate for each of the three category areas in which they were assessed and each candidate’s overall total score. It acknowledged that the lowest overall score achieved by a successful candidate could technically be extracted from that spreadsheet. I am satisfied that UCC holds the information in question and that it can be extracted from the relevant spreadsheet by the taking of reasonable steps as provided for in section 17(4). I find, therefore, that UCC was not justified in refusing access to part four of the applicant’s request under section 15(1)(a).
Parts Five and Six
UCC explained that all applicants at stage two of the promotion competition were assessed and scored against criteria under three broad areas. It said all applicants at stage two were awarded marks under 11 criteria within the three broad category areas and recorded in a table within each applicant’s feedback form. It argued that the release of the highest score achieved in each of the 11 criteria and the lowest score achieved by a successful candidate in each of the eleven selection criteria would require the extraction of each individual applicant’s 11 scores from the 120 applicant Feedback Forms (over 1,300 line items), inputting this information into a separate listing on an appropriate software package and sorting this created dataset 11 times (once each by selection criterion) to identify the highest score.
While the process described by UCC for identifying the relevant information may well be the most efficient method for doing so, it is not the only method, It seems to me that the information sought could be identified by way of a manual inspection of the various feedback forms. However, the only question I must consider in determining whether or not section 15(1)(a) applies is whether the information sought is held in a record or records and can be released without the need to create a new record. I am satisfied that the information sought is contained in the feedback forms and once identified, is capable of release without the need for the creation of a new record. As such, I find that section 15(1)(a) does not apply.
At part seven of his request, the applicant sought details of the average mark achieved by successful candidates in each of the eleven selection criteria. I am satisfied that this information is contained in the electronic spreadsheet held by UCC and that it is not contained within the individual feedback forms. Instead, the release of the information would require the compilation of a new record. As such, I find that UCC was justified in refusing the information sought at part seven under section 15(1)(a) on the ground that the record sought does not exist.
In summary, therefore, I find that UCC was justified in refusing part seven of the applicant’s request under section 15(1)(a) but that it was not justified in refusing parts four to six under that section. However, that is not the end of the matter as UCC also claimed the information in question to be exempt from release under sections 37(1) and 30(1)(b). I will address the applicability of section 37(1) in the first instance as I consider it to be a more relevant exemption in the particular circumstances of this case.
Section 37(1) of the Act provides for the mandatory refusal of a request where the public body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester.
For the purposes of the Act, personal information is information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Fourteen specific categories of information are included as personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11 (6)(a) (i.e. personnel records).
Certain information is excluded from the definition of personal information where the individual holds a position as a member of the staff of the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. However, this Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally.
It is noteworthy that for information to be regarded as personal information, it must be information about an identifiable individual. As such, a record does not have to specifically name a particular individual for the information in the record to comprise personal information relating to that individual. It is sufficient that the individual is identifiable from the information in question.
UCC argued that the information sought at parts four to six of the applicant’s request relates to specific candidates and is personal to those candidates. It said it is aware from correspondence received from several candidates that a certain subset of stage two candidates had elected to share marks and feedback with each other. It argued that this activity of candidates creates a very real prospect of candidates generating rankings which would readily identify marks of other individuals irrespective of whether such individuals elected to share such information with their colleagues.
This Office has previously consider similar arguments concerning the pooling by individuals of information which would allow for the identification of other individuals. In Case 98104, the then Commissioner considered whether the release of the Leaving Certificate Exam results would involve the disclosure of personal information relating to the students. He noted that the requirement is that release would (rather than could) involve the release of personal information. He noted that it is not sufficient that some possibility, no matter how remote, exists that the granting of a request could involve the disclosure of personal information and that what the exemption provision requires is that the public body take into account all means which may be available to the requester (or to anyone else to whom the information might be communicated) which might be used to relate the information to an identifiable individual.
The then Commissioner noted that in some cases the only means available to the requester or to another party to discover, with the aid of the record sought, personal information about a third party, will involve the co-operation of others. He said in such cases, the likelihood of such co-operation being forthcoming needs to be taken into account. He found that to seek to apply the exemption provision in any circumstance, however remote, in which release might disclose personal information is not supported by the terms of the provision which refers to "would" rather than to "could". He also found that such an approach would not be consistent with the Long Title of the Act which sets out its purpose as to enable members of the public to access records held by public bodies "to the greatest extent possible consistent with the public interest and the right to privacy....". He found that an interpretation of the exemption provision which permits all contingencies, no matter how remote, to be taken into account in deciding that release would involve the disclosure of personal information runs the risk of frustrating, rather than achieving, the purpose of the Act as set out in the Long Title.
I understand that in this case, of the 120 applicants who progressed to stage two of the selection process, there were 40 successful candidates. As I have described above, the information sought at the relevant parts of the request comprises;
• Part four - the lowest score achieved by a successful candidate (40 candidates),
• Part five - the highest score achieved in each of the eleven selection criteria (120 candidates), and
• Part six - the lowest score achieved by a successful candidate in each of the eleven selection criteria (40 candidates).
UCC stated that the 40 successful candidates were not ranked in line with the scores achieved and that all 40 were placed in the available promotional posts. As such, I am satisfied that the release of the information sought at part four would not, of itself disclose personal information about an identifiable individual. On the matter of the possibility of the pooling of information, I accept UCC’s assertion that a certain subset of stage two candidates had elected to share marks and feedback with each other. However, it seems to me that the possibility of the majority of 40 candidates sharing their individual scores (or 120 candidates in the case of part five) which would result in the identification of the scores achieved by the individuals who choose not to share their results is simply too remote. For example, it does not seem to me that the likely benefit, if any, to the individuals in question is such that such a number of those individuals would chose to share the relevant information to the extent that it would allow for the identification of the remaining individuals.
In the circumstances, I find that the release of the information sought at parts four to six of the applicants request would involve the disclosure of personal information for the purposes of the Act. I find that UCC was not justified in refusing those parts of the request under section 37(1).
Section 30(1)(b) provides for the refusal of a request where the body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(2) provides that section 30(1)(b) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record.
This Office expects an FOI body relying on section 30(1)(b) to identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a “significant, adverse” nature (rather than, say, the “prejudice” standard contained in other provisions of the FOI Act). The FOI body should then explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.
In its submissions to this Office, UCC argued that disclosure of statistical data relating to candidates could have a significant, adverse effect on the University’s ability to operate promotion schemes in the future. It argued that the release of such data could be deemed to undermine the decision of the Board to recommend the successful cohort of applicants for promotion and could render it difficult to constitute such Boards in the future.
UCC has not explained how the release of the information at issue could reasonably be expected to undermine the decision of the Board in this or in future competitions or render it difficult to constitute future such boards, nor am I aware of how such harms might arise. Furthermore, while it may be the case that UCC has not, to date, released statistical data of the type sought in this case, it is noteworthy that candidates are provided with their individual scores. In the circumstances, I find that section 30(10(b) does not apply in this case.
In conclusion, therefore, I find that UCC was justified in refusing access to part seven of the applicant’s request under section 15(1)(a) but that it was not justified in refusing parts four to six on any of the grounds cited.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of UCC in this case. While I find that it was justified in refusing part 7 of the applicant’s request for records relating to scores awarded to candidates in a senior lectureship promotion competition under section 15(1)(a) of the Act, I find that it was not justified in refusing parts four to six under sections 15(1)(a), 30(1)(b) or 37(1) of the FOI Act. I direct the release of the information sought at parts four to six.
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.
3 June 2020