Case number: 180233
In 2017, the applicant was not short-listed for interview in connection with a competition for which he had applied. On 8 March 2018, he submitted a request to PAS for "any and all references" to his application. On 13 March 2018 he asked PAS to extend his request to include "any general records held by PAS in relation to the candidate selection process itself, in terms of competencies (and decisions around same), and extending to the competencies of interview board members, and the process around such selection". On 9 April, PAS issued a decision on the first request, identifying and releasing two records. It issued a decision on the second request on 13 April 2018, identifying and releasing four records. On 19 April 2018, the applicant submitted a single internal review request to PAS, presumably on the basis of his understanding that he had made a single request.
PAS issued a single internal review decision on 10 May 2018 in respect of both requests. It identified 57 further records, releasing 54 of these in full and granting partial access to the remaining three records, with redactions under sections 30(1)(a) and (b), 36(1)(a) and (b), and 37(1). It refused access to any further records under section 15(1)(a) on the ground that no further relevant records exist.
On 14 June 2018, the applicant sought a review by this Office of that decision. In conducting this review, I have had regard to the correspondence between the applicant and PAS, and to the correspondence between this Office and both the applicant and PAS on the matter. I have also had regard to the contents of the relevant records. In referring to the records at issue, I have adopted the numbering system used by PAS in the schedule it released to the applicant with its internal review decision.
In his application for review to this Office, the applicant stated that one of the records he received at original decision stage was substantially redacted. The record in question is a report of the short-listing board from which information relating to candidates other than the applicant was redacted. He also referred to the absence of records relating to other candidates. The applicant's request was for (i) references to his application, and (ii) general records relating to the candidate selection process itself in terms of competencies (and decisions around same), and extending to the competencies of interview board members, and the process around such selection. I am satisfied that the request does not capture information relating to the other candidates in the competition and that neither the redacted part of the report of the short-listing board, nor any other information or records relating to other candidates, are captured by the scope of his request.
I am satisfied that the relevant part of the report of the short-listing board that was captured by the applicant's request was released in full. As such, I will give no further consideration to this record, or to the question of whether other records relating to other candidates fall for release. This includes the redacted parts of records 56 and 57. The information redacted from record 56 comprises the scores awarded by the preliminary interview board to the various candidates and details of the candidates selected for main interview. The information redacted from record 57 comprises the details of the candidates selected for main interview.
This review is therefore concerned solely with whether the PAS was justified in redacting certain information from record 55 on the basis of the exemptions claimed and whether it was justified in refusing access to further relevant records coming within the scope of the applicant's request under section 15(1)(a) on the ground that no further relevant records exist.
In his correspondence with this Office, the applicant set out in detail what he considered to be deficiencies in the selection process. He argued that a more comprehensive release of records is required in the interests of transparency and accountability in relation to the selection process. It is important to note at the outset that this Office has no role in examining the fairness, or otherwise, of the selection process employed by PAS. Furthermore, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.
Record 55 comprises guidelines for preliminary interview board members. Among other things, the record contains details of the key skills and competencies and the key elements of those competencies. PAS redacted suggested questions that the board members may wish to put to candidates during interview, citing sections 30(1)(a), 30(1)(b), 36(1)(a), and 36(1)(b) of the Act.
Section 30(1)(a) provides for the refusal of a request if the body considers that access to the records sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The provision envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc. (i.e. the ability of the test, etc., to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur.
PAS argued that the release of the redacted information could reasonably be expected to prejudice both the effectiveness of interviews conducted by it and the effectiveness of the procedures employed for their conduct. It argued that if the information was released, the interview process would be compromised as at least one candidate would have an unfair advantage over other candidates in future campaigns. It also argued that as release under FOI is effectively the equivalent of release to the world at large, potential candidates in future competitions could access the suggested questions for interview, hence prejudicing the methods used by PAS to select candidates.
The nature of competency based interviews is such that candidates are aware in advance of the competencies on which they will be questioned at interview. As such, it would be reasonable to expect that a well prepared interviewee may be able to anticipate one or more of the questions that are posed at interview. However, this is not the same as an interviewee being given an advance list of potential questions that have been prepared for the interview board in respect of each competency. I accept that the disclosure of the information redacted from record 55 could reasonably be expected to give rise to the harms identified in section 30(1)(a) and I find, therefore, that the section applies in this case.
Section 30(2) provides that section 30(1) shall not apply where the body considers that the public interest would, on balance, be better served by granting rather than by refusing to grant the request. The applicants arguments are based generally on his views that the relevant selection process was deficient. He argued that there was a serious lack of transparency at each of the key stages of the interview process and that as a result, there was a consequential major deficit in accountability which cannot be in the public interest.
I fully agree that there is a public interest in enhancing the transparency and accountability of PAS in the manner in which it conducts recruitment and selection competitions such as the one at issue in this case. Indeed, section 11(3) of the Act requires public bodies performing functions under the Act to have regard to, among other things, the need to achieve greater openness in their activities and the need to strengthen their accountability and to improve their decision making.
On the other hand, there is a countervailing public interest in ensuring that the effectiveness of the selection process undertaken by PAS and the methods used in those selection processes are not prejudiced. It is also important to note that there are existing mechanisms available to candidates to challenge the fairness of such selection processes. The Commission for Public Service Appointments, as the independent regulator for public service recruitment, is responsible for examining complaints alleging breaches of its published Codes of Practice.
The Code of Practice for Appointment to Positions in the Civil Service and Public Service sets out the regulatory framework for such appointment processes and centres on recruitment principles of probity, merit, best practice, fairness and transparency. However, the level of transparency required or expected does not apply to the extent that the potential future use of the selection processes themselves, or their effectiveness, may be prejudiced. In this case, it seems to me that the public interest in enhancing transparency and accountability of PAS has been served to some extent by the material released to date. I find that the public interest would, on balance, be better served by refusing access to the information in record 55.
In summary, therefore, I find that PAS was justified in refusing access to the information redacted from record 55 under section 30(1)(a). As such, I do not consider it necessary to examine the claims for exemption under the other provisions cited.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable.
In a submission to this Office, PAS provided details of the manual and electronic searches undertaken in an effort to locate records coming within the scope of the applicant's request and of its record management practices in relation to competitions such as the one at issue. I note that the applicant is aware of these details as PAS included them in its comprehensive internal review decision of 10 May 2018. It explained in that correspondence that some of the records sought by the applicant are either of a type that were not captured by the scope of his request or were of a type that PAS would not create.
The FOI Act provides for a right of access to records held by public bodies. If the record sought does not exist that is the end of the matter, regardless of whether or not the applicant believes that certain records ought to exist. Furthermore, the Act does not require public bodies to create any such records.
I note that Ms Lynch of this Office informed the applicant of her view that PAS was justified in refusing to release additional relevant records under section 15(1)(a) and that she invited him to make a further submission or to provide evidence to support his view that further relevant records exist, and that he has not done so.
Having regard to the searches undertaken by PAS to identify all relevant records, to its description of its record management practices in relation to competitions such as the one at issue in this case, and to the absence of evidence to suggest that additional relevant records should exist, I find that PAS was justified in refusing the request for additional relevant records apart from these identified and released under section 15(1)(a) on the ground that no further relevant records exist.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of PAS to redact certain information from record 55 under section 30(1)(a) and to refuse access to any additional relevant records under section 15(1)(a) on the ground that no further relevant records exist.
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.