Decision
Mr X and the Public Appointments Service (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170352
Published on
From Office of the Information Commissioner (OIC)
Case number: 170352
Published on
Whether the PAS has justified its refusal to fully grant access to a particular Interview Guide (the Guide)
Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
02 November 2017
The relevant part of the applicant's FOI request to the PAS of 12 June 2017 sought a copy of the Guide. The PAS decision of 16 June 2017 refused to grant access to the record. The applicant sought an internal review on 18 June 2017. The PAS internal review decision of 7 July 2017 granted partial access to the Guide. It withheld parts of it entitled "areas of exploration of key achievements", "questioning skills" and "guidelines for questioning."
On 10 July 2017, the applicant sought a review by this Office of the PAS refusal to fully grant his request. In the course of this review, the PAS granted access to the part of the Guide entitled "areas of exploration of key achievements".
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above and to correspondence between this Office, the PAS, and the applicant. I have had regard also to the provisions of the FOI Act and to a full copy of the Guide, which was provided to this Office for the purposes of this review.
This review is concerned with whether the PAS has justified its refusal to fully grant the applicant's request.
The PAS has relied on a number of exemptions in relation to the withheld information. I will consider the most relevant first i.e. section 30(1)(a) of the FOI Act.
Section 30(1)(a) provides that a request may be refused if granting it could, in the opinion of the head of the FOI body, 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.
In other words, 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.
To summarise the PAS submission, competency based interviewing was identified as suitable for the campaign to which the Guide relates. An Interview Guide was prepared to enable the interview board to accurately assess the extent to which the candidates possessed the required competencies for the job concerned, based on potential questions and the behavioural indicators that should be displayed accordingly. These behavioural indicators are "constant", and thus placing them in the public domain severely diminishes the interview's validity as an effective measure of the key competencies. For instance, candidates could tailor their responses to display the desired behaviours or get coaching to do so. Accordingly, the PAS would not be able to fulfil its role of identifying the best candidates for public service roles based on merit.
I also note the PAS arguments about the extent to which the contents of interview guides are kept confidential. It says that interview board members are required to maintain the confidentiality of the documents, which are made available only to relevant staff involved in the recruitment process and are not made widely available across the office.
Section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. I am satisfied that the withheld information can be described as a guideline to areas for questioning, and indicators of what should be evident from a suitable candidate's reply.
I accept that release of the withheld information under the FOI Act, which the PAS points out is effectively releasing it to the world at large, could reasonably be expected to prejudice the procedures or methods that the PAS employs for the conduct of interviews such as the one to which the Guide relates. I also accept that release could reasonably be expected to prejudice the effectiveness of PAS competency based interviews. Candidates with knowledge of desired behavioural indicators could reasonably be expected to ensure that they display those indicators in an interview, rather than indicators they might otherwise have shown. This reduces the ability of the PAS to distinguish between those candidates who inherently possess the necessary qualities and competencies, and those who do not. In turn, this impacts on the ability of the PAS to identify the most suitable candidates for public service positions. I find that section 30(1)(a) applies to the withheld information.
Section 30(2) provides that a record, which is otherwise exempt under section 30(1), may be released if, on balance, the public interest would be better served by granting rather than by refusing to grant the FOI request concerned.
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in the Rotunda case. It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, they are relevant to consideration of public interest tests generally.
The applicant was unsuccessful in the competition to which the Guide relates. He makes various comments that clearly represent his own private interests in obtaining the records, rather than "true public interest[s]". He contends that the PAS did not comply with various legislative requirements in its administration of the competition concerned and/or with what he describes as the Guide's "instructions".
I have no remit to consider, or make findings on, the adequacy of the PAS procedures in this, or any other, public service job competition. It would not be appropriate for me to direct the release of exempt information in the public interest, effectively to the world at large, on the basis of assertions to the effect that an FOI body's processes may have been inadequate or that relevant laws, policies, or guidelines were not complied with. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
In the case at hand, there is a public interest in ensuring that the PAS is open about, and can be held accountable for, how it carries out its various functions, particularly in relation to the competition to which the Guide relates. This public interest has been met, to some extent, by the material released to date from the Guide. I accept that it would be further served by fully granting the applicant's request.
However, there is also a public interest in protecting the PAS procedures for such competitions generally, and its ability to select the best possible candidates for public service positions (to whom public monies in the form of salary are paid).
Having considered the weight of the competing public interests, I find that the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the information be withheld.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the PAS refusal to fully grant the applicant's request under section 30(1)(a) of the FOI Act.
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.
Elizabeth Dolan
Senior Investigator