Decision
Dr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-153562-Q2B4W3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153562-Q2B4W3
Published on
Whether the HSE was justified in refusing access to records relating to two specified statistician posts within the HSE on the basis of section 37 of the FOI Act
14 October 2025
The applicant in this case is a staff member of the HSE. The applicant took part in a competition for a position as Grade VII Statistician within the HSE which was referred to as the NRS12377 competition.
On 4 March 2024, the applicant sought access to the following:
1. The full name of the individuals who hold the posts with the position numbers [Position A] and [Position B];
2. The start dates of the individuals occupying the above posts;
3. The grades given to all other candidates, including the winner of the competition, in all competency areas for interview reference number NRS12377 as well as clarification on which of Position A/B is or was occupied by the winner of the NRS12377 competition;
It would appear that the HSE identified two records as falling within the scope of the applicant’s request; namely the contract of employment of the individual occupying Position A and the interview notes for competition NRS12377. In a decision dated 31 May 2024 the original decision-maker refused access to the first record and those parts of the second record relating to individuals other than the applicant on the basis of section 37 relating to personal information. It also would appear that the original decision-maker refused access to those parts of the interview notes relating to the applicant (comprising 11 pages) on the basis of section 15(1)(g) relating to frivolous/vexatious requests saying these pages had been granted to the applicant as part of a previous FOI request (2024.FOI.001). Finally, the original decision-maker indicated that no records had been identified as relating to Position B as this position had not been filled.
On 27 June 2024 the applicant sought an internal review of this decision. On 10 July 2024 the internal reviewer issued her decision wherein she affirmed the original decision.
On 11 November 2024 the applicant applied to this Office for a review of the HSE’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 the applicant’s comments in his application for review and to the submissions made by the HSE in support of its decision. I have also regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
The first and second part of the applicant’s request solely seek the name of the individual occupying Position A and their start date in the position. However, the HSE has identified the entirety of the contract of employment of this individual (record 1) as falling within the scope of the request. Having carefully considered the matter, I am satisfied that only the name of the individual in the record and the commencement date of the contract; which are contained at parts 1 and 2 of the record respectively, can correctly be considered to fall within the scope of this request and I will proceed accordingly.
Further, I have carefully considered the scope of the third part of the applicant’s request. Having done so, and bearing in mind that the applicant had himself applied for the Grade VII Statistician competition, I am satisfied that the plain meaning of the applicant’s request for ‘the grades given to all other candidates’ excludes the scores which he received as part of the competition. In any event, I note that the HSE indicated that it has already provided the applicant with his own scores in the competition as part of a separate FOI request numbered 2024.FOI.001. In the circumstances, I am therefore satisfied that I am not required to consider the reliance by the HSE on section 15(1)(g) to refuse access to the marks achieved by the applicant in the relevant competition as I consider these pages of record 2 relating to the applicant to fall outside the scope of his request.
The review is therefore solely concerned with whether the HSE was justified in refusing access to the name of the individual occupying Position A and their start date in the position as well as the scores obtained by candidates other than the applicant in competition NRS12377 on the basis of section 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, as has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Secondly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, 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”.
Section 2 goes on to specify 14 categories of information that is personal information for the purposes of the Act, including (iii) information relating to the employment or employment history of the individual (v) information relating to the individual in a record falling within section 11(6)(a) [i.e. a personnel record], (ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose’.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the individual’s name is excluded, as is information relating to the position held, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph (I) refers). The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions.
In his application to this Office, the applicant said that he does not consider the relevant parts of record 1 to comprise the personal information of the individual occupying Position A. With regard to record 2, the applicant said that neither marks awarded for interview nor the interview notes are enumerated amongst the definition of personal information within section 2 of the FOI Act. The applicant said that such information cannot be personal information as it could not assist in identifying an individual who may have refused a job offer. The applicant further argued that the grades given to an individual at interview are records prepared by interviewers as part of the performance of their functions and are therefore excluded from the definition of personal information by virtue of Paragraph (I) of the definition.
In its submissions to this Office, the HSE said that it considers that the full name of the individual who occupies Position A and the start date of the individual in the position as contained in record 1, as well as the marks awarded to candidates other than the applicant in the interview note-taking sheets in record 2, all comprise the personal information of individuals other than the applicant and fall within the meaning of personal information.
With regard to the full name of the individual occupying Position A, the HSE said that the HSE uses a SAP HR system which includes a unique identification position number of each staff member. It said that this allows for the management of personnel including controls on the recruitment of staff within the financial constraints placed on the HSE. The HSE said that the position number falls within section (ix) of the definition of personal information; namely it comprises a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose. The HSE said a position number is considered a unique identifier assigned to each employee to distinguish it from all others for the purposes of tracking, management and identification purposes. It further said that the name associated with a position number is generally only known to a small cohort of personnel, usually those processing HR data or the relevant line manager of the employee, saying that it is not information that should be disclosed to the world at large. Finally, the HSE said that it did not consider that the position number fell within the exclusion from the definition of personal information as set out in Paragraph (I).
With regard to the start date of the individual occupying Position A, the HSE said that it considers that this also comprises the personal information of the individual in question as it forms part of his personnel file within the meaning of section 11(6)(a). In addition, with regard to the information relating to individuals other than the applicant falling within the scope of the third part of the request, the HSE said that it considers that the marks awarded and the interview note taking sheets relating to candidates other than the applicant who were interviewed as part of the NRS12377 competition to comprise their personal information. It said that details provided as part of a competency based interview, including specific candidate answers under each competency, comprises very personal information relating to that individual.
The HSE further indicated that the applicant in this case has submitted a number of other FOI requests to the HSE Shared Services Office of which a number relate to the post of Grade VII Statistician in the Health Pricing Office. It said that due to the combination of requests made by the applicant, the release of the name of the individual who holds position A would result in personal identifying information of a staff member being disclosed. Reiterating its view that a position number is a unique identifier known only to a small cohort of HSE personnel such as those processing HR data or the a relevant manager, it said that the fact that such information is not widely disclosed within the HSE is demonstrated by the fact that when HSE management submit and sign off on the recruitment of vacant posts they are required to only ever reference the vacant post by its position number and do not include the name of the current or previous holder(s) of that position number in any documentation relating to the recruitment of staff. The HSE said it holds a very strong opinion that the name of the successful candidate occupying Position A is personal information to the position-holder as it is considered to fall within the definition of a personnel record.
In conclusion, the HSE said that in light of the multiple requests by the applicant with respect to various elements of the competition in question, the release of elements of information of a personal nature of another individual, or a combination of elements, may allow the requester to build a profile about other individuals which may impact on their privacy rights as individuals or public servants.
As I have explained above, the exclusion to the definition of personal information set out in Paragraph (I) provides that personal information does not include the name of an individual who holds or held a position as a member of the staff of an FOI body or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions. I have carefully examined the records at issue. Having done so, with respect to the first name and surname of the individual occupying Position A, I am satisfied that such information is covered by the exclusion to personal information contained at Paragraph (I).
I have carefully considered the HSE’s arguments with respect to the position number of the individual occupying Position A. I accept the HSE’s position that this number is not regularly used and tends to be known only to the employee’s manager and HR staff. However, it is not apparent to me how such a number could constitute a ‘a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification’ in circumstances where the HSE has also indicated that this number is used when referring to vacant posts as part of a recruitment process and would therefore appear not to be associated with a specific individual. In such circumstances, it does not appear to me that a position number can be said to constitute a number assigned to a specific individual within the meaning of section (ix) of the definition of personal information.
I have further considered the specific arguments made by the HSE that in light of the multiplicity of FOI requests made by the applicant, the release of the name of the individual occupying position A, following a request specifically identifying Position A, would result in personal information in relation to a staff number being disclosed. The HSE submissions indicate that while the position number is currently assigned to the occupant of Position A it may have previously been assigned to a previous holder of that position and could in future be assigned to a future holder of the position. In such circumstances, it is not apparent to me how the release of the current occupant of the position could result in the release of personal information. In the absence of any further information from the HSE, and in circumstances where the exclusion at Paragraph (I) clearly envisages that the names of staff members of FOI bodies is not considered their personal information when relating to their position and the terms and conditions on which they hold that position, I am not satisfied that the release of the name of the occupant of Position A would result in the release of personal information relating to the individual currently occupying that position.
I am, however, satisfied that the disclosure of the following information contained in the records would involve the disclosure of personal information relating to individuals other than the applicant:
• The middle name of the holder of Position A as set out in record 1;
• The commencement date of the holder of Position A;
• The scores obtained by individuals other than the applicant in record 2
I am satisfied that the text I have identified above is personal information relating solely to the occupant of Position A and candidates in competition NRS12377 and does not relate to the applicant. I find, therefore, that section 37(1) applies to this information.
As section 37(1) of the Act is subject to the other provisions of the section, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the above information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicants’ motives for seeking access to the information at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of the release of the records, i.e. in so far as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In its submissions, the HSE said that on balance the public interest factors that the request should be granted do not outweigh the public interest of the right to privacy of the individual to whom the information relates. It said that the right to privacy of staff members of the HSE including the date on which they take up a position in the HSE, is a very strong right and the HSE as a public body has a duty to maintain the confidentiality of recruitment and employment records. The HSE said that in light of the multitude of requests submitted by the applicant with respect to various aspects of the competition in question, it considers that the applicant is seeking access to personal information of the successful candidate for his own private interest as opposed to the seeking the information in the public interest.
In further submissions to this Office the applicant stated in line with administrative law principles public bodies are required to act fairly, transparently and accountably. He said that these principles underpin the expectation that public bodies will provide reasons for their decision when requested. The applicant further contends that scores given to a candidate in a job interview are the basis of a ‘job offer decision’ and therefore should be available to the public.
While the applicant’s arguments generally relate to his own interactions with the HSE and could be taken as a private interest, I accept that there is a public interest in knowing how the HSE manages recruitment processes in general and more specifically how the recruitment process for the NRS12377 competition was undertaken.
On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
As noted above, the records at issue contain the middle name and commencement date for the individual occupying Position A following the relevant recruitment process as well as scores obtained by individuals other than the applicant in competition NRS12377.
I accept that there is a public interest in ensuring that the HSE is adequately carrying out its recruitment processes. Having said that, it seems to me that while the release of the personal information identified above would shed some light on the HSE’s role in these matters, it would also reveal very personal information in relation to the specific scores obtained by these individuals in a competitive recruitment process. These matters seem to me to be of an inherently private and sensitive nature and I must regard their release as being effectively, or at least potentially, to the world at large.
Furthermore, while I accept that, as an employee of the HSE, the applicant may be aware of certain information with regard to Position A, this Office takes the view that the fact that a requester may be aware of the nature of the information or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act. However, I must regard the release of the records at issue to being effectively, or at least potentially, to the world at large. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information outweighs, on balance, the privacy rights of the relevant third parties. In particular, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 37(5)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find it was justified in refusing access to the following information on the basis of section 37(1):
• The middle name of the holder of Position A as set out in record 1;
• The commencement date of the holder of Position A; and
• The scores obtained by individuals other than the applicant in record 2.
However, I find it was not justified in refusing access to both the first name and surname of the individual occupying Position A. I direct that this information be released to the applicant.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Mary Connery
Investigator