Decision
Mr Y and Public Appointments Service
From Office of the Information Commissioner (OIC)
Case number: OIC-129293-K4V6X2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-129293-K4V6X2
Published on
Whether the PAS was justified in refusing access, under section 15(1)(a), to further records relating to the applicant’s request for records relating to an interview he undertook on the ground that no further relevant records exist or can be found
18 May 2023
This request has its background in an interview the applicant undertook in respect of a selection process managed by the PAS. For the relevant competition, the Interview Board increased the qualifying mark under four specified competencies from 40% to 50%.
In a request dated 9 February 2022, the applicant submitted a three-part request to the PAS. He sought access to the following:
1. All information in the possession of the PAS relating to the change of a pass mark (40%) stated in the Main Interview Guide and the qualifying mark (50%) adopted by the Interview Board, including;
a) PAS Guidelines to follow when an interview board request an adjustment to the Main Interview Guide
b) notes of PAS representative recording just-in-time request from the chair of Interview Board to adopt a revised pass mark of 50%
c) all records held recording the request to alter and the approval from the PAS to adopt a revised pass mark of 50%
d) copies of all records relating to the issue of marking sheets or adjusted marking sheets to the Interview Board
2. All documentation/information held relating to receipt by PAS of a copy of a Candidate’s application form which, according to the applicant, should contain questions to be asked noted on it by the interviewers, including;
a) a copy of the log (note) of the PAS representative receiving this data following the applicant’s interview
b)documents received by the PAS representative relating to his application following his interview
c) a log (note) evidencing destruction of the applicant’s personal data if the documents were destroyed
3. Statistical information:
a) the total number of competitions run by the PAS during the calendar year 2021
b) the total number of competitions in which the interview board requested the PAS to approve a pass mark different to the pass mark contained in competition guidelines.
In its decision dated 17 February 2022, the PAS released a redacted copy of the Interview Board Report Summary from Interview stage for the particular competition that recorded the Board’s decision to change the qualifying mark, and a record containing the total number of competitions advertised by the Public Appointments Service in 2021. It redacted certain third party information from Record 1 under section 37(1) of the FOI Act. It refused the remainder of the applicant’s request under section 15(1)(a) of the FOI Act on the ground that no other relevant records exist or can be found. It said the change and approval in pass mark from 40% to 50% was a verbal conversation between the Recruitment Manager and the Interview Board and that no written notes exist in relation to that change. It also said that the PAS Representative did not receive any personal data in relation to the applicant following his interview. The applicant sought an internal review of that decision. Among other things, he said a PAS witness at a related Workplace Relations Commission (WRC) hearing advised under oath that documentation exists to verify the approval by the PAS of the change of pass mark by the interview board.
On 4 April 2022, the PAS released one additional record, comprising an audit log from the PAS recruitment platform that detailed the change of score for each competency from 40% to 50%. It provided additional background information in relation to the process of changing pass marks in support of its decision that no further records exist in relation to that matter, and otherwise affirmed its refusal of the request for additional records under section 15(1)(a). On 28 September 2022, the applicant applied to this Office for a review of the PAS’s decision.
During the course of the review, the Investigating Officer provided the applicant with details of the PAS’s submissions wherein it outlined the searches undertaken to locate the further records sought and its reasons for concluding that no further relevant records exist or can be found. The applicant was invited to make a further submission on the matter, and he did so.
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 correspondence between the applicant and the PAS as outlined above, and to communications between this Office and both the applicant and the PAS on the matter. I have decided to conclude this review by way of a formal, binding decision.
In his correspondence with the PAS and with this Office, the applicant focused solely on whether the PAS had located all relevant records. At no stage did he express dissatisfaction with the third party redactions made under section 37(1) of the Act to the records released with the original decision. Accordingly, I have not considered those redactions. The scope of this review, therefore, is concerned solely with whether the PAS was justified in its decision to refuse access, under section 15(1)(a) of the Act, to any further relevant records on the ground that no further relevant records exist or can be found.
Before I address the substantive issues, I would like to make some preliminary comments. First, it is important to note that this Office has no role in examining the administrative actions of FOI bodies in the performance of their functions. We have no role in examining the manner in which the PAS ran the competition that is the subject of the applicant’s FOI request. Our role is confined to reviewing the decision taken on the applicant’s FOI request.
Secondly, in his correspondence with this Office, the applicant asked if the PAS submissions made to this Office are disclosable under the FOI Act. It is not the practice of this Office to exchange submissions between parties to a review. Nevertheless, we take care to ensure that the parties are notified of material issues arising for consideration. Reviews undertaken by this Office under the Act are inquisitorial, as opposed to adversarial, in nature. I am satisfied that all material points raised by the PAS in this case have been provided to the applicant. I would add that records held by this Office relating to a review are not subject to the FOI Act, pursuant to Schedule 1, Part 1(q) of the Act. It is, however, open to the applicant to make a request to the PAS for a copy of the submissions it made to this Office during the review if he wishes to do so.
Finally, while I can appreciate the importance the applicant attaches to obtaining answers to his requests for information, 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 15(1)(a)
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this 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/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
PAS submissions
As I have outlined above, during the course of the review the Investigating Officer provided the applicant with details of the searches the PAS undertook in an effort to locate relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.
In relation to Part 1 of the request, which concerns records relating to the changing of the pass mark in the competition in question, the position of the PAS is that the documentation that the WRC Adjudication Officer was advised exists, which confirms the qualifying score was amended prior to the Interview commencing, was the Interview Board Report Summary. It said this is the only record where the change of pass mark (along with all other decisions made by this Board) was recorded.
The PAS said it does not create records outlining the date and time that a new pass mark is agreed by the Board, notes of the discussion of the Board prior to amending the pass mark, or a record of the Recruitment Team signing off on this change and when the marking sheets were amended. It said that when marking sheets require amendment for any reason, the relevant Recruitment Team will generate new sheets containing the correct information and will place the incorrect sheets in a confidential waste bin. It said that as the PAS processes require marking sheets to be amended for various reasons, it is considered a standard administrative practice and there is no requirement for staff to log or report such activities. It said its Records Management Guidelines outline that the Board Report should be stored on the relevant competition file and held indefinitely for National Archive purposes, and that duplicate records are destroyed. It said that as no other records of the type sought by the applicant are created or held by the PAS, there is no reference to such documents in the Records Management Guidelines.
In response to the Investigating Officer’s query as to whether the PAS holds any records containing details of what the PAS referred to in its decision letters as established procedures for occasions where the Board may wish to amend the qualifying mark in advance of the interview, the PAS said it does not currently hold any record outlining this procedure. It said, however, that on foot of the FOI request this has been identified as a gap which will be considered as part of an upcoming review of the PAS Procedural Guides. It said that when and if such a situation were to occur as part of an Interview process, new staff members would be expected to consult with an experienced Recruitment Manager who would be aware of what to do in such situations.
In relation to Part 2, which is concerned with all documentation in the possession of the PAS relating to the documents received by the PAS Representative after the Interview, the PAS said it does not create such records. It said it understood that the applicant was seeking access to a copy of his own application form which the Chairperson of the Board advised had been used by the Board to note preparatory questions in advance of the Interview. It said this is a practice the Board engaged in for all candidates assessed. It said it has no information on what these questions noted by the Chairperson or any other Board member on that document may have been. It said the application forms are provided by the PAS in order to facilitate the Board in referencing the candidate’s career history as part of the Interview and that it would not be aware of any specific notes made by the Board on these documents, which are treated as confidential waste once the Interview process has concluded. It said it does not hold a log of when such papers are destroyed as this is a task that recruitment staff would have carried out on a daily basis when Interviews were held on its premises. It said this practice is confirmed in its Records Management Guidelines.
In relation to part 3, which was for details of the total number of competitions in which the Interview Board requested the PAS to approve a pass mark different to the pass mark contained in competition guidelines, the PAS said no such record exists except as part of the Board Report in respect of each competition.
It said the information sought is not extracted from those reports as part of the collection of statistics and there is no database where the information is stored. It said that in order to identify the total number of competitions ran by PAS during 2021 where the pass mark was amended by the Board, PAS would be required to manually search all Interview Board Reports created as part of the 482 competitions advertised in that year. It said those Board reports are not stored on a single database but are held either as a soft copy record on the file directory associated with the Recruitment Team responsible for administrating that competition, or as a paper record in its paper file storage room. In essence, its argument is that it does not hold a record containing the information sought, nor is it required to create a record to respond to the request.
In relation to the searches carried out, the PAS said the Recruitment Unit responsible for overseeing the competition conducted a full search of all records held on its local file system relating to the competition. It said the Recruitment Unit staff do not have access to file directories other than those associated with the competitions they are responsible for administrating, and so it would not be possible for relevant records to be stored elsewhere. It said no specific search terms were used as the PAS does not record such information outside of the Board Report and so no search terms would be applicable for such information. It said a search of the PAS email archive system was carried out to identify all emails sent or received between staff within the Recruitment Team and the members of the Interview Board.
The PAS added that all relevant people, including members of the Recruitment Team, staff who attended the WRC hearings and the members of the Interview Board were contacted in order to identify all relevant records. It said that in line with PAS records management practices, no Board Member would still retain any records relating to this process once the Interviews had concluded as all documentation would have been returned to the PAS Representative at that time.
Applicant submissions
In his submissions to this Office, the applicant said that he had a legitimate expectation that the PAS would have complied with the Code of Practice for Appointment to Positions in the Civil and Public Service issued by the Office of the Commission for Public Service Appointments, which provides that selection and appointment processes should be fully documented, that effective management systems and arrangements (including document management) should be in place, and that all decisions made about the approach adopted in any appointment process should be clear and evident.
Noting the PAS comment that there is no official document which outlines the steps taken where a Board may wish to amend a qualifying mark in advance of the interviews, the applicant said all experienced Recruitment Managers would be aware of the procedures to follow in such situations. He argued that the PAS has established procedures in the area and that these should be disclosed under FOI.
In relation to part 2, the applicant noted that the amended marking sheets were created using Microsoft Word and that the Recruitment Team would have amended to template marking sheet to reflect the new scores. He argued that the metadata underlying those Word documents are records that could prove the veracity of the PAS statements and should be disclosed.
In relation to part 3, the applicant suggested that the PAS could provide a random sample of 20 Board Reports for 2021 to only include detail where the change of pass mark actually occurred, with the redaction of all other non-relevant detail.
My Analysis
It is important to note at the outset that while the purpose of the FOI 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, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. Moreover, if the record sought is not held by the body then that is the end of the matter, regardless of whether or not the requester believes that record ought to exist.
It is also important to note that the Act does not require FOI 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. Section 17(4) provides that where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates and 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, 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 it is entitled to refuse the request under section 15(1)(a).
As I have outlined above, section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The question I must consider in this case, therefore, is whether the PAS has taken all reasonable steps to ascertain the whereabouts of any further relevant records.
In relation to Part 1 of the applicant’s request, I accept the submission of the PAS that it has no documented procedures for occasions where the Board may wish to amend the qualifying mark in advance of interviews. Moreover, the Act does not require the PAS to create such a record now in order to respond to the applicant’s request.
In relation to Part 2, while I note that the applicant’s request was for “all information in the possession of PAS relating to the change of pass mark”, I do not accept that the applicant’s request should reasonably have been interpreted by the PAS as including a request for any relevant metadata held. It is important to note that under section 12(1)(b) of the Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. As I have outlined previously in case OIC-94370, the difficulty with framing a request in the manner of “all records relating to” is that it invariably runs the risk of giving rise to disputes in relation to the scope of the request. The applicant’s request made no specific reference to metatdata, nor do I consider it reasonable to expect that the PAS should have interpreted the request as including such information. In any event, even if it should have, it does not necessarily follow that any metadata held in respect of the marking sheets in this case would automatically qualify as information relating to the change of pass mark. I note that the PAS has indicated that it does not require Units to keep a log of when blank template documents are replaced or destroyed, as there are many reasons such replacements may be required. It seems to me that any relevant metadata in respect of the marking sheets used in this case would simply show that the sheets were amended. It is not apparent to me that such metadata would contain any information concerning the nature of the amendment made.
Finally, in relation to Part 3, having regard to the manner in which Board reports are maintained and stored, I am satisfied that to provide the information sought would require the creation of a new record and that section 17(4) of the Act does not apply. It is not open to me to direct the PAS to provide a sample of the reports as the applicant suggested in his submissions as those records were not sought as part of his request.
In conclusion, therefore, having regard to the explanation provided by the PAS of its records management practices and to the details of the searches undertaken, and in the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that the PAS has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that the PAS was justified in refusing, under section 15(1)(a) of the Act, the applicant’s request for further relevant records on the ground that no further relevant records exist or can be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the PAS to refuse access, under section 15(1)(a) of the Act, to further relevant records, on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
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.
Stephen Rafferty, Senior Investigator