Decision
Mr X and Limerick City and County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-142389-V5N6Q9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142389-V5N6Q9
Published on
Whether the Council was justified, under sections 15(1)(a) and 37(1) of the FOI Act, in refusing access to further records relating to complaints made by the applicant and in relation to the interview process for a post which the applicant had applied for, on the basis that records containing the information sought do not exist or cannot be found and on the basis that certain information sought contains the personal information of other individuals
13 May 2024
The applicant in this case was an unsuccessful candidate for a position in the Council. In a request dated 13 June 2023, the applicant sought access to various records and correspondence held by the Chief Executive’s Office and the HR Department of the Council in relation to formal complaints and appeals made by the applicant regarding his career and the interview he attended for a position in the Council. As part of his request, the applicant sought the following information relating to the interview process he underwent:
1. How many applied?
2. How many were interviewed?
3. How many were asked to attend at a different time?
4. What was the gender breakdown v overall result/result under the four headings: (i)Strategic Management and Change (ii) Delivering Results (iii) Performance Through People and (iv) Personal Effectiveness?
5. What was the age breakdown v overall result/result under the same headings at no. 4 above?
6. What was the gender/age breakdown v overall result/result under the same headings at no. 4 above?
7. Copies of the interviewers’ notes for all the candidates who did not qualify in one or more of the competencies (with their identity redacted).
8. How many were deemed to be qualified?
9. How many were deemed to be not qualified?
10. All notes and details relating to the preparation and authorship of the Brief for the competition.
In a decision dated 10 July 2023, the Council part granted the applicant’s request. It released a number of records held by the Chief Executive’s Office. The Council provided the applicant with answers to questions 1, 2, 8 and 9 of his request. In relation to question 3, it informed the applicant that “it is regular for candidates to be asked to change time if there is a cancellation so that gaps in the schedule are minimised.” It refused parts 4-7 under section 37 of the Act. On the matter of part 10, it said “the briefing document for the competition is based on the briefing document used by the Public Appointments Service for this competition nationally.” It provided the applicant with a copy of the briefing document and informed the applicant that “the qualifications are also national declared ones”. The Council also informed the applicant that its HR Department was processing his appeal in relation to the interview and that a response would issue from the HR Department directly.
On 2 August 2023, the applicant sought an internal review of the Council’s decision. He argued that he did not get a proper, full reply to question 3. He sought a review of the Council’s decision on parts 4-7. In relation to part 10, he asked the Council to confirm whether any notes or details exist, along with a full and proper answer to his question. The applicant also said that the Council’s response did not include two letters, which he sent to the Chief Executive on 9 June 2023 and 13 June 2023 respectively.
On 22 August 2023, the Council affirmed its original decision under section 37 of the Act. The Council also relied on section 15(1)(a) of the Act on the ground that it does not hold the information sought in the applicant’s request for an internal review. The Council said that it is not obliged to create a record where one does not exist. On 13 September 2023, the applicant applied to this Office for a review of the Council’s decision.
During the course of this review, the Investigating Officer provided the applicant with details of the Council’s submission setting out the searches carried out and its reason for refusing the remaining parts of his request. The applicant was invited to make submissions which he duly did. He did not accept that the Council could not find his letters to the CEO dated 9 June 2023 and 13 June 2023. He also argued that the Council ought to extract the information he requested about the interview process from the records it holds. The Council subsequently located an email dated 9 June 2023 which the applicant had sent to the CEO and released it to him. The Council said it was unable to locate a letter from the applicant to the CEO dated 13 June 2023.
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 referred to above, including the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
The applicant contends that the Council should be able to provide him with the information he requested about the interview process at parts 3-6 and part 10 of his request. The applicant is also seeking a copy of his letter dated 13 June 2023 to the CEO. The Council’s position is that it has taken all reasonable steps to locate any relevant records and that it is not required to create records where none exist. This is, in essence, a refusal to grant access to further relevant records under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
The applicant is also seeking a review of the Council’s decision to refuse him copies of the interview notes of candidates who did not qualify in one or more of the competencies assessed at interview, which the Council refused under section 37 of the Act.
Accordingly, this review is concerned solely with whether the Council was justified in refusing access to further relevant records under section 15(1)(a) of the Act and whether it was justified in refusing access to information relating to other candidates under section 37 of the Act.
It is important to clarify that 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.
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 role of this Office 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
Applicant’s Letters to the CEO
As noted above, the applicant said that he had sent two letters to the Council’s CEO, on 9 June 2023 and 13 June 2023 respectively. I understand that the applicant had initially informed the Council that both letters were sent by post, and that its original searches were based on this information. During the course of this review, the applicant clarified that the correspondence of 9 June was an email sent to the Council’s Chief Executive. As noted above, a copy of this email was subsequently located by the Council and was released to the applicant. In his submissions to this Office, the applicant said that the letter dated 13 June 2023 “may have been delivered by hand” and he referred to two staff members with whom, he stated, had contact with in this regard.
In its submissions to this Office, the Council said that post for the Chief Executive comes to the CE Office unopened. It said that the staff of the CE office open the post, date stamp it and scan it into a SharePoint folder within the CE Office Filing system. The Council said that electronic searches of the post folder were carried out using searches of the applicant’s name. It said a visual search of the scanned post folder was also carried out. The Council said that email searches were carried out using the applicant’s name. It said original letters received by post are kept on file in the CE office and this file was also searched. The Council said that emails to and from HR were also searched as a letter of this nature would be referred to HR for comment before response would issue from CE office. The Council said that no correspondence was found other that the correspondence provided to the applicant.
In regard to the two named staff members referred to by the applicant, the Council said that neither can recollect the applicant handing them a letter. It said that when letters are handed in at reception for the Chief Executive, they would normally call up to the CE office to ensure receipt. Alternatively, such letters would go to the CE office in the post folder. The Council said there is no record of it ever having received correspondence from the requestor on the 13 June 2023. The Council said that if the applicant wishes to resubmit his letter of 13 June 2023 to the CE office, a response can be arranged.
Having consider the submissions from both parties in this regard, I am satisfied the Council has taken all reasonable steps to locate the letter in question. I find, therefore, that section 15(1)(a) of the Act applies on the basis that the Council cannot find the letter of 13 June 2023 after all reasonable steps to ascertain its whereabouts have been taken.
Parts 3-6 of the applicant’s request
The applicant contends that the Council should be able to provide him with the information about the interview process which he requested at parts 3-6 of his request, namely how many candidates were asked to attend interview at a different time to their scheduled interview time and various statistical information about the age and gender profile of candidates.
It is 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 one or more 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. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. 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. Section 17(4) defines reasonable steps as steps 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.
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, it is entitled to refuse the request under section 15(1)(a) on the ground that the record sought does not exist. The question I must consider in this case, therefore, is whether the Council was justified in finding that it does not hold records containing the specific information sought and/or that it cannot search for and extract the information from electronically held records by taking reasonable steps.
The substantive issue arising, therefore, is whether in fact such a record exists, or whether the Council must provide the information sought pursuant to section 17(4). The applicant has not argued that a precise record that contains the information he is seeking exists. Rather, his primary argument seems to be that the Council can compile the information sought. The question I must consider is whether it must do so pursuant to section 17(4) of the FOI Act.
Changes to Interview Times
The applicant asked how many applicants were asked to attend interview at a different time. In its original decision, the Council informed the applicant that "it is regular for candidates to be asked to change time if there is a cancellation so that gaps in the schedule are minimised". In its submissions to this Office, the Council said that it does not hold a record that would give an answer to this question. It said that staff in its HR Department advised that sometimes this would be done by way of a phone call to the applicant to ask them if they were available at a different time. The Council said that a separate schedule was prepared for each day of interview and that last minute changes would have been made by writing on the printed schedule which would then have been provided to the Interview Board. The Council said that in order to answer this question HR staff would have to search emails to see if any applicants withdrew their applications and then check times originally given to applicants against times they attended on the day to see if there were any changes.
On the basis of the information before me, I am satisfied that the Council does not hold a record containing the number of applicant’s that were asked to attend interview at a different time. Furthermore, I am satisfied that in order to provide this information it would be necessary to extract this data manually, which is not required under the FOI Act. I am satisfied that section 17(4) of the Act does not apply to the information sought here and that the Council was justified in refusing part 3 of the applicant’s request under section 15(1)(a) of the Act.
Gender and Age Data of Candidates
In its original decision on the applicant’s request, the Council refused parts 4-6 of his request under section 37 of the Act on the basis that this is personal information of other candidates and its release may identify the other candidates.
In its submissions to this Office the Council said that its HR Department does not hold any standalone records containing the information requested by the applicant in his questions at parts 4-6 of his request. The Council said that this gender/age information is contained within each individual application received from candidates. The Council said that candidate application forms are scanned and held in PDF format. It said it does not have any way of extracting data from the PDF forms. The Council said that a member of staff would have to examine each application and create a spreadsheet to compile the answers.
In his submissions to this Office, the applicant said there are software packages that can be used to extract information from PDF documents and thus enable the text contained in the PDF document to be copied and pasted into a new record. He also queried whether the Council could photocopy or redact the records in question to provide the information he requested.
The essential purpose of section 17(4) is to ensure that an FOI body cannot refuse a request for information that is contained within a number of electronically held records based solely on an argument that the extracted output would comprise a new record and that the Act does not require the creation of a new record. However, it seems to me that for the section to apply, the requisite information sought must be contained within the relevant records such that it can be searched for and extracted by using a pre-existing electronic search and extraction facility. 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. While there may be software available to edit PDF documents, it seems to me that the Council would still be required to manually identify the relevant information from each candidate’s application form and to create a new record in order to respond to the applicant’s questions about the age and gender profile of candidates.
I have no reason to doubt the submissions of the Council that a records containing the gender/age profile information sought by the applicant does not exist and I am satisfied that section 17(4) of the Act does not apply in this case. In the circumstances, I find that the Council was justified in refusing the applicant’s request in regard to parts 4-6 of his request under section 15(1)(a) of the Act on the basis that no such records exist.
Part 10 of the applicant’s request – Briefing for the Interview Board
At part 10 of his request, the applicant sought “All notes and details relating to the preparation and authorship of the Brief for the competition”. In its original decision on his request, the Council released the briefing document it used for the competition. In its submissions to this Office, the Council said its HR department confirmed that it does not hold further records in relation to this. It said the briefing document is based on the template used by the Public Appointments Service (PAS) and that this document would be edited to incorporate references to Limerick City and County Council.
Having considered the information before this Office in this case and in the absence of evidence to suggest that further searches should have been undertaken, I am satisfied that the Council has undertaken all reasonable steps to locate the records sought by the applicant. While I appreciate that the applicant will be disappointed by my decision, I find the Council was justified in refusing access to further records relating his request, under section 15(1)(a) of the FOI Act, on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 37 of the Act – personal information
The applicant sought, at part 7 of his request, “copies of the interviewers’ notes for all the candidates who did not qualify in one or more of the competencies (with their identity redacted)”. The Council refused access to these records under section 37(1) of the Act as these records contain personal information relating to other candidates. In its submissions to this Office, the Council noted that the applicant was provided with a copy of his own interview notes.
Section 37(1) of the Act provides that, subject to the other provision of the section, an FOI body shall refuse a request if access to the record(s) concerned would involve the disclosure of personal information.
Section 2 of the Act defines "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 also provides that, without prejudice to the generality of the above definition, personal information includes 14 specific categories of information, including (iii) information relating to the employment or employment history of the individual.
I am satisfied that the interview notes of other candidates comprise personal information relating to individuals other than the applicant and I find that section 37(1) applies. I am also satisfied that release of the interview notes of other candidates even with their identity redacted would still involve the disclosure of personal information, particularly given the small number of candidates “who did not qualify”.
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. I am satisfied that none of those circumstances apply 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 request would benefit the person to whom the information relates. I have no reason to consider that section 37(5)(b) applies.
In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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 relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest. It is also 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.
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. 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.
I accept there is a public interest in openness and transparency in relation to how FOI bodies carry out their functions, including how FOI bodies carry out their recruitment and selection processes. However, in my view, release of interview notes of the candidates who did not qualify would provide very limited insight, if any, into the selection process in question. Having carefully considered the matter, I am not satisfied that any public interest in releasing those interview notes outweighs the right to privacy of the third party individuals concerned. Accordingly, I find that section 37(5)(a) does not apply.
Consequently, I find that the Council was justified, under section 37(1) of the Act, in refusing access to the interview notes of the candidates who did not qualify.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was justified in refusing access to records relating to parts 3-6 and part 10 of the applicant’s request under section 15(1)(a) of the Act. I also affirm the Council’s decision to refuse access to the interview notes of other candidates under section 37(1) of the 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.
Richard Crowley
Investigator