Decision
Mr. X and Tusla
From Office of the Information Commissioner (OIC)
Case number: OIC-156961-D8F7K7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156961-D8F7K7
Published on
Whether Tusla was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to a job application made by the applicant on the basis that further records do not exist or cannot be found
6 August 2025
In a request dated 7 November 2024, which was received by Tusla on 30 December 2024, the applicant sought access to all records relating to his application for a position that he applied for in December 2022. In its decision dated 29 January 2025, Tusla granted the applicant’s request with some personal information of other parties redacted under section 37(1) of the FOI Act. On 4 February 2025, the applicant sought an internal review of that decision, stating he believed further records ought to exist as to why he was not shortlisted for interview. On 25 February 2025, Tusla released further records to the applicant. On 26 February 2025, the applicant applied to this Office for a review of Tusla’s decision. The applicant said that nowhere in the records provided to him is it demonstrated why and by whom it was determined that he was not sufficiently competent to be granted an interview.
During the course of this review, the Investigating Officer provided the applicant with details of Tusla’s submissions wherein it outlined the selection process and the searches it undertook to locate the records sought. The applicant was invited to provide submissions in the matter, which he duly did.
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 outlined above and to the submissions made by Tusla and the applicant during this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether Tusla was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant’s application for the position in question, on the basis that no further records exist or can be found.
In his submissions to this Office, the applicant highlighted his concerns and disappointment with the shortlisting process. It is important to note 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)
Section 15(1)(a) of the FOI 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 their decision and 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.
As noted above, Tusla provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them and to the applicant’s response for the purposes of this review.
In its submissions to this Office, Tusla said a selection panel of senior managers assesses a candidate’s application forms against the eligibility criteria to see how their experience and skills match the needs of the post. It said the criteria for the selection exercise are based on the requirements of the post as outlined in the job specification. Tusla said it is therefore very important that candidates provide as much detail relevant to their experience as possible. Tusla said the responsibility to document activities around the recruitment and selection process for campaigns run by Tusla Recruit is with the relevant campaign manager and their team, when appropriate.
Tusla said types of records at issue in this case are the application submitted by the candidate, the eligibility sheet which is a record of the decision issued to the candidate via the candidate portal, any other communication regarding the applicant’s eligibility via the candidate portal, and email communication between the campaign manager and relevant panel members regarding eligibility.
In addition, Tusla said that campaign files are created for the purpose of recruitment and selection for a particular vacancy/ vacancies via a recruitment campaign. It said documentation created for each campaign includes:
• Candidate information pack including job specification
• Eligibility decision sheet
• Interview notes
• Candidate interview scoring sheet
• Candidate declaration
• Board member declaration
• Order of merit sheet
• Do Not Qualified sheet
• File notes (if required)
Tusla said the specific documentation held in the campaign folder for each candidate depends on the stage of the recruitment and selection process the candidate reaches. Tusla said the campaign file is created by a Recruitment Team assigned to run the campaign and stored in the campaign folder on a shared drive. It said there is no paper file created for recruitment campaigns and if any document is created in such form, it is digitized and saved in the campaign folder.
Tusla said it operates under the Data Retention schedule where a campaign folder is kept for a period of 3 years from the end of the campaign or expiry of the panel, whichever is greater.
Tusla said the advertisement and application process are facilitated via the online candidate portal which is used to communicate with candidates regarding the outcome of the eligibility decision, interview invitation, and outcome of the interview. Tusla said the candidate portal is accessible by candidate and
Tusla Recruit staff and that Tusla Recruit is not in a position to delete any documents from the candidate’s profile, but the candidate can do so via settings in their profile. It said candidates can delete their application for the campaign or delete their profile altogether. It said the applicant’s application for the role is still present in the online candidate’s portal.
Tusla said the eligibility decision is reached by the selection panel and the outcome of it is recorded on the eligibility records. Tusla said that, as per the Tusla Recruitment and Selection Policy, once this exercise has been completed those involved should agree on and record a final shortlist of candidates that have been assessed as being competitive on the ‘Eligibility Criteria/Shortlisting Form’ provided. It said all documentation required for this process is saved to the campaign folder and all documentation generated in this process is filed on the competition file for reference.
Tusla said there is no requirement to create any additional records from the eligibility sift. Upon reviewing the campaign folder, Tusla said that there are no additional notes/ records created by Tusla Recruit during the eligibility sift. Tusla also said that the outcome of the eligibility decision was communicated to all candidates who were deemed not eligible without delay. It said there is no record of the applicant contacting Tusla Recruit in connection with this decision, either via the candidate portal or email.
Tusla went on to say there is no record of any additional documentation pertaining to the outcome of the eligibility sift in the campaign folder. It said destruction of campaign records is carried out in accordance with the Tusla policy mentioned above, but records pertaining to this campaign are not in the threshold for destruction yet.
Tusla said it conducted searches of the online candidate portal for the relevant campaign and the documentation retrieved was the Application submitted by the applicant, communication between Tusla Recruit and the candidate including an automatic communication issued at application stage; and the Eligibility message issued by Mr A, who was the campaign manager.
Tusla said it searched the email inbox and outbox of the campaign manager. It said searches were carried out seeking communication with the candidate using the email registered on the candidate’s portal but no communication was found. It said it also searched using the applicant’s name which returned copies of communication with the two selection panel members [Ms B and Ms C]. It said it found the application that was shared with the selection board, the eligibility sheet, and a communication from the selection board confirming the selection decision. It said it searched the inbox and outbox of Ms D, who was also on the recruitment team using the applicant’ email address and name, but did not find any record of communication. It said Ms D had no involvement in this campaign and no other staff in Tusla Recruit were involved in this campaign.
Tusla said it searched the campaign folder saved in the shared drive campaign folder mentioned above. It said the documents saved with the applicant’s information include the eligibility sheet. Tusla also said that Tusla Recruit operates a clean desk policy and any paper documents are digitized immediately and included in the campaign folder in the shared drive. It said no hard copies of any documents pertaining to recruitment campaigns are stored. It also said the physical press used to temporarily secure documents/ correspondence before they are scanned was checked and no documentation in connection with the candidate or the campaign was found.
Tusla said there are no additional notes/ minutes created from the panel deliberation and only the final decisions reached by the panel are recorded. It said the eligibility sift decisions are documented by email exchange between Tusla Recruit and the panel.
As noted above, the applicant was given an opportunity to respond to Tusla’s submissions, and make further submissions of his own, which he duly did. In his submissions, the applicant drew the Investigating Officer’s attention to the eligibility sheet. The applicant noted that his name appears only once and said it appears that some of the eligibility criteria is simply missing from the record. He also expressed his interpretation of the eligibility sheet, which he said contradicts reasons provided to him on why he was not invited to interview.
The eligibility sheet, as provided to the applicant, is a copy of an Excel spreadsheet that appears to have been printed, scanned, and sent to the applicant (with third-party personal information redacted). Admittedly, the way the eligibility sheet was provided to the applicant makes it somewhat difficult to interpret. In light of the applicant’s submissions the Investigating Officer asked Tusla to provide this Office with a full copy of the eligibility sheet. The Investigating Officer also asked that Tusla provide the applicant with a more legible copy of this record. In correspondence with this Office, Tusla said it released a reformatted copy to the applicant on 16 July 2025. In further submissions, the applicant maintains that records relating to the eligibility sift are still being withheld from him and said he has not been provided with any documentation which demonstrates where, how and by whom it was determined that he had failed to meet the eligibility criteria.
In response to further queries from this Office, Tusla said that searches were completed with interview panel members’ email inboxes by using the recruitment campaign reference number and no additional documents other than those provided were located. Tusla said it is normal practice that there would be no internal exchanges via email with regard to the eligibility process undertaken. It said discussion and finalisation are undertaken via a one meeting process to determine eligibility. Tusla said it is satisfied that all relevant searches have been undertaken, and all relevant documentation has been provided.
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 arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records.
Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist. In essence, it is Tusla’s position that the applicant has been provided with a copy of the selection panel’s decision which recorded he was not deemed eligible for interview. While I acknowledge that the applicant’s disputes Tusla’s position and considers further records ought to exist, having regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that Tusla has demonstrated that it has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no further records exist. In the circumstances, while I appreciate the applicant will be disappointed by my decision, I find that Tusla was justified in refusing access to further records relating to the applicant’s 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.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Tusla’s decision to refuse access to further relevant records under section 15(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.
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Richard Crowley
Investigator