Decision
Mr X and University College Dublin
From Office of the Information Commissioner (OIC)
Case number: OIC-143287-P4D5V4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143287-P4D5V4
Published on
Whether UCD was justified, under section 15(1)(a) of the Act, in refusing the applicant a detailed evaluation report relating to his application for the position of Lecturer/Assistant Professor (Ad Astra Fellow) on the basis that the record sought does not exist or cannot be found
5 March 2024
The applicant was a candidate for a position of Ad Astra Fellow (Lecturer/Assistant Professor) with UCD. He was not shortlisted for interview after his application was assessed by the selection board.
On 4 August 2023, the applicant requested a detailed evaluation of his application for the position of Ad Astra Fellow. The applicant asked for “the detailed evaluation report that reflects my scores (not the scores themselves)”. In a decision dated 17 August 2023, UCD granted the applicant’s request and released a copy of his scoresheet. On 24 August 2023 the applicant requested an internal review of UCD’s decision. The applicant said he received a scoresheet which represented scores assigned to the evaluation criteria required to become an Ad Astra Fellow. He said a detailed evaluation of his application will normally reflect and justify these scores and that he had not received this document.
On 4 October 2023, UCD affirmed its original decision and also provided the applicant with the minimum score achieved by those candidates who were shortlisted. UCD stated that a detailed evaluation sought by the applicant does not exist as it was never created. UCD said that “when an applicant is not shortlisted the candidate feedback section of the scoresheet is completed to reflect the reasons for the board members’ decision. There is no requirement to prepare a separate evaluation report and the Chair of the Board of Assessors confirmed they did not do so.” On 21 October 2023, the applicant applied to this Office for a review of UCD’s decision.
During the course of this review, the Investigating Officer provided the applicant with details of UCD’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to his request exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which he duly did. The Investigating Officer subsequently sought and received further clarification from UCD in regards to the applicant’s comments.
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, including the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether UCD was justified, under section 15(1)(a) of the FOI Act, in refusing access to the detailed evaluation report sought by the applicant on the basis that the record sought does not exist or cannot be found.
The applicant has highlighted concerns he has about the recruitment and selection process for the post he applied for and about UCD’s compliance with its recruitment and selection policy. 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) 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 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 is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist. It is also worth noting that the Act does not require FOI bodies to create records if none exist, apart from a specific requirement under section 17(4) of the Act, which is not relevant in this case, to extract records or existing information held on electronic devices.
As I have outline above, UCD provided this Office with submissions detailing its reasons for concluding that no further record exists or can be found relating to the applicant’s application for the position of Ad Astra Fellow, details of which were provided to the applicant. Essentially UCD said that no further record of a detailed evaluation report exists as it was never created. UCD stated that there was “no requirement to create such a record at the shortlisting stage and the assessment board confirmed that they did not do so.”
In its submissions to this Office, UCD said that 67 applications were received by it for the position in question. UCD said that all documents including a definitive selection scoresheet was made available to the Head of School (HOS), who was the chairperson of the assessment board. It said that in accordance with section 10.1. of the University’s Recruitment and Selection Policy, a zoom meeting was held by the assessment board to assess all applications. Following a review of the applications, the board agreed and recorded five candidates for shortlisting. The Chairperson (HOS in this instance) completed the definitive selection scoresheet to verify and record the Board’s decisions. UCD said that feedback commentary for all candidates who had not been shortlisted was recorded in the comments section on the scoresheet briefly explaining the reasons for not shortlisting. It said that Board members did not make individual written reports bar one member who made a short note for their own reference. UCD said that this note was provided to the applicant in response to a Data Subject Access Request.
UCD said that in accordance with 10.2 of the Recruitment and Selection Policy, UCD HR notified the applicant that he was unsuccessful in his application and subsequently provided him with a copy of his Assessment Scoresheet. UCD said that the applicant also contacted the Head of School directly by email. UCD said that the Head of School, in order to offer support to the applicant, shared his own personal feedback on his application but stressed that the thoughts he shared were explicitly not intended to reflect the deliberations of the committee.
In regard to the searches it carried out to locate the record sought by the applicant, UCD said its HR Department and the assessment board were contacted on receipt of the applicant’s FOI request. It said it quickly emerged that the record the applicant was requesting did not exist, as it was never created and nor was there any obligation on the Board to create the requested record. UCD said the HOS confirmed that no detailed feedback report existed. UCD said its Recruitment and Selection policy is quite clear on the shortlisting process and at no time is there a requirement or obligation for panel members to provide feedback reports for all applications. UCD stated that in 2023 there were over 1100 applications under the Ad Astra scheme. It said it would be an onerous task to provide detailed evaluation reports for all candidates who did not proceed beyond shortlisting stage. UCD said its Recruitment and Selection Policy only requires that the Board should enter 2-3 lines in the comments section of the candidate scoresheet, on candidates who have not been shortlisted explaining the reason for any candidate who has not been shortlisted based on the "Candidate scoresheet" criteria.
UCD said that both the current and previous HOS conducted searches of their records. It said they also asked the board members and the School Manager to conduct searches. UCD said that the applicant has an expectation that UCD should provide him with a report of additional feedback, but the candidate scoresheet and the note recorded by one of the panel members are the only records created during the shortlisting stage and the only records that exist. It said, both records have been provided to the applicant and as he did not progress to interview stage, no further records were created.
In his submissions to this Office the applicant said he believes that an evaluation existed but that UCD does not wish to provide it. He also said that if an evaluation was not created this was done on purpose. The applicant also raised questions about UCD’s compliance with its Recruitment and Selection policy, quoting section 11.5 in of the policy, which says "The selection decision and any supporting evidence must be documented. Scoresheets should comment on the relative merit of recommended applicant(s) on the basis of the selection criteria only. Clear and detailed documentation including qualitative feedback should be agreed by all board members on the scoresheet which will assist if post-interview feedback is requested and/or if an appeal is lodged." The applicant contends that this means that an evaluation should exist throughout the hiring process, both before and after shortlisting and interview stages.
In response to queries from this Office, UCD said that section 11.5 is a sub-section of section 11 of the policy. It said that Section 11 refers solely to the interview process and documentation of the interview decision. UCD said it does not cover documentation of the selection process, which can be found at section 10.2 of the policy. UCD said that interview documentation differs to selection documentation as per section 10 of the policy. It said, in accordance with section 10.2 of the Policy, the Chairperson (HOS in this instance) completed the scoresheet to verify and record the Board’s decisions. Feedback commentary for all candidates who had not been shortlisted was recorded in the comments section of the scoresheet briefly explaining the reasons for not shortlisting. This feedback, by way of the scoresheet was provided to the applicant. UCD said that when contacted by UCD HR, the School confirmed that it did not wish to provide further feedback, other than what was officially recorded on the scoresheet. UCD said that this was the correct procedure in accordance with the policy and it would be an onerous task if the college were to provide detailed evaluation reports outside of the policy for all candidates who did not proceed beyond shortlisting stage.
On the matter of whether UCD holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question I must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. FOI bodies are not required to search indefinitely for records in response to an FOI request. 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 more records should or might exist, or rejects an FOI Body’s explanation of why a record does not exist or cannot be found.
Having considered the submissions before me in this case, and in the absence of any evidence to suggest otherwise, I accept UCD’s position that no detailed evaluation report was created. I am satisfied that UCD has taken all reasonable steps to locate the record sought by the applicant. Accordingly, I find that the UCD was justified in refusing the applicant’s request for a detailed evaluation report, under section 15(1)(a) of the FOI Act, on the grounds that no such record exists or can be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCD’s decision, under section 15(1)(a) of the FOI Act, to refuse the applicant’s FOI request.
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