Cinneadh
Mr X and Maynooth University
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-154034-Q0L9N1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-154034-Q0L9N1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the University was justified in refusing access, under sections 35(1) and/or 37(1) of the FOI Act, to candidate CVs and cover letters relating to an employment competition
13 June 2025
The applicant in this case was unsuccessful in his application for appointment to a specified position at the University. On 22 March 2024, he submitted a request for the “CVs and cover letters of the other interview candidates, redacted as necessary”. He also sought redacted copies of all correspondence between panel members regarding all candidates for the position.
On 22 April 2024, the University issued its decision on the request. It refused access to all 13 records it identified as falling within the first part of the request under section 35(1) and section 37(1) of the FOI Act. Of the 8 records it identified as falling within the second part of the request, it released three records in full and five in part with redactions made under section 37(1). It also released seven other competition-related records. On 6 May 2024, the applicant sought an internal review of the University’s decision, following which the University affirmed its original decision.
On 28 November 2024, the applicant applied to this Office for a review of the University’s decision to refuse access to the CVs and cover letters sought. He said he had sought redacted copies of the records and said that when seeking an internal review of the initial refusal, he had submitted redacted versions of his own CV and cover letter to show that an effective redaction could be applied to render the documents anonymous.
This review is concerned solely with whether the University was justified in its decision to refuse access, under sections 35(1) and/or 37(1) of the FOI Act, to the CVs and cover letters of the other competition candidates.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Secondly, in his correspondence with this Office the applicant expressed the view that a conflict of interest arose due to a particular staff member of the University having dealt with his request. It is important to note that this review has been undertaken under section 22(2) of the FOI which is concerned solely with whether the decision taken on the FOI request. Nevertheless, it is relevant to note that the delegation of the decision-making function to any particular staff member is solely a matter for the public body concerned. Moreover, a review by this Office is concerned with whether the decision made has been made in accordance with the provisions of the FOI Act, regardless of which staff member made the decision.
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the applicant. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (i) information relating to the educational history of the individual, (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a) of the Act, i.e. personnel records of staff of FOI bodies.
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 definition does not include his or her name, or information relating to the position, 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 at Paragraph I does not exclude all information relating to staff members. 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. The exclusion does not deprive public servants of the right to privacy generally. I am satisfied that the records at issue in this case are not of a type that are captured by the exclusion to the definition of personal information. A record that has been created by a current staff member of an FOI body as part of an application for appointment to a post within that body is not a record that was created in the course of, and for the purpose of, the performance of his or her functions. I am satisfied that the release of the records at issue in this case would involve the disclosure of personal information relating to individuals other than the applicant.
However, the applicant’s position is that he sought redacted copies of the records and that the release of the redacted records would not involve the disclosure of personal information relating to identifiable individuals. On this point, it is relevant to note that section 18(1) of the Act provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). Put simply, if the University can provide redacted copies of the records sought with all exempt information removed and the redacted copies are not misleading, then it must do so.
It is apparent from the definition of personal information that a record does not have to specifically name a particular individual for the information in the record to comprise personal information relating to that individual. It is sufficient that the individual is identifiable from the information in question. Accordingly, the question I must consider is whether the release of redacted copies of the records at issue would involve the disclosure of personal information relating to identifiable individuals.
In its submissions to this Office, the University said that even with the redaction of personal information of applicants and personal information of referees which is supplied as part of the application, there is significant risk of identifying individuals from their employment/career and education history were one to search sufficiently on the internet or using other means of information access. It said that its HR Recruitment Manager conducted an exercise attempting to reidentify applicants using redacted records and using a job title from an application, was led to a very detailed organisation chart of a particular company that contained job titles and post-holders' names. It referenced a previous decision of this Office in Case OIC-143300 in which we found details relating to the educational history, employment and employment history of individuals to be exempt under section 37(1).
During the course of the review, the applicant provided this Office with a copy of his own CV and cover letter with examples of possible redactions made to his information that would, in his view, allow for similar redactions to be made to the records at issue for release. He said he was looking for “enough information to ascertain whether the candidates for the interview in question had the required level of experience”. I have examined the documents the applicant provided. It seems to me that the redactions he considered to be sufficient fall well short of what would be required to ensure that the release of the redacted documents would not involve the disclosure of personal information about an identifiable individual. For example, I have no doubt that certain of his current work colleagues, and perhaps even former colleagues from past employments, would be in a position to identify him from the redacted versions provided and as such, would be made aware of the personal information that remained visible in the documents.
In any event, it seems to me that the level of redaction that might be required to ensure that all exempt information was redacted would be significant. This Office takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. In any event, it also seems to me that the records would be so heavily redacted as to render the redacted records misleading as they would give a misleading picture of the depth and breadth of information that was considered in the course of the selection process. In conclusion, therefore, I find that the release of the records sought would involve the disclosure of personal information relating to identifiable individuals and that section 37(1) applies to the records. I further find that section 18(1) does not apply in the particular circumstances of this case.
The effect of section 37(1) is that a record whose disclosure would involve the disclosure of third-party personal information cannot be released to another person, unless one of the other relevant provisions of section 37 applies, in this case, section 37(2) or 37(5). Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies to the record 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 am satisfied that subsection (b) does not apply in the circumstances of this case.
On the matter of whether the public interest in granting access to the records at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had 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] 1 I.R. 729, [2011] IESC 26) (‘the Rotunda case’). It is noted that a public interest, “a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law”, should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the records, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner and Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a “sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
In the interests of competition integrity, accountability and transparency, I accept that the disclosure of the employment history and qualifications of applicants for positions within FOI bodies would allow candidates to draw more informed conclusions as to the fairness of the selection processes followed. However, it is relevant to note that the consideration of the CVs would form only part of the selection processes as candidates were also subject to interview and as such, the level of enhanced transparency would, in my view, be quite limited. Moreover, the fact that there may be a public interest in enhancing the transparency of the competition does not mean that there should be no protection of privacy rights of other candidates.
On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution. Unlike other public interest tests provided for in the FOI Act, there is also 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.
Having regard to the personal nature of the records at issue and to the fact that the release of records under FOI is, in effect, release to the world at large, I am aware of no public interest factors in favour of the release of the specific withheld information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply. I find, therefore, that the records at issue are exempt from release under section 37(1) of the Act. In these circumstances, it is not necessary for me to consider the applicability of section 35.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the University to refuse access, under section 37(1) of the Act, to candidate CVs and cover letters for a specified position within the University.
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