Cinneadh
Dr. X & The Health Service Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153551-P0G1M7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-153551-P0G1M7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing access to records relating to a Grade VII Statistician recruitment campaign on the basis of sections 15, 30 and 37 of the FOI Act
29 October 2025
The applicant in this case is a staff member of the HSE. He unsuccessfully took part in a competition for a position as Grade VII Statistician within the HSE which was referred to as the NRS12377 competition.
On 6 March 2024 the applicant sought access to the following:
1. The document entitled ‘Interview Guidelines for NRS12377, Grade VII Statistician, Health Pricing Office, HSE’ which the applicant had previously sought under FOI request 2023.FOI.054;
2. With respect to [Position A] and [Position B]:
a. The post-holder’s gender
b. The post-holder’s age range (i.e. 25-29, 30-34, 35-39, 40-45 …)
c. The post-holder’s nationality (i.e. Irish/non-Irish, EU/non-EU);
d. The start date of the post-holder;
3. The advertisement for [Position A] as well as information relating to the campaign for this position including whether the position was filled through competition/recruitment, either internal or external;
4. The complete list of duties and responsibilities of the chair of an interview panel in the HSE;
5. Communication between CPL and the interview panel in relation to the use of the competency ‘Planning and Managing Resources’ per the job specification.
On 2 April 2024 the HSE issued its decision to the applicant. With regard to Part 1 of the applicant’s request, the decision-maker refused access to the requested record on the basis of section 15(1)(g) relating to frivolous/vexatious requests, with the decision-maker indicating that this record had been part-granted to the applicant as part of a previous FOI request 2023.FOI.054. With regard to Part 2 of the applicant’s request, the relevant information was refused on the basis of section 37 relating to personal information. With regard to Part 3 of the applicant’s request, one record falling within the scope of this part of his request was granted to the applicant. With regard to Part 4 of the applicant’s request, the decision-maker refused access to the requested record on the basis of section 15(1)(g) relating to frivolous/vexatious requests, with the decision-maker indicating that this record had been part-granted to the applicant as part of the previous FOI request 2023.FOI.054. Finally, with regard to Part 5 of the applicant’s request, the relevant information was refused on the basis of section 37 relating to joint personal information.
On 26 April 2024 the applicant sought an internal review of this decision and on 20 May 2024 the internal reviewer affirmed the original decision.
On 11 November 2024, the applicant applied to this Office for a review of the HSE’s decision.
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 applicant’s comments in his application for review and to the submissions made by the HSE in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In the course of my review, I sought further information from the HSE with regard to Part 1 of the applicant’s request for Interview Guidelines for NRS12377, Grade VII Statistician, Health Pricing Office. As set out above, the HSE had refused access to this part of the applicant’s request on basis of section 15(1)(g) relating to frivolous/vexatious requests, with the decision-maker indicating that this record had been part-granted to the applicant as part of a previous FOI request numbered 2023.FOI.054. In the course of its submissions, the HSE indicated clarified that in request 2023.FOI.054, parts of this record were refused on the basis of section 30(1)(a). In addition, in its submissions in the current case, the HSE indicated that it also considers that section 30(1)(b) would apply to the refused information in this record. As the applicant had not previously been put on notice with respect to this provision, I provided him with an opportunity to comment on the applicability of this provision to the refused parts of the Interview Guidelines in the course of this review. Therefore, in the circumstances of this case, I consider it appropriate to consider the applicability of sections 30(1)(a) and 30(1)(b) to the refused parts of the Interview Guidelines which were part-granted to the applicant as part of FOI request 2023.FOI.054.
In addition, in the course of its engagements with this Office the HSE said that with regard to records falling within the scope of Part 4 of the applicant’s request; namely, a list of duties and responsibilities of the chair of the interview panel, that in addition to relying on section 15(1)(g) to refuse access to this record, it was also seeking to rely on section 15(1)(i)(i). This provision allows a public body to refuse access to a record on the basis that the record is available to the requester concerned. Once again, as the applicant had not previously been aware of the reliance by the HSE on this provision in this matter, I provided the applicant with an opportunity to comment thereon.
Finally, I also sought further clarifications from the applicant with regard to Part 5 of his request, which sought access to the following:
‘The CPL/HSE response (dated 23/08/2022) to my Formal Appeal to the outcome of the interview stated; ‘The Recruitment Specialist confirmed board members were instructed to utilise the competency ‘Planning and Managing Resources’ per the Job Specification. Please provide with any sort of documentation that shows such communication between CPL and the interview panel. In the case that such communication was made visa email, I would like to see the original email on the mailbox of either sender or receiver of such email’
The HSE has identified a screenshot of a mailbox containing eight emails which followed a search for the following terms ‘NRS12377 shortlisting decisions’. I sought further confirmation from the applicant about the information which he was seeking in Part 5 of his request. In response, the applicant said that he considers the information provided to be ‘irrelevant’ and said that he was seeking ‘particular correspondence between CPL and the HSE with a particular topic and content, not just random emails’. The applicant further said that ‘if such correspondence exists, I request a copy, otherwise the FOI body must clearly admit that such correspondence does not exist’.
I have carefully considered the wording of Part 5 of the applicant’s request and have reviewed the record provided in relation to this aspect of his request. I have also reviewed the request for internal review submitted by the applicant wherein he addresses this part of his request. Having done so, I am satisfied that the clear thrust of Part 5 of the applicant’s request is not to seek access to the substantive communications themselves but rather to be provided in some manner with evidence of any such emails in the mailbox of the sender or recipient. I am therefore satisfied that that part of the screenshot provided to this Office comprising the sequence of emails in the mailbox only falls within the scope of Part 5 of the applicant’s request. If, however I am mistaken in this, it remains open to the applicant to submit a further request to the HSE seeking access to the substantive emails contained on the mailbox screenshot.
The review is solely therefore concerned with whether the HSE was justified in refusing access to the relevant records on the basis of sections 15(1)(g), 15(1)(i)(i), 30(1)(a), 30(1)(b), 37(1) and 37(7) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, as has previously been explained to the applicant, 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.
Secondly, 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.
Thirdly, section 18(1) of the FOI 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 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). This Office considers neither the definition of a record under section 2 of the Act, 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.
Finally, it is important to note that a review by this Office is considered to be ‘de novo’ which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the ‘de novo’ nature of our reviews, I consider it appropriate to consider the applicability of additional exemptions, notwithstanding the fact that the provisions were not initially relied upon as a ground for refusing access to records in the HSE’s decision on this specific request.
Section 15(1)(i)(i)
As set out above, in the course of its submissions to this Office, the HSE indicated that it was for the first time seeking to rely on section 15(1)(i)(i) to refuse access to records falling within the scope of Part 4 of the applicant’s request. This provision allows a public body to refuse access to a record on the basis that the record is available to the requester concerned.
The HSE said that it considered that six documents and resources contain elements of various duties and responsibilities of a chairperson of an interview panel in the HSE falling within Part 4 of the applicant’s request, namely:
1. Face to Face Interview Guidelines – Interview Board Covid 19 (page 65)
2. NRS12377 – Confidential Interview Guidelines (pages 19-42)
3. NRS12377 – Completed GDPR Checklist (Chairperson) (Page 60)
4. NRS12377 – Confirmation of Return of Docs – Chairperson email thread (Pages 69-70)
5. NRS12377 – Interview Board Pack – email 28/06/2022 (Pages 66-68)
6. HSE online training (Recruitment Interviewer Skills)
The HSE informed this Office that the page numbers of records 1-5 listed above correspond to records released to the applicant as part of FOI request 2023.FOI.054. In addition, the HSE further indicated that in relation to point 6, on 2 April 2024 it provided a link to the HSELand online learning and development portal to the applicant. It said that as the applicant is a HSE employee who has access to the HSELand learning and development portal, he was in a position to access the online training module. The HSE also indicated that it had provided information on how to create a profile on HSELand to the applicant.
In sum, the HSE said that it is satisfied that the applicant is in possession of all records falling with the scope of Part 4 of his request and that section 15(1)(i)(i) applies to these records.
In light of this, on 18 September 2025 I contacted the applicant to see if he was indeed in possession of the records referred to above and if, in such circumstances, I could exclude them from the scope of my review. By response dated 2 October 2025 the applicant made a number of comments. The applicant said that he was seeking a ‘single-page HSE-headed paper document with the title of Role of the Chairperson’. He accepted that he had been provided with several documents but he was seeking one document as outlined above. The applicant also disagreed with the HSE instruction to him to access the HSELand portal saying that the FOI Act ‘does not allow the FOI body to refer the requester to a website’. However, in the course of his submissions to this Office, the applicant provided a screenshot of the HSELand portal which stated that the applicant had enrolled on the ‘Recruitment Interviewer Skills’ programme.
I have carefully considered whether, by virtue of the release of records to the applicant as part of FOI request 2023.FOI.054 combined with the proven ability of the applicant to access the Recruitment Interviewer Skills programme, it has been satisfactorily demonstrated that the applicant has access to the six records falling with Part 4 of his request. I consider it important to recall that at no point in his submissions to this Office did the applicant indicate that he was not in possession of the records at issue. In the circumstances, and in light of the explanations provided by the HSE, I have no reason to question its assertions that records 1-5 as outlined above have previously been provided to the applicant as part of a separate FOI request. In addition, I am satisfied that the applicant has clearly shown to this Office that he is in a position to access the sixth record referred to above. In the circumstances, I am satisfied that the HSE was justified in relying on section 15(1)(i)(i) to refuse access to records falling with the scope of Part 4 of the applicant’s request on the basis that these records are already available to the applicant.
As I have found section 15(1)(i)(i) to apply to records falling with the scope of Part 4 of the applicant’s request, I am satisfied that I do not need to consider the applicability of any other provision of the FOI Act to these records.
As set out above, the HSE has sought to rely on section 15(1)(g) to refuse access to records falling within the scope of Part 1 of the applicant’s request.
Section 15(1)(g) provides that an FOI body may refuse to grant a request where it considers that the request is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requester or from different requesters who, in the opinion of the head, appear to have made the requests acting in concert.
The section identifies three characteristics of a request that may lead to a decision to refuse a request; they are that the request is frivolous or is vexatious or forms part of a pattern of manifestly unreasonable requests. Any one of the three separate characteristics may, of itself, provide the basis for a refusal of a request. It is not necessary, for example, for the request to be both frivolous ‘and’ vexatious. Nevertheless, while they are three separate characteristics, they may also overlap. Therefore, what is frivolous may also be vexatious, and what is frivolous and/or vexatious may form part of a pattern of manifestly unreasonable requests.
This Office has previously identified a number of non-exhaustive factors as relevant in assessing whether a request may be categorised as frivolous or vexatious and we consider that they are equally relevant in determining whether there is evidence of a pattern of manifestly unreasonable requests. The factors include:
• the number of requests made - are they considered excessive by reasonable standards?
• the nature and scope of the requests - are they excessively broad and varied in scope or unusually detailed?
• the purpose of the requests, e.g. have they been made for their "nuisance value"; are they made without reasonable or legitimate grounds; and/or are they intended to accomplish some objective unrelated to the access process?
• the intent of the requester - is the requester's aim to harass the public body?
When considering whether a request forms part of a pattern of manifestly unreasonable requests, it seems to me that the question I must consider is not whether each request, of itself, is manifestly unreasonable. Rather, I believe that the appropriate approach to take is to consider whether the requests, when considered together, form a pattern of manifestly unreasonable requests such that any request forming part of that pattern may be refused under section 15(1)(g).
As noted above, the list of relevant factors is non-exhaustive. Moreover, it is not necessary for all of the above factors to be present before a request can be refused under section 15(1)(g). In the context of this particular case, it is also very important to note that this Office considers that it is appropriate to consider the request concerned in the context of other requests made to the FOI body and/or in the context of the requester’s other dealings with the FOI body concerned. On that latter point, I note that in Kelly v the Information Commissioner [2014] IEHC 479 (the Kelly case), the High Court found that this Office was not confined to considering the specific request and that it was entitled to consider the wider context in which the request was made. This view was endorsed by the Court of Appeal in Grange v the Information Commissioner [2022] IECA 153, which found that this Office was “entitled to take into account the history of dealings between the appellant and the Department and the previous FOI requests insofar as they were relevant to the appellant’s grievance, as well as the context of the FOI requests in question”.
It is also important to note that while section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the making of a request, motive can be relevant when considering the application of section 15(1)(g). In the Kelly case, the High Court found that in determining whether a particular application should be described as vexatious, the Information Commissioner is entitled by statute to use his discretion. It found that “there is no obligation on the Commissioner to prove the applicant’s state of mind, and inferences may be drawn on a common sense basis from a pattern of conduct”.
HSE’s submissions
In its submissions to this Office, the HSE said it considers Part 1 of the applicant’s request to be frivolous and/or vexatious on the basis that the applicant previously submitted a separate FOI request, numbered FOI.2023.54, and as part of that request sought access to the ‘Interview package provided to the interview panel members for this post’. The HSE said that the interview guidelines for NRS12377 were part of the records which formed the interview package provided to the interview panel members.
The HSE said that the current request from the applicant, numbered FOI.2024.006, stated the following with respect to the interview guidelines for NRS12377:
‘[this record] was provided in response to my FOI request 2025.FOI.054, in page 31 to 55 of your response. While I appreciate the confidentiality of this document, the title of the ‘competency areas’ listed in this document for the purpose of interview are not confidential. I therefore request this document with the clear and unhidden titles of ‘competency areas’ listed. If easier, you could copy-paste the list of ‘competency areas’ to your response, without attaching a new scanned document. Please be aware that the term used in the above document might be a bit different though, such as ‘question areas’ or similar ’.
The HSE further said that in its decision letter with respect to request 2023.FOI.054 that it had provided details to the applicant as to how he could seek an internal review if he was unhappy with the decision. The HSE said that the applicant did not exercise his right to seek an internal review in this matter and instead submitted a further FOI request on 6 March 2024; comprising the request currently at issue, ‘for access to the same records’. The HSE said that in failing to submit a request for an internal review of the decision in 2023.FOI.054 and instead choosing to submit the current request seeking ‘the clear and unhidden titles of ‘competency areas’ ’, the applicant ‘appeared to demonstrate his intent in gaining access to the record regardless of the prior decision of the HSE’.
The HSE also provided details of the number of requests made by the applicant. It said that the HR Shared Services Office received a total of eight requests from the applicant between the period of 10 March 2023 and 22 August 2024. It said that seven of these requests related to the post of Grade VII Statistician in the Health Pricing Office. It provided details of each of these requests to this Office which can be summarised as follows:
| Reference No.: | Date of request: | Scope of request: | |||
| 2023.FOI.009 | 10 March 2023 | Correspondence in relation to the applicant’s salary determination | |||
| 2023.FOI.045 | 23 October 2023 | Interview notes relating to competition NRS12377 | |||
| 2023.FOI.053 | 15 December 2023 | Job Order Form for all positions entitled ‘Statistician and/or Statistical Analyst in Grade VII issued and hired during May-October 2022 | |||
| 2023.FOI.054 | 22 December 2023 | Marking sheets/interview package for competition NRS12377 | |||
| 2024.FOI.001 | 8 January 2024 | Interview results for competition NRS12377 | |||
| 2024.FOI.006 | 6 March 2024 | Interview guidelines relating to competition NRS12377 | |||
| 2024.FOI.016 | 3 May 2024 | Information relating to other applicants for competition NRS12377 | |||
| 2024.FOI.022 | 22 August 2024 | Request was transferred to National HR |
In sum, the HSE said that the purpose of the applicant in submitting the above FOI requests is that he is dissatisfied with the outcome of the relevant recruitment campaign. The HSE said that if the applicant is not satisfied with this outcome it remains open to him to invoke the established appeals process.
The FOI Act affords important access rights to records held by FOI bodies. Indeed, in performing any functions under the Act, FOI bodies must have regard to
• the need to achieve greater openness in their activities and to promote adherence by them, to the principle of transparency in government and public affairs,
• the need to strengthen the accountability and improve the quality of decision making of FOI bodies, and
• the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
The refusal of a request under section 15(1)(g) is not something that should be undertaken lightly. As its Long Title of the Act states, the purpose of the FOI Act is to enable members of the public to obtain access, to the greatest extent possible, consistent with the public interest and the right to privacy, to information in the possession of public bodies. The Act demands that FOI bodies meet very high standards in dealing with requests. The fact that requests may cause an administrative inconvenience is not sufficient reason to refuse requests on the grounds that they are frivolous or vexatious. However, the Act assumes reasonable behaviour on the part of requesters.
As I outlined above, this Office considers that a request may be regarded as frivolous or vexatious where it has either been made in bad faith or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access.
It is important to bear in mind that under section 22(12)(b) of the FOI Act, the onus is on the HSE to justify its refusal. I also note that the Act is silent on the types of factors that might be regarded as relevant when considering this matter. In my view, it would be extremely difficult to attempt to identify a list of factors that one might have regard to in all such cases. Instead, it seems to me that regard must properly be had to the particular circumstances arising in the case in question.
The main thrust of the HSE’s arguments in this case seems to relate to the repetitive nature of requests from the applicant and, in certain cases the number of requests received from the applicant.
In considering the HSE’s refusal under section 15(1)(g), it seems to me that I have to consider the volume and scope of the applicant’s requests and whether they are excessive by reasonable standards. The Commissioner also takes the view that FOI bodies should be cautious in imputing motives to requesters when determining whether to refuse a request under section 15(1)(g). For example, FOI bodies should not assume that the fact that requests cause them administrative inconvenience is sufficient reason to refuse requests on the grounds that they are frivolous or vexatious.
It appears to me that the applicant’s FOI request in this case was driven by his dissatisfaction at not having been successful at interview. The fact that an FOI request might be driven by a particular agenda does not mean that the request is necessarily vexatious. For example, I see nothing wrong with a requester seeking access to records that the requester believes might assist in understanding why he was not successful in a particular recruitment competition.
As set out above, the applicant submitted seven requests in relation to the interview process associated with competition NRS12377 from October 2023 to August 2024. In certain cases the requests are overlapping and repetitive, but in other cases they appear to relate to discrete elements of the interview process; such as the marking sheets, the duties of the Chairperson of the interview panel and information relating to other applicants for the post. Having carefully considered the matter, it does not appear to me that seven requests submitted by the applicant over a ten-month period could be regarded as high. I am satisfied that the applicant’s requests were not, by reasonable standards, excessive.
While I appreciate that the HSE may be frustrated by the number of FOI requests from the applicant, particularly in cases where the requests are repetitive or overlapping, I am not satisfied that it has justified its refusal of the applicant’s request under section 15(1)(g) of the FOI Act on the basis that the request was vexatious or formed part of a pattern of manifestly unreasonable requests.
On balance, I find that the HSE was not justified in refusing Part 1 of the applicant’s request in this case on the basis of section 15(1)(g).
However, that is not the end of the matter. As set out above, the HSE part-granted this record to the applicant as part of FOI request 2023.FOI.054, relying on section 30(1)(a) to refuse access to parts of this record. In addition, as set out above, in the course of the review by this Office, the HSE also indicated that it was now seeking to rely on section 30(1)(b) to refuse access to parts of this record. In the circumstances where I have found section 15(1)(g) not to apply to this record, I therefore consider it appropriate to now proceed to consider the applicability of sections 30(1)(a) and (b) to the remaining parts of this record.
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries, or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, the release of the record could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and considering the contents of each record and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).
As set out above, the HSE has refused access to parts of the interview guidelines for competition NRS12377 on the basis of section 30(1)(a). In submissions to this Office it said that it refused access to these guidelines as part of FOI request 2023.FOI.054 as it considered that release of the records could reasonably be expected to prejudice the effectiveness and fairness of future interviews for a similar position. It said that the Guidelines support the interview board members to ensure consistency in approach across all candidates. It added that the Guidelines contain the specific assessment methodology used during the interview process and such information is confidential and for the use of the interview board members only and should not be disclosed to any third party or reproduced in any way. It further indicated that it considers such confidentiality requirements to apply before, during and after the interview process.
The HSE said that it considers it ability to carry out tests and examinations for the specific position would be prejudiced if the information the Guidelines were to be released. In particular, it said that the release of the guidelines would result in the specific competency indicators which the interview board members will probe at interview being released into the public domain. It said that were that to happen, it would undermine the ability for the assessment to function as an objective measure of competence, meaning that an entirely new methodology would need to be developed by the HSE in the recruitment process. It said that this would come at a significant cost and would result in severe delays in the recruitment of staff to the HSE.
The HSE said that it considers it reasonable to expect the above harms would occur as if the information at issue is released to the applicant, he would be placed at an unfair advantage vis-à-vis other candidates in any future competition as the applicant would possess more detailed information regarding the manner in which candidates would be assessed. The HSE said that this would undermine its ability to ensure that the assessment process would be consistent and fair to all candidates. It said that a failure to provide such a fair assessment process would contravene the core requirements of the Code of Practice of the Commission for Public Service Appointments (CPSA). It therefore considers that it is reasonable to conclude that if the information is released the HSE would be in breach of its obligations as set out by the CPSA.
The applicant, in his appeal to this Office, accepts that the Interview Guidelines are marked ‘confidential’. However, the applicant said that as someone who took part in the recruitment competition at issue, he was provided with the competency areas in advance of the interview process. The applicant further said he believes that there was a discrepancy in the competency areas which were provided to him and other candidates and the competency areas which were provided to the interviewers. The applicant has indicated that he seeks access to the entirety of the Interview Guidelines to establish the validity of his claim.
I wish to clarify at the outset that this Office has no role in examining the manner in which the HSE conducted the NRS12377 recruitment process. It is also important to recall that, as set out above, in deciding whether to grant or refuse to grant an FOI request, any reason that the requester gives for the request, and any belief or opinion of the FOI body as to what are the reasons of the requester for the request, must be disregarded. Thus, 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. Our role in this case is confined to a consideration of whether the HSE was justified in refusing access to parts of the Interview Guidelines.
Section 30(1)(a) envisages two potential types of "prejudice" or harm. It is concerned with protecting both the effectiveness of tests, examinations etc. and the procedures or methods employed for the conduct of such tests etc. The HSE’s position is that the release of the interview guidelines for position NRS12377 as prepared for the interview board members would compromise the impartiality of future recruitment competitions as the information contained in the record could unfairly advantage the applicant, and potentially others, in as he/they would be privy to more detailed information in relation to the assessment modalities in contrast to others applying for the same role.
I have carefully reviewed the information at issue. Having done so, I accept that release of the information at issue could reasonably be expected to prejudice the HSE’s ability to conduct future interview processes. I am satisfied that the Interview Guidelines were prepared to enable the interview board to accurately assess the extent to which the candidates possessed the required competencies for the position concerned, based on potential questions and the behavioural indicators that should be displayed accordingly. I accept that the release of this information to the world at large could reasonably be expected to prejudice the effectiveness of HSE competency-based interviews. In particular, I am satisfied that release of the contents of the record at issue could advantage prospective candidates and negatively impact the ability of the HSE to identify the most suitable candidate for future positions.
I find therefore that section 30(1)(a) applies to the withheld information in the Interview Guidelines.
Section 30(2) – the Public Interest Balancing Test
Section 30(2) provides that section 30(1)(a) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting rather than by refusing the FOI request concerned.
In its submission the HSE said there is a strong public interest in ensuring the effectiveness of the HSE selection process and in ensuring the methods used in those selection processes are not prejudiced. It said that there are existing mechanisms in place to allow candidates to challenge the fairness of selection processes should they so wish and that such mechanisms do not prejudice the selection process itself.
As set out above, the applicant was an unsuccessful applicant in the competition at issue. While the applicant has made a number of arguments which could be described as private reasons for obtaining the relevant information, I am satisfied that I can also interpret the applicant’s arguments as being reflective of a wider public interest in ensuring that the HSE’s recruitment processes are undertaken in a fair and transparent manner.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, 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.
I fully accept that there is a strong public interest in ensuring that public bodies adhere to the principles of fairness and impartiality in conducting their recruitment competitions. On the other hand, there is also a public interest in ensuring that the effectiveness of the selection processes undertaken by the HSE and the methods used in those selection processes are not prejudiced. It is also important to note that there are existing mechanisms available to candidates to challenge the fairness of such selection processes. The CPSA, as the independent regulator for public service recruitment, is responsible for examining complaints alleging breaches of its published Codes of Practice.
Having carefully considered the matter, I am not satisfied that the public interest in enhancing transparency and accountability in HSE recruitment outweighs an outcome where the potential future use of the selection processes themselves, or their effectiveness, may be prejudiced. I find that the public interest would, on balance, be better served by refusing access to the refused information in the interview guidelines for NRS12377.
In sum, I find that the HSE was justified in refusing access to parts of the interview guidelines for the competition in question under section 30(1)(a) of the FOI Act. As such, I do not consider it necessary to examine the claim for exemption under section 30(1)(b).
The HSE has refused access to information falling within the scope of Parts 2 and 5 of the applicant’s request on the basis of section 37.
The record at issue falling within Part 2 of the applicant’s request comprises correspondence between two staff members of the HSE wherein answers to the specific queries sought by the applicant in Part 2 of his request are sought. The HSE part-granted this record to the applicant, with certain information refused; namely the gender, age-range, nationality and start-date of the post-holder of Position A. As set out above, the record identified as falling with the scope of Part 5 of the applicant’s request comprises a screenshot of a mailbox containing eight emails which followed a search for the following terms ‘NRS12377 shortlisting decisions’. I consider that part of the screenshot comprising the sequence of emails in the mailbox only to fall within the scope of this review.
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused if that personal information is inextricably linked to personal information relating to parties other than the applicant. Section 37(1) is subject to sections 37(2) and 37(5).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (iii) information relating to the employment or employment history of the individual, and (viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2(1) of the Civil Registration Act 2004) of, and disability of, or the political opinions or the religious of philosophical beliefs of, the individual.
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 individual’s name is excluded, as is information relating to the position held, 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 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.
In addition, Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not include the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. However, the exclusions to the definition do not exclude all information relating to service providers. Individuals are still entitled to the right to privacy generally.
In its submissions to this Office, the HSE said the information sought within Part 2 of the applicant’s request, and particularly the combination of the information sought, if provided and in light of the small number of individuals working as statisticians in the specific department, it could lead to the release of personal information about an identifiable individual. With regard to the screenshot identified as falling within Part 5 of the applicant’s request, the HSE said that it considered the name of the individual recruitment specialist working for CPL who worked on the competition at issue to comprise their personal information.
As I have explained above, the exclusion to the definition of personal information set out in Paragraph (I) provides that personal information does not include the name of an individual who holds or held a position as a member of the staff of an FOI body 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. I have carefully examined the information at issue. Having done so, it is clear to me that the information comprises information relating to the age, ethnic origin and employment of the individual occupying Position A and that this is their personal information. I am also satisfied that the exclusion at Paragraph (I) does not apply to such information.
Accordingly, I am satisfied that release of the outstanding information in the record falling within the scope of Part 2 of the applicant’s request would involve the disclosure of personal information of individuals other than the applicant and that section 37(1) therefore applies.
Section 2 of the FOI Act defines “service provider” as including a person who was providing a service for an FOI body under a contract for services which includes an administrative arrangement between an FOI body and another person. Previous decisions of this Office have accepted that the exclusion to the definition of personal information relating to service providers applies to the names of the service providers but not the individual employee names. In the circumstances of the case I accept that the exclusion at Paragraph (II) does not apply to the name of the recruitment specialist in the Part 5 record.
In addition, I accept that in certain cases the names of a number of staff members of the HSE are set out in the screenshot. In theory, one could extract these staff names. However, these staff names are inextricably linked to the name of the recruitment specialist in the Part 5 record. Having regard to section 18 of the FOI Act as outlined above, I am satisfied that to provide the record with isolated words and phrases would provide misleading records.
As section 37(1) of the Act is subject to the other provisions of the section, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the above information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, 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. In relation to the question of the public interest, this means that I cannot have regard to the applicants’ motives for seeking access to the information at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of the release of the records, i.e. in so far as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is 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. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In its submissions, the HSE said that on balance the public interest would be better served by refusing access to the information at issue as the commitment of confidentiality in dealing with the recruitment of staff is paramount and it is in the public interest to protect such information.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, 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.
On the other hand, 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.
The information at issue relates to sensitive personal information of an individual other than the applicant. I must regard the release of this information as being effectively, or at least potentially, to the world at large. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information outweighs, on balance, the privacy rights of the relevant third party. In particular, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 37(5)(a) does not apply
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision.
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.
Mary Connery
Investigator