Ombudsman Sharon Roulstone has ordered the Ministry of Health to release information to an applicant about why he was not chosen for a job in the Mosquito Research and Control Unit, almost two years after he first requested the data under a Freedom of Information request.
The Ombudsman stated in her hearing decision on the matter that, while the request for a full record under the Freedom of Information Act was denied, certain information contained in the record was determined to be the personal data of the applicant and was required to be disclosed to them under the Data Protection Act.
In a departure from the usual rulings on disclosures of data, the information will only be released to the applicant and not to the general public, as the personal data is protected under the Data Protection Act.
According to the Ombudsman hearing decision, on 3 May 2021 the jobseeker had requested a number of records in relation to his unsuccessful application.
The applicant asked for all emails from within the MRCU, Ministry of Health and the Portfolio of the Civil Service, and the records of any meetings about the position, as well as interview notes and scores for all people who applied and the panel report of the interview.
The Ministry of Health, under which the remit for MRCU falls, in its reply to the FOI request eventually disclosed some records to the applicant, but denied access to parts of a record, stating that “their release would prejudice the effective conduct of public affairs and harm the public interest in relation to the disclosure of a confidential discussion of opinions during a job recruitment process”.
The main record in dispute in the applicant’s appeal and the Ombudsman hearing was a 29 Nov. 2017 email between the assistant director and the acting director of the MRCU, “concerning a recruitment process in which the applicant was involved as a candidate”, the Ombudsman noted.
In its rationale to the Office of the Ombudsman for refusing to disclose the full details of the email, the ministry stated that it expects civil servants would “want to be able to freely exchange views in this way to deliberate on recruitment and selection processes without that information being exposed to a candidate (especially an internal candidate).”
‘Chilling effect’
The ministry said disclosing certain information in this case could have a general “chilling effect”; for example, if a civil servant in future wanted to raise a concern about how a selection process was carried out and knew this information had been disclosed under the FOI Act, “would they raise that concern?”.
It added, “It is important for the CIG to ensure civil servants are not inhibited from speaking out when important decisions are being made.”
However, Roulstone noted, “Although the appeal under the FOI Act was ultimately unsuccessful, the law recognizes that applicants still have the right to access their own personal data. This includes the opinions and views of others about him, but not information that is focused on the recruitment process, rather than the applicant.”
Noting that the applicant had first applied for access to the information in May 2021, the Ombudsman pointed out “significant, unjustified delays” in the hearing on the part of the ministry, which took more than a year to release a heavily redacted report to the applicant and caused delays in responding to the Office of the Ombudsman. As a result, the appeal under the FOI Act, in total, took almost two years to resolve.
The full text of the Ombudsman’s decision can be read here.
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