Request by unsuccessful applicant for comparative information about himself and successful applicant

Request by unsuccessful applicant for comparative information about himself and successful applicant—all information about requester released to him—detailed personal information about successful applicant withheld under s 9(2)(a)—requester seeking to establish why his application unsuccessful—matter resolved by provision of s 23 statement of reasons and a summary of successful applicant’s qualifications and work experience—s 16 

In this case, the requester, an unsuccessful applicant for a position in the Department of the Prime Minister and Cabinet had been refused access to the personal profile, curriculum vitae, and the selection panel’s assessment of the successful applicant in reliance upon section 9(2)(a) of the OIA.

It was apparent from the requester’s letter seeking a review of that decision, that he wanted to know why he had not been selected for appointment and how his application had been compared with that of the successful applicant.

In respect of the request for personal information about the successful applicant, based on experience of a number of similar requests and after consultation with the Privacy Commissioner, the general approach is that information supplied by an applicant or generated by assessment/interview panels in their consideration of an applicant is held solely for the purpose of assessing the applicant for the position for which he or she applied. Accordingly, consistent with Information Privacy Principle 11 (IPP11), an applicant for a position with a public sector agency is reasonably entitled to expect that such information will not be disclosed under the OIA without his or her consent unless such disclosure comes within one of the exceptions to IPP11 or is otherwise justified under the OIA. In this respect, it would have to be determined that the withholding of the information was not ‘necessary to protect the privacy of natural persons, including deceased natural persons’ (section 9(2)(a)), or that while disclosure might prejudice the interest protected by section 9(2)(a), this was outweighed by other public interest considerations favouring disclosure (section 9(1)).

In this case, it was clear that disclosure of the detailed information and assessments held about the successful applicant would prejudice the interest protected by section 9(2)(a). The successful applicant was consulted but did not consent to disclosure of the information. However, section 9(1) required consideration to be given to whether the need to protect the information was outweighed by other public interest considerations favouring disclosure.

Clearly, there is a public interest in disclosure of sufficient information about appointments to senior government positions to promote the accountability of officials involved in the appointment process both to the New Zealand public generally and to unsuccessful applicants in particular for ensuring that the best applicant is appointed to such positions. However, that public interest can be met by a general summary as provided in sections 16(1)(e) and 16(2)(c) of the OIA of the successful applicant’s qualifications and work experience.

Following consideration of the information relating to the selection process, it was clear that there was not the level of documentary information held relating to the process as the requester had assumed. All information held about him had been released to him and there was no other information held directly comparing him to the successful applicant. On the basis of experience with other similar reviews, this was not unusual.

Section 23 of the OIA appeared to provide an apt means of resolving the requester’s underlying concerns. Section 23 requires the decision maker to provide, on request, a written statement of:

• the findings on material issues of fact;

• a reference to the information on which the findings were based; and

• the reasons for the decision or recommendation.

Although the requester had been given all written information held about him in relation to his application, further information could be provided in the format of a section 23 statement of reasons. For example, to the extent that during the selection process any comparisons were made between the requester and the successful applicant which had not been recorded, these could be summarised in the section 23 statement.

The request was resolved by the provision of a section 23 statement and disclosure of a general summary of the successful applicant’s qualifications and work experience.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.