Whether the Council's decision to refuse access to any further records relating his complaint against a medical consultant is justified under section 10(1)(a) of the FOI Act

Case Summary

The Senior Investigator found that the Council's decision to refuse access to the records sought is justified under section 10(1)(a) of the FOI Act and affirmed the decision accordingly.

Date of Decision: 05.11.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

In a request dated 29 August 2008, the applicant sought access under FOI to copies of records, correspondence and electronic data held by the Council regarding the formal complaint that he had made against a medical consultant, Mr. Y. 

The applicant specified that he sought access to "copies of all internal, external and electronic (email) correspondence generated during investigation/assessment of [his] complaint, included but not limited to, correspondence between the Medical Council and [Mr. Y], the Fitness to Practice Committee and correspondence with Hayes Solicitors (Incorporating Fawsitt Solicitors) and the Adelaide Meath and National Children's Hospital". 

In a decision dated 25 September 2008, the Council purported to grant the applicant's request and made certain records available to him.  As the applicant was not satisfied that all relevant records had been released to him, he applied for an internal review of the Council's decision on 17 October 2008.  In a subsequent decision dated 6 November 2008, the Council effectively refused the applicant's request for any further records relating to his complaint under section 10(1)(a) of the FOI Act.  However, as the decision did not issue until 11 November 2008 and was thus outside the statutory timeframe for internal review decisions, the application for internal review was deemed to have been refused under section 41 of the FOI Act.  The applicant applied to the Information Commissioner for review in a letter dated 12 February 2009.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act.  In conducting this review, I have had regard to the submissions made by the Council and the applicant, including the applicant's written comments dated 16 June 2009 in response to the preliminary view letter issued by Ms. Melanie Campbell, Investigator, on 4 June 2009.

Conducted in accordance with section 34(2) of the FOI Act by Seán Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review).

Scope of Review

This review is concerned solely with the question of whether the Council's decision to refuse the applicant's request for access to any further records relating to his complaint against Mr. Y is justified under section 10(1)(a) of the FOI Act. 

Submissions

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Findings

Section 10(1)(a) of the FOI Act provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". The Commissioner's role in section 10(1)(a) cases, which are usually referred to as "search" cases, has been explained to the applicant and need not be restated here.  The applicant has also been advised that the Commissioner's approach in search cases was upheld in a judgment of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA).

In its decision dated 6 November 2008 on internal review, the Council outlined for the applicant the steps that had been taken to locate the records relevant to his request.  Although the decision issued outside the statutory timeframe for internal review decisions, it is nevertheless the practice of this Office to accept such decisions as an "effective" decision or, more accurately, as a statement of the position of the public body concerned on the matter at issue.  In this case, I find no basis for questioning the veracity of the claims made by the Council in its decision.

In his application for review to this Office, however, the applicant pointed out that he had received "no copies of any contemporaneous notes" and "no information or documentation regarding 'how' the decision came about not to proceed with a prima facia case against the individual Medical Practitioner and Medical Council Board Member".  The applicant also referred to email correspondence in his possession and stated that "this potentially suggests that there may be other relevant email correspondence in existence that [he] may be entitled to and that the Medical Council appears to have no record of".

In the course of this review, the Council explained that the applicant's complaint against Mr. Y had been dealt with summarily by the Fitness to Practice Committee under Part V of the Medical Practitioners Act 1978 (MPA 1978).  The Council's full explanation has been conveyed to the applicant and, again, need not be restated here, though it is relevant to my conclusions.  However, I consider it particularly helpful to reiterate the following statement of the Council: 

"The procedure described under section 45(2) of the 1978 Act is, therefore, in effect a summary procedure.  The Committee forms an opinion based on their consideration of the material provided to it in support of a complaint and the material provided by the doctors.  There is, therefore, no documentation of the type described by [the applicant] in his letter of 12th February, 2009.  There are no contemporaneous notes nor any other documents that did or would have come into existence at the time that the Committee made their decision."

In light of the Council's explanation, I accept that no records of discussion, analysis, observations, etc. by the Committee members or other members of the Council were created in relation to applicant's complaint against Mr. Y.  Moreover, I note that, according to the Council, all records relevant to the applicant's complaint, including all related correspondence, are stored in one file, referenced C98/06, copies of which have been made available to the applicant.  The Council has stated plainly that no documentation was stored anywhere else.

Specifically in relation to the possible existence of additional emails, I note that, in its decision dated 6 November 2008, the Council stated that the steps taken to locate relevant records included a "search of the electronic databases and records held by the

[Professional Standards] Section, both on mainframe computers and on individual staff computers".  In a submission dated 22 May 2009, Mr. William Kennedy, the Council's legal advisor, confirmed that he searched his email correspondence from May 2006 onwards and could not find any emails either sent to or received from the applicant.  Mr. Kennedy further stated that other members of staff within the Professional Standards Section also searched their emails for the same period and uncovered no evidence of emails either received from or sent to the applicant. 

Based on the above, I consider that any relevant correspondence, including any relevant email correspondence, could reasonably be expected to be stored in the file relating to the applicant's complaint.  According to his own description, the emails in the applicant's possession are not "of any great significance".  In fact, they consist of an email from the applicant dated 27 February 2007 advising the Council that he intended to file his "completed complaint" by the end of that week and an email from the Council dated 24 September 2008 providing a progress update on the applicant's FOI request.  Public bodies would not necessarily be expected to retain emails of such a routine or innocuous nature.  The second email is, in any event, outside the scope of the applicant's request in this case.  Nevertheless, for the sake of clarity, Ms. Campbell asked the Council, following the applicant's reply to her preliminary view letter, to detail the steps taken to search in particular for internal emails relating the applicant's complaint or other relevant emails between the Council and third parties such as Mr. Y, Hayes Solicitors, or Adelaide & Meath Hospital.

In an email to Ms. Campbell dated 25 September 2009, Mr. Kennedy conclusively stated:  "There are no emails to any other party concerning [the applicant's complaint]."  As Mr. Kennedy's email did not explain the basis for this conclusory statement, Ms. Campbell asked the Council to provide further details.  Subsequently, in a written submission dated 16 October 2009, Mr. Kennedy gave the following explanation:

"All correspondence concerning the complaint was conducted on paper; no emails were exchanged with Messrs. Hayes Solicitors or their client, [Mr. Y] of any documentation provided by either Messrs. Hayes or by [the applicant].  It was the Fitness to Practise Committee's policy to encourage complaints in writing and to conduct the consideration of a complaint in writing as well.

In any event searches were made under the complaint number of the case . . . C98/06, under [Mr. Y's] name and [the applicant's] name.

As I have already mentioned in my letter of 22nd May, 2009 all correspondence concerning [the applicant's] complaint together with any information received in relation to the complaint is contained in the one file reference C98/06.

As a general rule there is a policy of deleting any unnecessary routine emails on a periodic basis.

In general terms any material received in support of or in response to a complaint whether it is in hard copy or by email is stored on the file by printing off an email (if one is received in relation to a complaint) and retaining that email on file and a soft copy is retained on the Medical Council's system."

In the circumstances, I am satisfied that the Council has taken all reasonable steps to locate any further records, including email correspondence, relating to the applicant's complaint against Mr. Y.  I therefore find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Council in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.

Seán Garvey

Senior Investigator

05 November 2009