Whether the Council was justified, pursuant to 21(1)(a) of the FOI Act, in its decision to refuse access to two records, consisting of case plans prepared by case workers to assist the Council's Preliminary Proceedings Committee in its deliberations

Conducted in accordance with section 34(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 11 August 2014, the applicant sought access to records held by the Council relating to investigations by it into complaints by her against four named doctors.

The Council's decision issued on 3 September 2014. Access was granted to 59 records coming within scope of the applicant's request. Access was refused to two records, pursuant to section 21(1)(a) of the FOI Act, while the applicant's request was refused insofar as it related to two of the named doctors pursuant to section 20 of the FOI Act, on the basis that the complaints against these doctors remained subject to deliberation by the Council.

On 10 October 2014, the applicant sought an internal review of the Council's decision. On 5 November 2014, following internal review, the Council upheld its original decision. On 18 November 2014, the applicant applied to this Office for a review of the Council's decision.

The Council furnished submissions to this Office in relation to the issues arising in this review on 22 December 2014 and 13 February 2015. Accordingly I have decided to conclude this review by issuing a formal, binding decision. In conducting this review I have had regard to the provisions of the FOI Act, to the decisions of the Council on foot of the applicant's request, to the applicant's correspondence with this Office, and to the contents of the records at issue, copies of which were provided to this Office for the purpose of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matter

In a submission to this Office dated 11 December 2014, the applicant raised various matters relating to the substance of her complaints against named doctors. Mr Niall Mulligan of this Office wrote to the applicant in response and clarified that the role of this Office is to review decisions by public bodies in relation the release of records under the FOI Act, rather than enquiring into matters of clinical practice.

Moreover, it appears that the applicant, in her request for an internal review of the Council's decision, sought answers to certain questions, generally relating to the substance of her complaints against doctors. Mr Mulligan, in his letter to the applicant, clarified that this Office is bound by the terms of the applicant's initial request, wherein she sought access to records relating to the applicant's complaints to the Council against named doctors. I am satisfied that Mr Mulligan's approach in this regard was correct.

Scope of the Review

In her request application for review to this Office, the applicant stated that she sought a review of "the decision by the Medical Council that certain records are exempt records pursuant to section 21(1)(a) of the Freedom of Information Acts". Accordingly, I am satisfied that it is not necessary for me to consider the application of section 20 of the FOI Act by the Council in relation to certain elements of the applicant's request.

Consequently, this review is concerned solely with the question of whether the Council was justified in refusing access to two records, consisting of case plans, under section 21(1)(a) of the FOI Act.

Analysis and Findings

Section 21(1)(a) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof. In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. To establish the reasonableness of the decision, it is essential that the decision maker explain how and why he or she believes release of these particular records will give rise to the harm envisaged. Section 21(1) is subject to a public interest test under section 21(2).

By way of background, the Council submitted that one of its key objectives is to protect the public by maintaining the integrity of the Register of Medical Practitioners. Complaints are brought to the Council's attention by members of the public and then reviewed by the Council's Preliminary Proceedings Committee ("PPC"), with a view to ensuring that doctors (whom the Medical Council register) are appropriately qualified and are fit to practise medicine. The Council stated that the PPC is a group of medical and lay members, who meet on a monthly basis to consider complaints against doctors.

The Council stressed that complaints are not processed by the PPC on behalf of the Complainant and that it does not operate a redress system, but stated that it is incumbent upon the PPC to make reasonable efforts to ensure that the Complainant is kept informed of all decisions made.

In this case, the two records at issue are each "case plans", which, on the Council's submission, contain "recommendations which were formulated and drafted by the Case Officer who was investigating these complaints on behalf of the PPC." The Council's position is that the Case Officer is not the decision maker, but merely carries out the steps to be taken as instructed by the PPC. The records, drafted by a case worker, contain a number of proposed steps for consideration by the PPC, as well as requests for further directions. It also contains a summary of the facts of the complaint. The Council submits that case plans are prepared as internal documents to assist the PPC, acting as an aid memoire and a prompt in the course of its monthly meeting. The record itself is clear that it contains "the case officer's synopsis of the complaint only".

The Council's position, therefore, is that case plans are "an essential internal aid to the PPC as they have a significant workload and have to consider a large number of complaints at their meetings each month." I accept that the examinations, investigations or inquiries covered by section 21(1)(a) of the FOI Act would include the Council's investigative process in its consideration of complaints.

In terms of the apprehended harm, the Council submits that if case plans were to be disclosed to complainants, they would become privy to steps which may have been suggested by the Case Officer, but not taken up by the PPC. The Council submits that the PPC has the role of decision maker, which involves establishing which steps are necessary to investigate the complaint in light of the clinical issues, and claims that "[t]o allow the release of what is essentially an internal aid to the PPC will result in Complainants feeling aggrieved at why certain steps were proposed and then not undertaken by the PPC." The Council also claims that the summary of the complaint may give rise to confusion on the part of complainants, who may feel that the case plan does not reflect the entirety of their complaint, whereas in fact a full brief is made available to PPC members for consideration. The Council concluded its submission by stating that the release of the records at issue will have, "a serious impact on the PPC being able to deliberate effectively on a monthly basis [and] will in essence interfere with the effective running of this function of the Council."

Having carefully considered the matter, I am not satisfied that the Council has established that the release of the records could reasonably be expected to prejudice the effectiveness of the investigations conducted by it, nor the procedures or methods employed by it in pursuance of such investigations.

I am not satisfied that the release of the records would give rise to confusion on the part of applicants as to the contents of the summary of complaints, as both records explicitly state that the record represents a "case officer's synopsis only" and that PPC members should refer to their brief for full details of the complaint.

Furthermore, while I accept that the release of the records could allow interested parties to examine the manner in which cases are handled as between case workers and the PPC, it does not appear to me that this in itself establishes that a prejudice to the effectiveness of the Council's investigations or the procedures and methods employed by it in the course of same may reasonably be expected to arise.

Having closely examined the specific contents of the case plans, I cannot envisage that harms of the types contended for by the Council will arise out the applicant's being granted access to these records. These records refer to what amounts, in essence, to administrative steps taken in the course of the investigation. There is nothing in these case plans that goes to the substance of either the case worker's or the PPC's approach to the particular cases.

Accordingly, I find that section 21(1)(a) of the FOI Act does not apply to the two records at issue in this review. Having so found, it is unnecessary for me to consider the public interest test contained at section 21(2) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the Council's decision to refuse access to two case plans, under section 21(1)(a) of the FOI Act. I direct the release of these records to the applicant.

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 an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator