Case Number: 170144

Whether the Council has justified its refusal to release certain records concerning its accreditation of the Royal College of Surgeons in Ireland - Medical University of Bahrain (the MUB)

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This case follows on from a December 2016 decision made by the Information Commissioner in Case No. 150161 (the Commissioner's decision), which can be found at http://www.oic.gov.ie/en/Decisions/Decisions-List/Mr-Y-and-the-Medical-Council-FOI-Act-2014-.html.

The Commissioner's decision concerned a request, made to the Council on 20 February 2015, for 10 categories of records relating to the Council's accreditation of the MUB. To put the request into context, the MUB was established in Bahrain in 2004 to provide healthcare education and training to students from Bahrain and beyond, and has over 1200 students enrolled. Under the Medical Practitioners Act, 2007, the Council is responsible for approving programmes of medical education and the bodies which deliver these. In 2011, the MUB sought accreditation under the Medical Practitioners Act, 2007. As part of this process, the MUB was required to provide various information and documentation, and an accreditation visit/inspection took place in October 2014. A report of this was prepared by the Council in December 2014, which granted MUB accreditation and also made a number of recommendations.

During the review in Case No 150161, the Council found additional relevant records, for which a person (Ms X) made a fresh request on 18 October 2016. The Council's decision of 21 November 2016 granted access to some of the records, and refused to grant access to the rest under various provisions of the FOI Act. Ms X sought an internal review of the Council's decision on 22 November 2016. The Council's internal review decision of 6 January 2017 granted access to some further records, and affirmed the refusal to grant access to the rest under a number of provisions of the Act.

On 27 March 2017, the applicant (on behalf of Ms X) sought a review by this Office of the Council's decision on eight records it had withheld i.e. records 1, 4, 5, 6, 7, 9, 10 and 14, as listed on Schedule 2 to its internal review decision.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, the Council, the Royal College of Surgeons in Ireland (the RCSI - which, although an FOI body in its own right, is a third party in this review) and the applicant. I did not consult with the MUB. In Case No 150161, the Commissioner consulted only the RCSI, for reasons explained in his decision, and the RCSI made submissions on the MUB's behalf and its own. However, the RCSI did not respond to this Office's request for submissions in this case. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Council has justified its refusal of records 1, 4, 5, 6, 7, 9, 10 and 14 as listed on Schedule 2 to its internal review decision.

Bearing in mind section 25(3), which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record, the above can be described as follows:

• Record 1 is a Memorandum of Understanding, dating from 2003, concerning the establishment and operation of the MUB.
• Record 4, dating from 2006, concerns the MUB's Performance and Development Review process.
• Records 5 and 6 are institutional review reports of the MUB, prepared by the Quality Assurance Authority for Education and Training in the Kingdom of Bahrain, and date from, respectively, 2011 and 2009.
• Record 7 is entirely contained in record 10 and I do not intend to consider it further.
• Record 9 is an email string between the Council and the MUB, dating from August 2014. It includes a copy of record 1, which I do not intend to consider further.
• Record 10 contains a letter sent to the Department of Health (the Department) by the Office of the Attorney General (the AG); a letter sent by the AG's Office to Ceartas (Irish Lawyers for Human Rights), in response to a letter and submission from Ceartas that outlined concerns over the Council's prospective accreditation of the MUB; and an email, from the Department to Council, forwarding this correspondence. The contents of record 10 date from September 2014.

The applicant was employed by Ceartas before it was dissolved and was asked, in this review, to confirm if he wants access to records sent to or from Ceartas. He did not confirm that he wants such records. I have taken it that he does not want access to the Ceartas letter and submission and I have not considered them further.

• Record 14 is described in the Council's schedule as a note regarding the MUB, dated December 2013, "for AK approval".

Findings

The Commissioner's decision criticised the quality of the Council's submissions, noting that they were general and did not refer to specific records or types of records. I am disappointed to note that the submissions made in this case are, again, general.

Record 10 - sections 28 and 42(f)
The Council originally relied on sections 28(1)(a) and 35(1)(a) of the FOI Act in refusing to grant access to record 10.

Section 28(1)(a) provides that a record may not be released pursuant to an FOI request where the record has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. The Council appears to consider that the fact that a record was submitted to the Attorney General for her consideration makes the record exempt under this provision. However, section 28(1)(a) is clearly only applicable to a record that has been or is proposed to be submitted to the Government for its consideration and I find it not to apply to record 10.

However, the Council is now relying on section 42(f) of the FOI Act in relation to this record. Section 42(f) provides that the FOI Act does not apply to a record held or created by, in particular, the Attorney General or the Office of the Attorney General, other than a record relating to general administration. It is not subject to any public interest test.

The letters from the AG, as contained in record 10, were clearly created by that Office. While they do not contain legal advice, neither do I consider them to relate to the general administration of that Office. I find those letters are not subject to the FOI Act, further to section 42(f). However, section 42(f) does not apply to the remainder of record 10 i.e. the email from the Department to the Council.

Records 1, 4, 5, 6, 9, and 10 - section 35
The Council's internal review decision relied on section 35(1)(a) of the FOI Act in relation to records 1, 4, 5, 6, 9, and 10.

Section 35(1) provides for the mandatory refusal of an FOI request for a record that, generally speaking, contains (a) information given in confidence or (b) information subject to a duty of confidence. It is subject to section 35(2).

Section 35(2)
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider."

The Commissioner's analysis and findings on section 35(2) in his decision in Case No. 150161 are based on the same facts and circumstances as apply in this case. Accordingly, his analysis and findings are relevant in this case and I have adopted them for the purposes of this review. I see no need to recite the relevant details, and will simply refer to them as necessary. In summary, the Commissioner found that the MUB is not an FOI body, and that it is possible for it to be owed a duty of confidence in respect of records it created or provided to the Council, or which were so provided on the MUB's behalf.

Section 35(1)(b)
I have decided to consider the application of section 35(1)(b) to records 1, 4, 5, 6, 9, and 10 even though, somewhat surprisingly, the Council did not rely on it. The Commissioner's decision gave a detailed analysis of why the provision applied to certain kinds of records, and not to others, having regard to the same facts and circumstances as relevant to the present case.

Records 1, 4, 5, and 6
Section 35(1)(b) of the FOI Act provides for the mandatory refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that schedule) or otherwise by law. A duty provided for "otherwise by law" encompasses an equitable duty of confidence. When considering the existence of an equitable duty of confidence, this Office has regard to the three elements of what are generally known as the "Coco" tests (Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41):

"First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

The Council's submission in relation to section 35(1)(a), which I will also consider in relation to section 35(1)(b), is brief. It says that the records were provided by the MUB in confidence and on the understanding that they would be treated by the Council as confidential, and that their release "would have a 'chilling effect' on the frankness and openness of future such disclosures." The Council's assertions, of themselves, do not meet the requirements of section 22(12)(b) that the decision making FOI body shows to my satisfaction that its decision was justified. However, it is not open to me to direct release of the records on this basis alone when third party interests might be affected by their release.

I have adopted the Commissioner's analysis regarding section 35(1)(b) as set out in his decision in Case No. 150161 for the purposes of this review. Again, I see no need to recite the relevant details to any significant extent and I will simply refer to them as necessary.

I have no reason to consider that disclosure of the records would breach a duty of confidence provided for by a provision of an agreement or an enactment.

In considering whether an equitable duty applies to these records, I accept that the material in them has the necessary quality of confidence about it (the first Coco test refers). I also accept that release is unauthorised by the third parties to which it relates and would result in detriment to the MUB (the third Coco test refers).

The Commissioner's decision, when considering the second Coco test, found certain information to have been imparted in circumstances importing an obligation of confidence that lasts beyond the Council's decision to award accreditation. He found that records with ongoing application to the MUB's day to day operations, even if some were created specifically in advance of the accreditation process, could be distinguished from records specifically concerned with the application for accreditation. The records he found to meet the second Coco test included records concerning the MUB's internal operations, such as policies and procedures, SWOT analysis-type information, and information concerning arrangements with third parties.

Records 1, 4, 5, and 6 concern the general and internal operations of the MUB and have ongoing application. I do not consider them to have been created specifically for the purpose of seeking accreditation from the Council. I am satisfied that they were provided by the MUB to the Council for the limited purpose of seeking accreditation and that the second Coco test has been met in relation to them.

Accordingly, I accept that the Council owes the MUB an equitable duty of confidence in relation to these records. The Commissioner's decision explained why he did not consider there to be any basis on which a breach of the duty of confidence in that case might be authorised, or excused. Again, I adopt his analysis and finding on that issue for the purpose of this decision. I find records 1, 4, 5, 6 to be exempt under section 35(1)(b) of the FOI Act.

Record 9
In his decision, the Commissioner described the accreditation process as somewhat like a tender process, in which the MUB seeks to gain the intangible benefits of accreditation, via the Council, from the Irish State. He found that records created and provided to the Council in order for the MUB to be accredited (which he described as similar to tender documents) not to meet the second Coco test. He also found the MUB's response to recommendations made by the Council when it accredited the MUB (the follow up record) not to meet the test. While accepting that the follow up record was created and submitted after accreditation process had ended, he considered it to have been in the MUB's interests to submit the document concerned.

The emails comprising record 9 are administrative in nature. They detail contacts between the Council and the MUB concerning the accreditation process itself, rather than the detail of the MUB's own operations. I consider the emails to have been created specifically in relation to the MUB's application for accreditation. I do not consider their contents to support any claim being made that the details amount to frank and open disclosures, nor does the Council's submission explain why this might be the case. Accordingly, I do not accept that the MUB could have reasonably expected that the details of the emails in record 9 would be indefinitely protected from disclosure.

I find that the second of the "Coco" tests, necessary for it to be said that the information in record 9 is subject to an equitable duty of confidence, has not been met in this case. I find the record not to be exempt under section 35(1)(b).

Neither do I consider it to be exempt under section 35(1)(a). One of the tests that must be met for that exemption to apply is that, in the opinion of the head, disclosure of the information in the record would be likely to prejudice the giving to the body of further similar information from the same or other persons. The Council's submission does not address this test. The record, in part, contains emails from the Council to the MUB, which is not information to which section 35(1)(a) can apply anyway. Having regard to the content of the emails sent by the MUB, it was clearly in its interests to send those emails. I have no reason to consider that the release of record 9 would be likely to prejudice the receipt of similar material from either the MUB, or other bodies seeking to be accredited by the Council. I find record 9 not to be exempt under section 35(1)(a).

Record 10
It is clear from the provisions of section 35(2) that section 35(1) cannot be relied on in relation to the remainder of record 10. It was an email created by an FOI body (the Department) and contains no information that, if released, would breach of a duty of confidence owed to any third party, including the MUB. I find that this element of record 10 cannot be exempt under section 35(1) of the FOI Act.

Record 9 - section 37
I find a name and all contact details for an MUB staff member in record 9 to be personal information that is exempt under section 37(1) of the FOI Act, and that none of the exceptions to section 37(1) (including the public interest balancing test at section 37(5)(a)) require their release.

Record 14 - section 31(1)(a)
The Council withheld record 14 under section 31(1)(a). Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (to which I will refer as records attracting legal advice privilege), and
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third
• party, the dominant purpose of which is preparation for contemplated/pending litigation (to which I will refer as records attracting litigation privilege).

In requesting submissions from the Council, this Office noted that record 14 seemed to be the only record over which section 31(1)(a) was claimed. It also noted that, while according to Schedule 2, record 2 should be three pages long and refer to "AK approval", what was provided to this Office was one page long and made no reference to being for approval/AK approval. The request for submissions told the Council that it should show that the relevant communication(s) were for the purpose of obtaining and/or giving legal advice, where this is not immediately evident from the face of the record. The Council duly supplied a full copy of record 14, but made no submission in relation to section 31(1)(a).

This Office subsequently asked the Council to clarify what happened further to record 14, such as to whom it was subsequently provided, for what purpose and what was the outcome. The Council was also asked for copies of any relevant associated records. It replied that, on foot of record 14, a legal opinion was sought through the Council's legal advisers and this was provided on 28 February 2014.

This Office asked the Council again for copies of any relevant associated records. The Investigator made it clear to the Council that it should provide, at the very least, a copy of the request for legal advice that was said to have been sought further to record 14, as well as the date it was sought, in order for this Office to decide whether record 14 was exempt under section 31(1)(a).

The Council replied that its internal searches had not found any additional or associated records. It also said that while record 14 stated that it was for legal opinion, it did not ultimately form part of the instruction to the Council's solicitors to request Counsel's opinion.

I accept that details disclosing confidential communications made between a client and his/her professional legal adviser, for the purpose of obtaining and/or giving legal advice, attract legal privilege. While I cannot describe record 14's contents in detail, it is largely factual and concerned with the accreditation process up to December 2013. However, points 6 and 7a of record 14 contain details of legal advice sought from the Council's legal advisers. I find that these parts of record 14 attract legal advice privilege and are exempt under section 31(1)(a).

I do not accept, however, that the rest of the record attracts legal advice privilege. It does not contain any further details of legal advice requested or given, neither is it apparent how it forms the basis for any request for legal advice subsequently sought. I also note the Council's confirmation that record 14 did not ultimately form part of the instruction to the Council's solicitors to request Counsel's opinion. Furthermore, while the phrase "for legal opinion" appears in record 14, so too does "for decision". I find that the remainder of this record is not exempt under section 31(1)(a).

Remainder of records 9, 10 and 14 - sections 30 and 36
The Council's submission also refers to sections 30(1)(a) and (b) and sections 36(1)(a) and (b) of the FOI Act. Its submissions indicate that these exemptions apply to those records I have found to be exempt, rather than the remainder of records 9, 10 and 14. I will, however, consider their application to these records, for the sake of completeness.

Sections 30(1)(a) and (b)
Section 30(1)(a) provides that an FOI request may be refused if access to the record concerned could, in the opinion of the head, 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.

Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of a record if access to the record concerned could, in the opinion of the head, reasonably be expected to "have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff)".

The Council's submissions regarding section 30 indicate no concern about the impact of release of records on its own functions.

Its arguments concerning section 30(1)(a) say that the records relate to reviews carried out by the RCSI to "review the quality of the performance education and training institutions." It says they contain information that, if released, could reasonably be expected to prejudice the effectiveness of the functions of the RCSI in relation to its vetting of external medical schools, and disclose the methods currently employed by the RCSI "to ensure the availability of high quality Doctors for the Irish Healthcare system." This, in the Council's view, "would prejudice the effectiveness of examinations."

In relation to section 30(1)(b), it says that the records relate to how the RCSI performs its functions of assessing foreign medical schools. It considers that release of the records would have a significant adverse impact on the RCSI's assessment and inspection of foreign medical schools. It says it is vital for the RCSI to have robust and consistent assessment tools in place to ensure the continued working relationships with foreign medical schools. It claims that release of the records could reasonably be expected to prejudice the effectiveness or the procedures or methods employed for the actions current being undertaken by the RCSI to improve its delivery of education.

The Council's submission does not explain why it considers release of the records remaining at issue could result in the harms it envisages. I see no reason, based on their content and the Council's submission, to find them to be exempt under section 30(1)(a) or (b).

Section 36(1)(a) and (b)
Sections 36(1)(a) and (b) are mandatory exemptions.

Section 36(1)(a) applies to a record containing trade secrets of a person other than the person seeking access to the records.

Section 36(1)(b) applies to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The Commissioner's decision adequately explains his approach to the application of section 36(1)(b) in that case, which I again adopt for the purposes of this decision.

The Council's submission in relation to sections 36(1)(a) and (b) says that the records give details of proprietary approaches taken in developing medical programmes for which accreditation is sought. It says that release of the records would undermine the value of the RCSI's investment in such developments. It asserts that release could meet the harms set out in section 36(1)(b). It did not develop its assertions further.

The Commissioner's decision found section 36(1)(b) to apply to the records he described as similar to tender documentation, and to the follow up record. In making this finding, he accepted that the records were sufficiently current to have relevance today. He noted that the information in them reflected the content of other records he had found to be exempt under section 35(1)(b). He accepted that they could provide MUB's competitors with at least some level of insight into its commercial operations than would otherwise be the case, which insight they could incorporate into improving their own operations.

The details in record 9 are general and, as already described, concern the accreditation process much more than they concern the MUB's (or the RCSI's) operations. They reflect the material submitted for the MUB's accreditation only to a very limited extent. The email in record 10 does not reflect other records, and is general. Record 14 is as described above. I have no reason, based on the Council's submission and the content of these records, to find any them to be exempt under sections 36(1)(a) or (b).

Summary
I find that the parts of records 9, 10 and 14 that I have not already found to be exempt/outside of FOI are not exempt under the FOI Act.

I should also add that, if I had found these details to be exempt under section 30 or 36, I would have directed their release in the public interest. The FOI Act itself recognises a public interest in ensuring the openness and accountability of FOI bodies. In this case, there is a significant public interest in ensuring openness and accountability in respect of how the Council performed its accreditation functions. While that public interest has been served to a certain extent by the material released to date and other publicly available material, I would consider it appropriate to further serve it by directing release of these records, all of which concern the Council's decision making process on the MUB's accreditation application.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council's decision.

I affirm its refusal to grant access to records 1, 4, 5, and 6, and parts of record 10 and 14, under sections 35(1)(b), 31(1)(a), 37(1) and 42(f) of the FOI Act. I annul its refusal to grant access to the remaining withheld details, which I direct be released as follows:

Record 9: release except for the copy of record 1, and the name and all contact details for an MUB staff member;
Record 10: release email from the Department to Council (one page) only and
Record 14: release except for points 6 and 7a.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Council to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

Right of Appeal

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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator