Whether the Medical Council was justified in refusing access to records containing correspondence received by the Medical Council from a named doctor under sections 35 and 37 of the FOI Act
17 February 2021
Background
In a request the Medical Council received on 30 November 2020, the applicant sought access to certain specified correspondence from a named doctor, along with any information held about him. The Medical Council contacted the applicant on 4 December 2020 and asked him to narrow the parameters of his request in light of the volume of documentation involved.
On the same day, the applicant narrowed the scope of his request to the specified correspondence from the named doctor. In a decision dated 21 December 2020, the Medical Council granted partial access to four records, redacting information under section 35 and section 37 of the FOI Act, and it refused access to two records under section 35 of the FOI Act. The applicant sought an internal review of that decision, following which the Medical Council affirmed its original decision. On 14 January 2021, the applicant sought a review by this Office of the Medical Council’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Medical Council in support of its decision, and the applicant’s comments in his application for review, as well as the submissions he made during the course of this review. I have also have had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
This review is concerned solely with whether the Medical Council was justified in refusing access, in whole or in part, to certain correspondence it received from a named doctor under sections 35(1)(a) and 37(1) of the FOI Act.
Preliminary Matters
Before I address the substantive issues arising, I would like to make some preliminary points.
First, section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As a consequence, the descriptions I can give of the information that has been withheld or the reasons for my findings in this case are necessarily limited.
Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. I will address the public interest balancing test later in this decision.
Thirdly, it is important to note that the release of a record under the FOI Act is, in effect, regarded, as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put. As such, the fact that the applicant may be aware of the identity of the individuals about whom the withheld information relates and/or the general substance of the withheld records does not mean that the information and records cannot be withheld under section 37.
Finally, this Office does not examine complaints about the manner in which public bodies conduct their business generally. In conducting this review, I am confined to considering whether the Medical Council was justified in refusing access to the records concerned under the provisions of the FOI Act.
Analysis and Findings
While the Medical Council has redacted information and withheld certain records under sections 35 and 37, and went on to submit that section 32 might also apply in its submissions to this Office, section 37 appears to me to be of most relevance in this case. Therefore, I will consider its application first. The records at issue comprise email correspondence and attachments received by the Medical Council from a named doctor.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including
(iii) information relating to the employment or employment history of the individual,
(vi) information relating to any criminal history of, or the commission of or alleged commission of any offence by, the individual,
(viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2 (1) of the Civil Registration Act 2004 ) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual, and
(xiv) the views or opinions of another person about the individual”.
As mentioned above, section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. While this means that I am limited in the degree of description I can provide of the records at issue, I believe I can say that the records concern the relevant doctor’s response to a complaint the applicant made about him.
Having examined the records at issue, I am satisfied that the redacted information includes either personal information solely relating to the doctor or other third parties, or personal information relating to the doctor that is inextricably linked to personal information relating to the applicant (i.e. joint personal information). I am satisfied that section 37(1) applies to all of the withheld information and records at issue. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5).
Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, and having regard to the correspondence between this Office and the parties to this review, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.
Subsection (5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that subsection 5(b) does not apply in the circumstances of this case.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
In essence, the applicant has indicated that he requires access to the records in order to pursue his grievance with the named doctor and with the Medical Council. In my view, this is essentially a private interest. It is clear from the above judgments that I cannot, in making this decision on the right of access under FOI, take into account the applicant’s private interests in the grant of access to the records withheld.
In its submissions to this Office, the Medical Council said that under the Medical Practitioners Act 2007, following investigations where a complaint is upheld, in line with Section 85 (a)(i)(ii), it may be deemed in the public interest for this information to be released. It said that where no findings are made against a doctor, the Medical Council, if asked, would neither confirm nor deny the existence of any complaint(s) against named individuals as this is the doctor’s personal information. It added that in this case, the complaint was not upheld.
Having carefully considered this matter, and given the strong public interest in protecting the right to privacy and the inherently private nature of the information at issue, I find no relevant public interest in granting access to the remaining withheld information that, on balance, outweighs the right to privacy of the individual(s) to whom the information in question relates. Accordingly, I find that the Medical Council was justified in refusing access to the withheld information under section 37(1).
Given my findings, it is not necessary for me to consider the application of section 35 or section 32 to any of the information at issue.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Medical Council’s decision to refuse access to records containing correspondence received by the Medical Council from a named doctor on the basis that they are exempt from release under section 37 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator