Whether the Medical Council (the Council) was justified in refusing access to records relating to a complaint made to the Council on the basis of section 37(1) of the FOI Act

24 November 2022

Background

This case concerns a request for records relating to a complaint made by the applicant to the Council in respect of a medical practitioner. The Council is a statutory body which regulates medical doctors in the State. Its purpose is to protect the public by promoting and ensuring high standards of professional conduct and competence among doctors. The Council handles complaints relating to a doctor-�s fitness to practice medicine. A committee established by the Council considers complaints initially and decides whether further action is required.

In a request dated 28 March 2022, the applicant submitted an eight-part request for access to records relating to a complaint he made to the Council. He sought access to specific dated correspondence as well as -�all other records you may possess in relation to my complaints-�. On 26 April 2022, the Council says that it extended the request deadline under section 14(1) of the FOI by a further four weeks on the grounds that the records in question were voluminous.

In a decision dated 25 May 2022, the Council part-granted the applicant-�s request on the basis of section 37(1) of the FOI Act. In correspondence dated 22 June 2022, the applicant sought an internal review of that decision. In a decision dated 14 July 2022, the Council affirmed its original decision. On 15 August 2022, the applicant applied to this Office for a review of the Council-�s decision.

During the course of the review, it came to my attention that there were formatting issues in the redacted copy of the records provided. The Council acknowledged same and provided a revised version to this Office and the applicant.

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 correspondence received from the applicant and to the submissions made by the FOI body in support of its decision.  I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Council identified 1,194 pages of records which it says fall within the scope of the original FOI request. Of these, it says that 638 pages are duplicates. Having reviewed the records, I am satisfied that the 638 pages referenced are duplicates of records which have been part-granted. As such, I will not consider them further.

A number of the records identified are extracts from meeting minutes of the Council. Following queries from this Office, the Council says that the full minutes contain details of all individual complaints considered at that meeting. It says that all other complaints referenced in the minutes are outside the scope of the request and this review. I am satisfied with this explanation.

The remaining records are pages 1-499, 515-524, 544-551, 581-589, 596-608, and 1178-1194. The Council part-granted the records on the basis of section 37(1) of the FOI Act.

The scope of this review is confined solely to whether the Council was justified in part-granting access to the above 556 pages of records on the basis of section 37(1) of the FOI Act.

Preliminary Matters                                                                       

The applicant provided this Office with copies of correspondence and documentation in support of his application for review. However, I note that in much of this correspondence the FOI review process appears to be conflated with a request for review in respect of the complaint submitted to the Council. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. The scope of this review is limited to whether the Council was justified in refusing access to certain information and in its application of an exemption under the FOI Act.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited, particularly in the context of records which contain sensitive and personal information.

Finally, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

Section 37(1) -� personal information

Section 37(1) 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 relating to an individual or individuals other than the requester.

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 foregoing definition, including:

(i) information relating to the educational, medical, psychiatric or psychological history of the individual

(iii) information relating to the employment or employment history of the individual

(xiv) the views or opinions of another person about the individual

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.

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 I am limited in the degree to which I can describe the records at issue, I believe I can say that the Council has applied section 37(1) to records comprising correspondence, case files, clinical notes and other documentation relating to the complaint.

Having examined the relevant records, it seems to me that there are three categories of information at issue, namely:

1. Personal information relating to the doctor who is the subject of the complaint

2. Personal information relating to third-party patients

3. Personal information relating to other medical professionals and staff

In respect of category 1, I am satisfied that the withheld information comprises personal information such that it is exempt under section 37(1) of the FOI Act. It may well be the case that a considerable amount of the information is generally known to the applicant and indeed may have been provided by the applicant during the course of the review. However, the information relates to a third-party and I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large. In respect of the exclusion at paragraph (I), I do not accept that information relating to a complaint could be characterised as being for the purpose of the performance of the relevant doctor-�s functions as a staff member of an FOI body. As such, I am of the view that the exclusion does not apply.

In respect of category 2, I am satisfied that the withheld information comprises personal information relating to third-parties and specifically their medical history. Such information is covered by the exemption at section 37(1) of the FOI Act.

In respect of category 3, the Council has withheld certain references to other medical professionals and staff throughout the records. In submissions to this Office, the Council says that records it holds are held for the specific purpose of investigating complaints. It says that -�it is therefore reasonable to assume that if the names of these medical practitioners were released-� it could be inferred that they were or are the subject of a complaint-�. I accept this position in respect of references to medical professionals in the context of complaint procedures. For the reasons articulated above, I do not believe that the exclusion at paragraph (I) applies to such information.

The Council has also withheld information relating to medical professionals and staff contained in a review document at pages 36-99 of the records. I am satisfied that the information relates to the employment or employment history of the relevant individuals.  I have also considered the application of the exclusion to the definition of personal information at paragraph (I). The individuals in question are not the subject of the complaint to the Council. In submissions to this Office, the Council says that the review document was provided during its investigation. The review was commissioned in the context of issues relating to the subject matter of the applicant-�s complaint to the Council. Given that context, and having reviewed the content of the record, I am satisfied that section 37(1) of the FOI Act applies to the withheld information and that the exclusion at paragraph (I) does not apply. As noted above, the exclusion does not deprive staff members of the right to privacy generally.

In sum, I am satisfied that section 37(1) applies to all of the withheld information in the 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).

Sections 37(2) and 37(5)

Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, and having regard to submissions made by the parties, 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 true public interest 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.

As noted above, the applicant provided this Office with copies of certain documentation including correspondence which was sent to the Council. As noted above, while this correspondence references the FOI Act, the content focuses on the complaint which the applicant is pursuing. In my view, this is primarily a private interest. It is clear from the above judgments that I cannot, in making this decision on the right of access under the FOI Act, take into account the applicant-�s private interest in the grant of access to the records withheld.

In its submissions to this Office, the Council says that there is a public interest in protecting the right to privacy of a medical practitioner who is subject to an investigation which has concluded -�without a referral to an Inquiry before the Fitness to Practice Committee-�. It also says that release of the withheld information may significantly impact the personal and professional lives of other medical professionals named or referred to in the records. It says there is a public interest in protecting the right to privacy of such individuals where they are not subject to the complaint. It also says that there is a public interest in parties -�feeling confident in the Council as a data controller and therefore engaging openly with the Council-�.

Having reviewed the records in question, it seems to me that by releasing certain details from the records, the Council has sought to strike a balance by releasing as much information as it could whilst seeking to protect the privacy rights of the individuals concerned.

Having carefully considered the 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 withheld information that, on balance, outweighs the right to privacy of the individuals 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).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision. I find that the Council was justified in refusing access to the withheld information on the basis that it is exempt from release under section 37(1) 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.

Alison Connolly
Investigator