Whether the Council was justified in refusing access to records concerning complaints against a particular former registered medical practitioner (RMP) that were investigated/not investigated, under section 15(1)(a) of the FOI Act

25 October 2023

Background

The Council is a statutory body established pursuant to Part II of the Medical Practitioners Act, 1978 and continued in being by section 4(1) of the Medical Practitioners Act 2007, as amended (the 2007 Act). The objective of the Council is to protect the interests of the general public in their interactions with RMPs.

The applicant in this case sought access to the number of complaints and dates of complaints (including complaints made by herself) retained and investigated by the Council against a former RMP to date, as well as details of complaints received but not investigated. She requested that the information be provided to her in table format.

At the outset, it is evident that there was confusion over the timing and processing of the applicant-�s request, the details of which are set out below.

In her application to this Office, the applicant said that she submitted her original request on 20 December 2022, and her internal review request on 23 January 2023. During the course of the review, the Council said that it received a request from the applicant by post on 9 January 2023, (request 1) but that, -�due to an internal administrative error coupled with resourcing constraints at that time, it was not processed-�. It said that it treated the request dated 23 January 2023, (request 2) as an original request, on the basis that it was an amended version of request 1. It said that both requests sought the same information.

On 15 March 2023, the Council issued a decision refusing the applicant-�s request under section 37 of the FOI Act. The applicant then applied to this Office for a review of the Council-�s decision. I understand from correspondence provided to this Office that the applicant did so as it was her belief that the request dated 23 January 2023 was her internal review request. On 20 March 2023, the Council received correspondence from this Office wherein it was notified that an application for review had been received from the applicant. The Council subsequently initiated the internal review process.

On 13 April 2023, the Council issued an internal review decision which refused her request on the basis of sections 37(1) and 15(1)(c) of the FOI Act. On 4 May 2023, the applicant applied to this Office for a review of the Council-�s decision.

During the course of the review, the Council released an extract of an internal spreadsheet containing details relating to historical fitness to practise (FTP) inquiries against the former RMP to the applicant, subject to the redaction of third party personal information under section 37 of the FOI Act. The Council also provided this Office with an explanation as to why no records relating to the second part of the applicant-�s request exist (considered below).

The Investigating Officer subsequently informed the applicant of her view that the record released by the Council contained the information sought in the first part of her request, namely, a table outlining the number of complaints and dates of complaints, including complaints made by herself, retained and investigated by the Council against the former RMP to date. She also informed the applicant of her view that the Council had provided a reasonable explanation as to why no records exist in relation to the second part of her request. I understand from the applicant-�s response that she wished the review to proceed, and that she is of the view that records should exist relating to the second part of her request. Accordingly, I consider it appropriate to conclude this review by way of a formal, binding 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 applicant-�s comments in her application for review and to the submissions made by the FOI body in support of its decision. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, the Council changed its position during the course of the review and released a record relating to the first part of the applicant-�s request. While the applicant did not dispute the Investigating Officer-�s view that this record addressed the first part of her request, she indicated to this Office that additional records containing the information sought in the second part of the request should exist.

The Council-�s position is that no records exist relating to the second part of the applicant-�s request. This is, effectively, a refusal under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist.

Accordingly, this review is concerned solely with whether the Council was justified in refusing access to certain information concerning complaints against a specified former RMP that were retained and not investigated by the Council, under section 15(1)(a) of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments.

First, it is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. A person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

It is also important to note that this Office has no role in examining the administrative actions of FOI bodies, nor does it allow us to act as an alternative dispute resolution mechanism. Our remit is confined to establishing whether decisions taken by FOI bodies on requests made under the FOI Act were in accordance with the provisions of the FOI Act.

Secondly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

The applicant enclosed a copy of two letters addressed to the Council with her application to this Office, dated 2 November 2022 and 2 December 2022, respectively. During the course of this review, the Council informed this Office that it could not locate copies of these letters. With the consent of the applicant, this Office provided a copy of the letters to the Council. The letter dated 2 November 2022 comprised a complaint relating to the former RMP, as well as a request for a copy of the applicant-�s complete medical file and details of the wages paid to the former RMP concerned. The second letter was a request for access to records concerning complaints received and investigated/not investigated concerning the same former RMP, as well as a request for a copy of the applicant-�s complete medical file -�regarding [the Council-�s] complaint process-�. In its correspondence with this Office, the Council stated that it does not have access to a copy of the applicant-�s medical file or to records held by the HSE concerning wages paid to the RMP concerned. It is, of course, open to the applicant to make a fresh request to the relevant Hospital or to the HSE for access to these records.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. In this case, this means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision that no relevant records exist.

In its submissions to this Office, the Council said that all of the complaints made against the RMP concerned while he was on the Register were investigated. As set out above, it stated that it had unable to locate the applicant-�s letter of 2 November 2022. However, it said that, having been provided with a copy of the letter during the review, it was satisfied that this was the -�complaint not investigated-� referred to by the applicant in the second part of her request. The Council said that it can only accept complaints made against RMPs who are currently on the Register. Its position was that the former RMP in question was removed from the Register following an FTP inquiry, which concluded in 2008. Accordingly, it said that it could consider no new complaints relating to him after this time. 

The Investigating Officer provided the applicant with an outline of the Council-�s submissions as to why it did not hold relevant records relating to part 2 of her request. In response, the applicant-�s positon was that the details of all new complaints since the former RMP was struck off should be retained by the Council to be forwarded to An Garda Síochána (AGS). On that basis she sought -�the numbers and dates missing-� from the record released during the review.

On foot of further queries from this Office, the Council indicated that if a new complaint is received concerning a person who had been removed from the Register, the complainant would be informed that the individual has been struck off and that the complaint could not be considered. Its position is that this may have happened in relation to some RMPs over the years, but that the Council would not have recorded details of such a complaint anywhere. In relation to the RMP in question in this case, the Council said that it holds no official record of any complaints made after the individual was struck off in 2008.

On the matter of whether the Council holds further relevant records, it is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the FOI Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the records sought.

I have reviewed the Council-�s explanation as to why it concluded that no records relating to the second part of the applicant-�s request existed, as well as to the applicant-�s arguments in response. While the applicant is of the view that details of all new complaints against the individual since he was struck off should be retained by the Council to be forwarded to AGS, I have no reason not to accept the Council-�s submission that it can only open complaints made against doctors who are currently on the Register and that all complaints against the former RMP up until that point were investigated by the Council. I accept that the applicant-�s complaint dated November 2022 would have been captured by her FOI request, however I have no reason to doubt the Council-�s statement that it did not have a copy of the letter until it was provided by this Office.

In the circumstances, I am satisfied that the Council has adequately explained why it came to the conclusion that no records relating to the second part of the applicant-�s request existed. Accordingly, I find that the Council was justified in refusing, under section 15(1)(a) of the FOI Act, to release any records relating to the second part of the applicant-�s request on the ground that no relevant records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision to refuse access to additional records relating to the second part of the applicant-�s request on the grounds that no further records exist or can be found.

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.

Sandra Murdiff
Investigator