Case number: OIC-141981-W6V1Z4

Whether the Council was justified in refusing access to records relating to a particular complaint under investigation

 

12 March 2024

 

Background

In a request dated 6 July 2023, the applicant sought access to records relating to a complaint made about him to the Council. His request comprised seven parts. He sought remaining documents which had not been provided to him by the Council as well as certain production summonses and witness statements. He also requested “the legal basis” for certain actions undertaken by the Council and the specific breach of the Medical Practitioners Act “that the PPC is concerned about”. In a decision dated 28 July 2023, the Council refused the request on the basis of section 30(1)(a) of the FOI Act. On 8 August 2023, the applicant sought an internal review of the Council’s decision. On 29 August 2023, the Council affirmed its decision and refused access to the records requested on the basis of section 30(1)(a). It noted that certain parts of the applicant’s request are “queries relating to data sharing”. It said that such queries are requests for information rather than records and fall outside the scope of the FOI Act. It briefly addressed these queries in its internal review decision letter. On 1 September 2023, the applicant applied to this Office for a review of the 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 applicant and the Council. I have considered communications between this Office and the parties during the course of the review. 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 originally identified 254 pages of records as coming within the scope of the applicant’s request. It refused access to the records in full. During the course of this review, it made the decision to release 166 pages of the records identified to the applicant. It said that this documentation was released under the complaints process of its Preliminary Proceedings Committee. It said that it was no longer relying on the relevant exemption provision as the documents had been released to the applicant. It identified the records which it had released to the applicant as well as the documents which it continued to refuse on the basis of section 30(1)(a).

On foot of the above submissions, the Investigator contacted the applicant to discuss the Council’s release of the records. The applicant noted that he wished the matter to proceed to a binding decision. The Investigator outlined her position that there was nothing further for this Office to review in respect of the records released to date. She drew the applicant’s attention to various sections of the Act which allow for the discontinuance of a review where there is no longer any issue requiring adjudication (section 22(9)(a)(v) refers) or the refusal of a request where it relates to records already released (section 15(1)(i) refers). In response, the applicant outlined his view that the records released “have been received much later than they ought to have been received”. He said that the Council should have provided the documents on request. He said that, in his opinion, the Council has ignored its responsibilities as a public body and that there would be merit in including this as a finding.

While noting the applicant’s submissions, I am satisfied that there is nothing further for this Office to review in respect of the 166 pages of records released during the course of the review. It is important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Furthermore, there is nothing in the FOI Act which precludes an FOI body from making the decision to release further records during the course of a review; indeed, it is something that occurs with some frequency. Accordingly, I am satisfied that the released records should be removed from the scope of this review. I will not consider them further.

During the course of the review, and on foot of queries from this Office, the Council identified one further record which had been sent via a particular file sharing platform and which had not been released to the applicant. It provided a copy of the record and said that it was relying on section 30(1)(a) to refuse release. I will consider this record as part of the review.

I am satisfied that certain parts of the applicant’s original request relate to the Council’s legal basis for requesting and sharing records and that this comprises a request for information as opposed to records. I note that the Council provided certain information to the applicant in respect of this request. I also note that the applicant’s application to this Office referred to the Council’s refusal to grant access to the records identified. Subsequent submissions made in respect of the Council’s investigative process have been considered and referenced in my analysis below. Section 11 of the FOI Act provides for a right of access to records held by an FOI body. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the legislation, 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. I am satisfied that this review is concerned with whether the applicant is entitled to access the relevant records identified by the Council. 

In his original request, the applicant sought copies of witness statements referenced in an original complaint. Having considered the records provided to this Office, I queried whether such witness statements exist or had been identified by the Council. In response, the Council said that it is not in possession of the witness statements requested. It said that section 15(1)(a) of the FOI Act would more appropriately apply to this section of the request, rather than section 30(1)(a). I will briefly consider this position below.

This review is therefore concerned solely with whether the Council was justified in refusing access to the remaining 89 pages of records identified on the basis of section 30(1)(a) and in effectively refusing access to certain witness statements on the basis of section 15(1)(a). 

Preliminary Matters

I wish to make a number of preliminary points before I address the substantive matters at issue in this case. Firstly, 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 the 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.

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Council to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Finally, it is important to note 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.                                                                                                         

Analysis and Findings

The records at issue

As noted above, the records in this case relate to a complaint made to the Council. The Council provided background information in respect of its complaint processing. It said that it is a statutory body whose objective is to protect the interests of the general public in their interactions with registered medical professionals. It said that one of the means by which it carries out its functions is by investigating complaints and holding fitness to practice inquiries, where appropriate, in accordance with the provisions of the Medical Practitioners Act 2007 (the 2007 Act), as amended.

It said that the Preliminary Proceedings Committee (PPC) was established under the 2007 Act to give initial consideration to complaints and to perform certain functions assigned to it. It said that the PPC undertakes investigations to assess whether there is sufficient cause to warrant further action in respect of the complaint.

While I am limited in the extent to which I can describe the contents of the remaining identified records, I believe I can say that they comprise correspondence between the Council and a third party complainant as well as internal memoranda and case plans. 

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.

As noted above, in his original request, the applicant sought copies of witness statements referenced in an original complaint. I queried whether such witness statements exist or had been identified by the Council. In response, the Council said that it is not in possession of the witness statements requested. It said that section 15(1)(a) of the FOI Act would more appropriately apply to this section of the request, rather than section 30(1)(a).

I note that the applicant is not aware of the Council’s revised position on this matter. I further note that the Council has not provided substantive submissions to this Office in respect of its reliance on the relevant administrative provision.

Having considered the limited submissions made, and noting that section 15(1)(a) was not originally relied on by the Council in its decision-making records, I am not satisfied that the FOI body has justified its effective refusal of any relevant records on that basis. Accordingly, I believe that the most appropriate course of action is for me to annul and remit this part of the Council’s decision and direct it to undertake a fresh decision-making process in respect of the applicant’s request for particular witness statements referenced in his original request.

Section 30(1)(a)

Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the records concerned could 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. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of the particular records concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable.

A record that is exempt under section 30(1) may still fall to be released further to the public interest test set out in section 30(2).

Submissions

As noted above, the Council is continuing to rely on section 30(1)(a) in respect of 89 pages of records. In its submissions, it said that while the complaint is progressing, it remains under investigation by the PPC. It outlined a number of investigative steps which remain to be completed. It said that it is difficult to provide an estimation of when an opinion is likely to be formed by the PPC and a decision made by the Council in relation to the matter.

It provided high level detail in respect of the information which has been shared with the applicant to date in respect of the complaint. It said that the applicant has been furnished with “all documentation that will be provided to the PPC in order for it to carry out its final deliberations in respect of the complaint”. The Council said that the applicant sought additional documentation and while it is not standard procedure for same to be furnished, an exception was made in this instance and the records were released to the applicant. This further release occurred during the course of this review.  

The Council said that section 57(3) of the 2007 Act requires the PPC to keep the complainant informed of all decisions made under that legislation in relation to the complaint. It provided this Office with a copy of its PPC procedures in this regard. It said that while the procedures do not set out in detail the information or documentation that are to be shared with the parties, its practice is to supply any information furnished to it during the course of its investigations in line with the principles of fair procedures and natural justice.

The Council’s position is that the remaining records are exempt on the basis of section 30(1)(a). It said that the investigation remains ongoing and that release of the documents before the investigation has concluded could discourage the relevant parties, particularly the complainant, from being able to communicate in confidence with the PPC and the Council. It said that it is obliged to uphold the right to privacy, not only of those medical practitioners who may be subject to a complaint, but also of any witness who has engaged with the PPC as part of the investigative process.

The Council said that as the initial complaint investigation stage is being conducted by the PPC in private, it is necessary to allow the investigations and deliberations to proceed in private without the potential risk of the process being undermined by reason of the disclosure of the remaining documents requested by the applicant. It noted that if the documents are released under FOI, the Council will no longer retain control over how those documents are used.

It said that it has a duty to protect the interests of the general public in their interactions with registered medical practitioners and that this is done through the maintenance of the Register of Medical Practitioners and through investigating complaints and holding Fitness to Practice Inquiries, where appropriate. It said that in order to conduct such investigations, there is an expectation that during the investigation process, the Council will protect the right to privacy of members of the public, medical practitioners and all those whose personal information is submitted to the Council as directed by the PPC. It said that release of the records before the investigation concludes may discourage certain third parties and/or potential witnesses from being able to communicate in confidence with the PPC and Council.

In his application to this Office, the applicant said that the Council has not presented a reasonable and sustainable argument that the release of available records will have an effect on their investigation that is both significant and adverse. He said that the Council has not identified potential harm. I wish to comment briefly on the applicant’s reference to significant and adverse effects. This is the standard associated with section 30(1)(b) of the FOI Act. It is important to note that section 30(1)(a) requires a lower standard; the question is whether release could reasonably be expected to prejudice the effectiveness of relevant functions rather than have a significant, adverse effect (my emphasis).

The applicant made specific submissions in respect of certain actions of the Council which I will consider in further detail below. He also submitted that the Council’s refusal of his request indicates that it does not believe that the FOI Act applies to it. He said it may believe that as long as it can argue that it holds an investigation open, it is free to ignore its obligations under the FOI Act. He said that the Council ought to consider every document and its release, redaction, or retention on its individual merits. The applicant said that the Council has not done this and therefore is in breach of the FOI Act.

Analysis

At the outset, it is important to note that this Office has no role in considering the appropriateness or effectiveness of the Council’s procedures for investigating complaints. Rather, I am confined to considering whether disclosure of the records at issue could reasonably be expected to result in the relevant harms.

I am satisfied that the records in question relate to an investigation conducted by an FOI body and therefore relate to a function falling within the scope of section 30(1)(a). Within that section, two potential types of “prejudice” or harm are envisaged. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the “effectiveness” of the relevant function or the “procedures or methods employed for the conduct thereof”. The question at issue is whether the release of the outstanding records could reasonably be expected to prejudice the effectiveness of such investigations or the procedures or methods employed for their conduct.

I have carefully considered the submissions received and the contents of the records at issue. Generally speaking, I can accept that if a complainant was discouraged from being able to freely communicate with the Council and the PPC, this could reasonably be expected to prejudice the effectiveness of the processes employed for the conduct of investigations. While I note that the applicant has been provided with certain information and copies of correspondence between the complainant and the Council, I must also consider that release under the FOI Act effectively amounts to release to the world at large. It seems to me that such an effectively wide release of communications between the FOI body and a complainant could discourage the complainant in this case, or indeed other complainants, from effectively engaging with the Council. I can accept that this in turn would prejudice the effectiveness of the Council’s investigations or the procedures or methods employed.

I have also considered the Council’s submissions in respect of the right to privacy of those engaging with its complaint processes. I would note that section 37 of the FOI Act provides for the mandatory refusal of records the release of which would involve the disclosure of personal information. The Council has not sought to rely on this provision. However, I also accept that the release of personal information relating to a complainant under FOI while an investigation is ongoing could reasonably be expected to prejudice the effectiveness of that investigation or the procedures or methods employed for its conduct.

Aside from correspondence between the Council and the complainant, the FOI body has also refused to release internal case plans and memoranda. I have carefully considered the content of the records in question. While I am again limited in the extent to which I can describe the records, I believe I can say that the records include complaint details, proposed actions and investigations and instructions from the PPC. I note the Council’s position that the investigation remains ongoing. It seems to me that a decision by this Office to release internal case plans and memoranda at this time, while an investigation is ongoing, could reasonably be expected to prejudice the effectiveness of that investigation or the procedures or methods employed for its conduct. It seems to me that if a party subject to investigation by an FOI body has a right to be fully informed at all times of the state of knowledge and proposed actions of the investigating authority, then it would appear to be inevitable that this would impair an investigation.

In respect of the applicant’s arguments that the Council must consider every document and its release, redaction, or retention on its individual merits, I would note that the applicant is generally correct. I must say that if the Council had maintained its position and refused the release of all of the records originally identified, I would have been concerned about the potential “class-based” nature of the refusal. However, I note that it made the decision to release more than half of the documents, albeit outside the FOI process. The remaining records can be classified as either complainant correspondence or internal case documentation. In light of the submissions received, I am satisfied that the Council has considered and justified its refusal of the records which remain at issue. Nonetheless, I would again remind the Council that a claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable.

Notwithstanding the above comments, I am satisfied that section 30(1)(a) applies to the records at issue. However, that is not the end of the matter. I will now go on to consider the public interest test set out in section 30(2) of the FOI Act.

The public interest

Section 30(2) of the FOI Act provides that section 30(1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That provision recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, when considering where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet Case). In its judgment, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Although the Court’s comments were made in a case involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The Council identified a range of factors in favour and against release of the records. In respect of the factors favouring refusal, it said that there is a public interest in protecting the right to privacy of members of the public, medical practitioners and all those whose personal information is submitted to the Council. It said that there is a public interest in parties being able to communicate in confidence with the PPC and the Council, without fear of disclosure in relation to personal or sensitive matters. It said that there is a public interest in the Council being able to perform its functions effectively particularly in relation to the investigation of complaints. It also referenced the public interest in ensuring that public bodies cooperate effectively and follow due process in order to carry out their statutory functions.

In his application to this Office, the applicant said that the Council’s investigation cannot proceed without his input and that he cannot give his input without sight of all relevant documentation. He also made submissions in respect of information which he said the Council obtained without his consent. I am conscious of the sensitive nature of the submissions made and while I will not repeat them in full, I confirm that I have given them careful consideration. The applicant argued that the extent to which the Medical Council exercises particular powers in the conduct of its investigations is a matter of public interest. In subsequent submissions the applicant alleged that the Council obtained information which is not necessary for its investigation. He said that the investigative processes the Council engage in “deserve no particular protection from scrutiny”. He said that where obvious examples of abuse of process are evident, the Council ought to be held accountable and forced to change their practices.

I wish to state a number of important points before I consider the balancing test under section 30(2). Firstly, 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. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, as noted above, release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, the FOI regime is not about granting access to information to particular individuals only and, as noted above, a requester's reasons for making a request are generally not of relevance.

In this case, the applicant has advanced arguments which relate to his status as the subject of the complaint under investigation. While he has essentially expressed a private interest for seeking access to the records, it seems to me that his reasons are reflective of a public interest in ensuring that the complaint investigation process undertaken by the Council is fair and proportionate and that its powers are exercised appropriately. However, I would again note that this Office has no remit to investigate complaints or to adjudicate on how FOI bodies perform their functions generally.

On the other hand, section 30(1)(a) is an express recognition of the fact that there is a public interest in the protection of information the release of which could prejudice certain functions of FOI bodies. It seems to me that there is a significant public interest in ensuring the integrity of the Council’s complaint function, particularly given the potential gravity of the matters under investigation and the impact of findings on those under investigation.

While I accept that the release of the records may serve to further enhance transparency in respect of the Council’s complaint investigation process, it seems to me, having carefully considered the records, that the degree of enhancement would be limited. I note that the Council has released significant documentation to the applicant to date. I have carefully considered the applicant’s arguments in respect of the Council’s powers and actions alleged. While I am limited in the extent to which I can refer to the content of the records, I am not satisfied that the release of the correspondence or internal case documentation at issue would further serve any public interest in ensuring fair and proportionate investigations or the appropriate exercise of legal powers. Again, it is beyond the remit of this Office to adjudicate on the Council’s general performance of its statutory functions.

In my view, in circumstances where the complaint investigation is ongoing, and given my finding that release of the remaining records could reasonably be expected to prejudice that investigation or the procedures or methods employed, I am satisfied that the public interest would, on balance, be better served by refusing access to the records at issue.

In conclusion, therefore, I find that the Council was justified in refusing access to the records at issue under section 30(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I find that it was justified in its refusal of relevant records on the basis of section 30(1)(a). I annul the Council’s refusal of certain requested witness statements and direct it to undertake a fresh decision making process in respect of any relevant records.

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