Case number: 170454

Whether the VCI was justified in refusing access to records relating to referrals to the Preliminary Investigations Committee (PIC) and certain reports of the Fitness to Practice Committee (FTPC) under sections 29, 30, 35, 37 and 41 of the FOI Act.  

14 May 2018 

Background

On 5 July 2017 the applicant made an FOI request seeking access to information relating to PIC referrals.  She wanted to know what the complaints were about for the previous 5 years.  She also sought access to FTPC reports for five named individuals as well as a copy of a report referred to in the VCI's 2016 annual report.  She accepted that the name of the vet in that report would be redacted.  On 4 August 2017 the VCI refused the applicant's request.  The first part of the request, relating to the PIC referrals, was refused on the basis that it was not a valid request as it did not identify a particular record, but rather was a broad request for information.  The decision went on to note that if the applicant's request was for the PIC Referrals, then it was being refused under sections 30 (functions and negotiations of FOI bodies) and 35 (information obtained in confidence) of the FOI Act.  The second part of the request, relating to the FTPC reports, was refused on the basis of sections 29 (deliberative process), 30 (functions and negotiations), 35 (confidence) and 37 (personal information).  

The applicant sought an internal review of that decision.  She clarified, in relation to the PIC referrals, that she understood that the VCI Registrar was required to keep records of the details of complaints made and that she would like access to these records if they exist.  She also raised an issue in relation to the jurisdiction of the FOI Act in relation to her request and made submissions on exemptions cited by the VCI.  On 4 September 2017 the VCI made a decision to refuse the applicant's request for access to the PIC records on the basis that it was a request for information and not records.  In relation to the FTPC reports, access was refused on the basis of sections 41 (enactments relating to non-disclosure of records), 29 (deliberative process), 30 (functions and negotiations), 35 (confidence) and 37 (personal information).  

The applicant subsequently applied for a review to this Office.  

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the VCI and the applicant as described above. I have also had regard to the correspondence between this Office and both the VCI and the applicant on the matter, and to the contents of the records at issue.


Scope of the Review

This review is concerned solely with whether the VCI was justified in its decision to refuse access to records relating to complaints made to the PIC and to six FTPC Reports.  


Preliminary Issues

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request. 

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs. 

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. 

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. 


Analysis and Findings

Section 42 of the FOI Act

The applicant has requested that this Office refer the matter to the High Court on the basis that the documents requested are court documents and therefore should not fall to considered under the FOI Act.  Based on the reasoning which follows, I am satisfied that this is not an appropriate case for the Commissioner to use his discretion to refer a question of law to the High Court for determination under section 24(6) of the FOI Act.    

Section 42 of the FOI Act states that the Act shall not apply to, among other things, a record held by the courts.  The applicant's argument is that the disciplinary functions of the VCI amount to the exercise of judicial power for the purposes of the Constitution.  She goes into some considerable analysis regarding the decision of the VCI to hold its disciplinary proceedings in private and much of her submissions relate to the private nature of these hearings.  

I do not propose to address the applicant's submissions regarding the holding of the disciplinary proceedings in private, save insofar as it relates to the application of section 42 of the FOI Act.  It is important to note that this Office has no role or jurisdiction to address how public bodies perform their functions generally.  It is my function to address whether or not they have justified any claims for exemption under the FOI Act and so I will not comment on the practices of the VCI with regard to their disciplinary functions.  

With regard to section 42 of the FOI Act, the wording of that section is, in my view, perfectly clear.  It states that the Act shall not apply to a record held by the courts.  I believe that the use of the word the provides clarity on the extent of the application of this section.  It is not intended to extend the application of the section to all bodies with a quasi judicial function.  The Courts are defined in Article 34 of the Constitution as comprising Courts of First Instance, a Court of Appeal and a Court of Final Appeal.  I do not think that a committee of the VCI could be classified as coming within any of those categories.  Consequently I find that section 42 of the FOI Act does not apply.  

PIC Referrals

Both the initial decision and the internal review decision stated that the applicant's request does not fall within the ambit of the FOI Act.  The VCI stated that the FOI Act provides for access to records and as the applicant's request was for access to information, there was no obligation, or even jurisdiction for it, to compile the information into a tabular or other narrative format in order to deliver the requested information to the applicant.

This Office takes the view that the FOI Act provides for a right of access to records held by FOI bodies (section 11) and that, further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

Generally speaking, requests for information, as opposed to requests for records, are not valid requests under the Act.  The FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

The FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. 

Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.  However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act. 

In this case, the applicant acknowledged when requesting an internal review that her original request may not have been sufficiently clear and she stated that her request was for the records of the details of every complaint made.  As I stated above, an FOI body must take reasonable steps to identify a record.  The VCI stated in submissions to this Office that it was "simply not relevant that there may or may not be records which contain the information requested (however liminally)" by the applicant as the request was not a request within the ambit of the Act.  I do not accept this position, although I agree with the VCI's position that there is no obligation under FOI on it to compile the information from hardcopy files.  In my view, the applicant clarified which records she was looking for and it then became incumbent upon the public body to consider whether it holds those records, which it appears it did not do based on its position that the request made was not a valid one.  According to the applicant's internal review request, the records sought comprise the details of every complaint made, of which the VCI Registrar is statutorily obliged to keep a record.  It seems to me that it is entirely possible that "what the complaints are about" can be found in the records of the complaints made.  If this is not the case, it would of course be open to the VCI to refuse the request on the basis that it did not hold the records sought.  

The VCI went on to state that, without prejudice to the above position, it would rely on the same exemptions applied to the FTPC reports and for the same reasons.  Those exemptions are sections 29, 30, 35, 37 and 41 of the FOI Act.  However, exemptions relied upon under the FOI Act can only be so relied upon by reference to each individual record.  As no records were considered in respect of this aspect of the request, then the VCI cannot, in my view, apply blanket exemptions to records that it did not consider at first instance.  

I therefore annul the VCI's decision that this aspect of the applicant's request is not a valid request under the FOI Act.  I remit this part of the applicant's request back to the VCI and direct that a fresh decision making process be undertaken in respect of any records held which contain details of complaints made to the Preliminary Investigations Committee.    

The VCI has given this Office no indication as to the number or extent of the "complaint records" held.  If it is the case, for instance, that the records are voluminous and/or that the redaction of personal information from them would require the retrieval and examination of such a number or kind of records as to cause substantial and unreasonable interference with or disruption of the VCI's work, section 15 of the FOI Act may be relevant.  


Five FTP Reports

The applicant named five individuals who were the subject of FTPC hearings and she requested copies of the reports of those hearings.  The VCI, as noted above, relied on sections 29, 30, 35, 37 and 41 of the FOI Act in respect of these reports.  It seems to me that section 37 is the most relevant of those exemptions and so I will deal with that in the first instance.  

Section 37 - personal information

Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of 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. For the purposes of the Act, personal information is defined 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 Act details fourteen specific categories of information that is personal information, without prejudice to the generality of the foregoing definition, including "(iii) information relating to the employment or employment history of the individual", "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual" and "(xiv) the views or opinions of another person about the individual". 

Having regard to the definition of personal information as set out above, I am satisfied that the contents of the reports contain information relating to the employment of the registered persons, as well as information that would be known only to the individuals, their family and friends and is held on the understanding that it would be treated as confidential.  Further, I find that information relating to the complainants and any witnesses who gave evidence to the FTPC comprise personal information relating to those individuals.  I find, therefore, that section 37(1) applies to the reports.

Having found that section 37(1) applies to the information, I must go on to consider if any of the additional elements of section 37 serve to disapply that exemption.  Before doing so however, I wish to address, and distinguish, these reports from a recent decision of this Office (160544) that directed release of a redacted FTPC report.  In that case, similar to the final part of the applicant's request in this case, the applicant had requested a copy of a report that been referred to in the VCI annual report.  The applicant did not provide the name of the registered person the subject of the report and release of a redacted copy (with all identifying personal information redacted) was directed on the basis that the remaining contents of the report provided a more detailed account of the nature and facts of the complaint, the issues considered by the FTPC and details of its findings and recommendations. The information disclosed was of a similar nature to that published by the VCI in its 2010 Annual Report, albeit in greater detail.  In this case, however, the applicant has provided the names of the registered persons who are the subject of the reports.  I have considered whether it would be practicable to provide the applicant with redacted copies of the requested reports in accordance with section 18 in this instance.  On balance, I do not believe that it would be practicable to do so.  The applicant is already in possession of the names of the registered persons.  Redacting details from the reports would therefore serve no purpose and would result in the disclosure of the personal information of those registered persons.  I find that it is not possible to release any of the contents of the reports as the details in the report are inextricably linked to the identities of the registered persons named by the applicant.  That is not the end of the matter however as section 37(1) is subject to sections 37(2) and 37(5) which I will consider below.   

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(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 the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The applicant argues, essentially, that there is a public interest in ensuring that the VCI is open about, and can be held accountable for, how it carries out its functions, specifically in relation to its disciplinary functions. I agree.  The FOI Act itself recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. It is worth noting that under section 89 of the Veterinary Practice Act 2005, the VCI must publish, on an annual basis, certain details where a registered person is found to have a case to answer, including particulars of the finding and the sanction together with the identity of the registered person.  To some extent, the public interest is therefore already satisfied by this requirement to publish details of those findings.  

Release of some of the reports in this case would further this public interest to an extent, in that they would disclose details of what the FTPC considered before reaching its decision, and indeed in some cases what those decisions were.  However, FOI is concerned with the activities of public bodies generally.  It is not a means by which information about the activities of private individuals, whether working in a professional capacity or not, is intended to be made known to the public at large. 

The FOI Act recognises the public interest in the protection of the right to privacy.  This is evident both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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.  

On balance, I consider that the weight of the public interest in granting access to the reports is not such that it outweighs the public interest that the right to privacy of the third parties, including the registered persons, the complainants and any witnesses or experts, should be upheld.  I find that section 37(5)(a) does not apply.

I find that the VCI was justified in refusing access to these five reports on the basis of section 37 of the FOI Act.  Accordingly, it is not necessary for me to go on to consider whether or not any of the additional exemptions relied upon are applicable in relation to these 5 records.  

I will now consider the final aspect of the applicant's request, that of the report referred to in the VCI's 2016 annual report.  

 

FTPC Report referred to in the VCI 2016 annual report

The applicant's request notes that the 2016 annual report references a decision by the Committee not to pursue an inquiry because of insufficient evidence.  She requests a copy of that report  and accepts that the name of the vet will be redacted.  As the applicant accepts that the vet's name will be redacted, I intend only to consider the application of the exemptions to the balance of the report.  

Section 37 - personal information

For reasons similar to those set out above, I find that more than just the name of the vet in this instance amounts to personal information in accordance with the definition in section 2 of the FOI Act.  So too does any identifying details of any registered persons, to include registration numbers, addresses, veterinary clinic details and representative details.  Any information relating to the complainant, including name, address, the name and description of the complainant's animal, as well as details of any witnesses is also the personal information of those third parties and section 37(1) applies to this information.

Unlike the reports described above where the applicant has already provided the names of the registered persons the subject of the reports, I find that in this case it would be practicable to redact all of the foregoing personal information such that the individuals would not be identified.  Having carefully considered the contents of the report, I am satisfied that the release of a redacted version, with the redaction of the information above that I have found to be personal information, would not involve the disclosure of personal information relating to identifiable individuals. Rather, it would involve the disclosure of a more detailed account of the nature and facts of the complaint, the issues considered by the FTPC and details of its findings and recommendations. Indeed, the information to be disclosed would be of a similar nature to that published by the VCI in its 2016 Annual Report, albeit in greater detail. I find, therefore, that section 37(1) does not apply to the remainder of the report, with the redaction of the information above that I have found to comprise personal information.
 
I find that none of the circumstances set out at section 37(2) of the FOI Act apply to the balance of the report and, I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned so that section 37(5)(b) does not apply.  For the same reasons as those set out above, I find that the weight of the public interest in granting access to the redacted information is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.  I find that section 37(5)(a) does not apply to the information to be redacted.  

Having found that section 37(1) applies to certain personal information contained in the report, I have no need to consider the applicability of the remaining exemptions cited to that particular information. However, I must now proceed to consider if the remaining exemptions apply to the balance of the report.  

 

Section 29 - deliberative process

Section 29(1) allows for the refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations) and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. 

The VCI argued that the report contains matters relating to the deliberative process of the FTPC and that granting the request would be contrary to the public interest as the private hearing process will be entirely frustrated and would risk the withdrawal of voluntary co-operation by witnesses and registrants.  

It should be noted at the outset that the public interest test at subsection (b) is a higher one than the public interest balancing test contained in other provisions of the FOI Act. It must be shown that the granting of the request would be contrary to the public interest. In circumstances where the version of the record at issue contains no identifying personal information, I fail to see how release of the report could possibly frustrate the private hearing process. I find, therefore, that section 29 does not apply.  

Section 30 - functions and negotiations of FOI bodies

Section 30(1)(a) is a discretionary exemption that applies where the release of a record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the FOI body or the procedures or methods employed for the conduct of such tests etc.

The VCI argued that the release of the report could reasonably be expected to prejudice the effectiveness of the FTPC inquiry process. Among other things, it argued that registered persons would be less likely to co-operate with the VCI and to give evidence at inquiries if it were known that any FTPC report produced could subsequently be accessed by a third party.  It also argued that members of the public would be less likely to make a complaint.  Concerns were also raised that if the report was released it could be used in defamation or other civil proceedings as there is limited legal privilege in respect of the proceedings.  It also argued that members of the public and witnesses would therefore be less likely to make a complaint and/or co-operate with the Committee.  

I have some difficulty in accepting, as a matter of course, that the disclosure of FTPC reports could reasonably be expected to cause each of the various categories of parties outlined above to refuse to assist or give evidence to an inquiry. Nevertheless, I accept the VCI's argument that the disclosure of full unabridged versions of such reports could reasonably be expected to cause at least some of the parties to be less willing to co-operate.  However, what is at issue here is a redacted version of such a report with the redaction of identifying personal information.  I do not accept that the release of this report, in redacted form, could reasonably be expected to give rise to the harms identified.  The release of a redacted copy of the report elaborates on the details already set out in the annual report.  I find, therefore, that section 30(1)(a) does not apply.  

Section 35 - information obtained in confidence

Section 35(1)(a) provides for the protection of information given to a public body in confidence.  For the exemption to apply, it is necessary to show the following;

  • that the information was given to an FOI body in confidence, 
  • that the information was given on the understanding that it would be treated by the FOI body as confidential,
  • that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
  • that it is of importance to the body that such further similar information should continue to be given to the body. 

Section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers). My reasons for rejecting the VCI's argument that section 35(1)(a) applies are similar to those outlined in respect of section 30(1)(a). In essence, I do not accept that the release of this report, in redacted form, would be likely to prejudice the giving to the VCI of further similar information from the same person or other persons. I find that section 35(1)(a) does not apply.

Section 41 - enactments relating to non-disclosure of records

Section 41(1)(a) of the FOI Act is a mandatory exemption provision that applies where the disclosure of a record is prohibited by an enactment not specified in the Third Schedule to the FOI Act, while section 41(1)(b) prohibits release if the non-disclosure of the record is authorised by any such enactment.  Section 41(1) is not itself subject to a public interest override.

The VCI argued that sections 79 and 89 of Veterinary Practice Act 2005 (the 2005 Act), when read together, are statutory enactments that either prohibit or authorise non-release of the record.  

Section 79 of the 2005 Act requires a copy of the FTPC report to be provided to the person to whom the inquiry relates, while section 89 stipulates that the annual report shall include a report of all matters referred to the FTPC, identifying all relevant particulars such as the name and address of each person affected, term of suspension and conditions attached or removed.  

The VCI's argument, in the main, centred on the fact that those sections do not direct that the actual decision of the FTPC is published, nor is it a requirement that any details are published where there has been a finding but no sanction imposed.  The VCI makes substantial submissions on the intention of the Oireachtas in relation to the question of publication and provides multiple examples of the legislation of other professional disciplinary regimes.  

Section 41 requires a public body to show the specific enactment that either prohibits release, or authorises its non-disclosure.  In my view, neither section 79 nor section 89 of the 2005 Act do this.  It seems to me that the plain language of section 79 provides that the FTPC must make a report of the enquiry and its findings to the VCI and a copy of that report must be sent to the registered person to whom the inquiry relates. In my view, this does not amount to a prohibition on the release of such reports to any other person. Rather, it operates to ensure that the person to whom the inquiry relates is given a copy of the report.  Similarly, section 89 of the 2005 Act imposes a positive obligation to include details in the annual report of FTPC matters where a sanction has been imposed, but I do not see that this prohibits any further release, or authorises non-disclosure.  

I do not accept the VCI's argument that disclosure of the report to any other party under FOI is not permitted by the 2005 Act or that such disclosure would be contrary to that Act.  I find that section 41 does not apply to the redacted FTPC report.  


Decision

I hereby vary the decision of the VCI.  I annul the decision that the request for records relating to complaints made to the PIC was not a valid request under the FOI Act.  I direct the VCI to undertake a fresh decision making process in relation to records containing details of complaints made to the PIC in accordance with the Act.  I affirm the decision to refuse access to the FTPC reports of the five named vets on the basis of section 37 of the FOI Act.  I annul the decision in relation to the sixth FTP report and direct partial release of that record with all identifying information redacted in accordance with the FOI Act.

Furthermore, for clarity, I specify that, subject to sections 24 and 26 of the FOI Act, the statutory time limit for the making of the decision in relation to the PIC records begins within 5 working days of the expiration of the 4 week period available to the VCI 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 applicant 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