Decision
Mr. K & The Medical Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: OIC-162752-W8X7H5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-162752-W8X7H5
Published on
Whether the Council was justified in refusing access, under sections 15(1)(f), 30(1)(a), 31(1)(a), 36(1)(b), 37(1), to copies of reports, audits, and review documents associated with procurement practices for the period 01 January 2024 to 04 August 2025
30 July 2026
In a request dated 04 August 2025, the applicant sought access to copies of any reports, internal audits, or other such review documents associated with procurement practices at the Council for the period 01 January 2024 to the date of the request. On 01 September 2025, the Council part-granted the applicant’s request. It identified three records, one of which it released in full and two it refused under sections 31(1)(a) and 36(1)(b) of the FOI Act. On 04 September 2025, the applicant requested an internal review of the Council’s decision. On 12 September 2025, the Council issued its internal review decision in which it varied its original decision. It withdrew its reliance on section 36(1)(b) and refused the records under section 30(1)(a) instead. It also identified a fourth record relevant to the applicant’s request which it refused under section 15(1)(f). On 19 September 2025, the applicant applied to this Office for a review of the Council’s decision.
During the course of this review, a further three relevant records were identified by the Council. It argued that one of these records was exempt under section 31(1)(a) and released the other two in full, along with another record which access to had previously been refused. Three submissions were also received from the Council during this review in which it withdrew its reliance on sections 15(1)(f) and 30(1)(a). It also limited the application of section 31(1)(a) to certain information in one record which it had previously refused in full and argued that certain information in the records was also exempt under sections 36(1)(b) and 37(1). The applicant was put on notice of these new material issues and was invited to provide a submission in response. He declined to do so. However, one submission was previously provided by him along with his application to this Office.
Due to the nature of information in the records at issue, I notified a third-party service provider (Person A) of the review and invited them to make submissions. One submission was duly received from Person A in response.
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 also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
During this review, the Council released records 1 and 7 to the applicant in full. Having examined the records thoroughly, I have also decided to exclude record 6 from the scope of this review as it as an exact duplicate of record 3 which the Council previously released to the applicant in its original decision.
Accordingly, this review is solely concerned with whether the Council was justified in refusing, in whole or in part, records 2, 4, and 5 under sections 31(1)(a), 36(1)(b), and/or 37(1).
Before I address the substantive issues arising, I would like to state that, 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 some of the information at issue is limited.
Section 31 – Parliamentary, Court and Certain Other Matters
The Council refused record 5 in full under section 31(1)(a), as well as a paragraph five and the first six words at the start of paragraph six of record 2.
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
• Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• Confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The concept of "once privileged always privileged " applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. For advice privilege to apply, the communication must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, this Office is of the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
In its submissions to this Office, the Council specified that it wished to rely on legal advice privilege. It said that record 5 is a confidential communication between a client and their external legal adviser in a situation where the external legal adviser has been retained for giving legal advice and is acting in a professional capacity when giving that legal advice in writing. It said that the sole reason for the creation of and existence of record 5 is for the external legal advisor to deliver written legal advice that it had requested. It said that it, as a client, has not lost or waived the legal privilege attaching to the legal advice in this record. It also extensively referred to guidance published by this Office on section 31(1)(a), as well as several previous decisions of this Office, which I do not intend to repeat.
The Council said that it had considered this Office’s guidance on section 31 and decided to only apply section 31(1)(a) to paragraph five and the first six words at the start of paragraph six of record 2. It argued that references to having obtained legal advice is itself covered by legal professional privilege. In support of this, it quoted from guidance published by the Law Society of Ireland and argued that legal advice privilege arises in respect “of a confidential communication or a continuum of communications, or a reference to such communications [emphasis added], which takes place between a professionally qualified lawyer and a client.” It said that the legal advice referenced in record 2 was provided by a professionally qualified lawyer to a client.
In his application to this Office, the applicant wrote that, while it appears that some aspect of record 2 may be based on legal advice received, that the report itself is not legal advice, is not privileged, and would not be exempt from production in proceedings in a court.
Record 2 is a memo, while record 5 is an attachment to this memo. Having examined the record, it is evident that record 5 is a piece of legal advice provided to the Council from an external legal adviser acting in their professional capacity. I am satisfied that it is a confidential communication between a client and their legal adviser for the purpose of giving legal advice and that it would be exempt from production in proceedings in a court on the ground of legal professional privilege. I find that section 31(1)(a) applies to record 5 on this basis.
Contrary to the Council’s assertion, I do not accept that a mere reference to having obtained legal advice is covered by legal professional privilege. That being said, while legal professional privilege applies to communication between a client and a legal adviser, it can extend to cover direct references in other communications if it reveals the nature of the advice sought or given. After careful consideration, I accept that the release of the first ten words in paragraph five would reveal the nature of the legal advice sought by the Council in this instance. Apart from this, I am not satisfied that the remainder of the information identified by the Council would disclose the nature of advice sought or given, nor is it evident to me that the nature of any legal advice contained in record 5 can be inferred from this information.
Accordingly, I find that section 31(1)(a) applies to the first ten words in paragraph five of record 2. I find that section 31(1)(a) does not apply to the remainder of the information at issue in paragraph five and six of record 2.
The Council argued that section 37(1) also applied to certain information concerning Person A in records 2 and 4.
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. Section 2 of the Act defines ‘personal information’ as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by the FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the definition provided for under section 2, comprises personal information, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment history of the individual, and (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions, as per Paragraph (I) of section 2. Furthermore, Paragraph (II) section 2 serves to exclude the names of individuals who are or were a service provider of an FOI body from the definition of personal information. A service provider is defined under section 2 as “a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person.”
It should be noted that the exclusions at Paragraph (I) and (II) do not exclude all information relating to staff members or service providers. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant or a service provider to an FOI body in the context of the particular position held or any records created by them while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants or service providers of the right to privacy generally.
Records 2 and 4 contain various forms of employment related information of Person A including their name and that of their business, detailed information on the circumstances surrounding their previous role in the Council, and information on their daily rates and the total amount they received in payments. While this person was employed as a service provider to the Council, I am satisfied that none of this is information which is captured by the exclusion to the definition of personal information at Paragraph (II) outlined above. Therefore, I find that section 37(1) applies on this basis.
Mindful of my obligations under section 25(3), record 2 also contains a limited amount of other personal information relating to other individuals within the Council. Notwithstanding the fact that the Council did claim exemption for this information, I am satisfied that is not of the sort captured by the exclusion at Paragraph (I) and that it constitutes the personal information of these individuals. I find that section 37(1) applies to the following parts of record 2 on this basis:
• The second sentence in paragraph six
• The second sentence in paragraph eight, as well as the six words at the start of the third sentence and the 18 words at the start of the last sentence of this paragraph
• The six words at the end of the second sentence in paragraph 12
Having found that section 37(1) applies, I must go on to consider the other provisions of section 37 which subsection (1) is subject to.
Section 37(2) outlines certain circumstances in which section 37(1) does not apply. Section 37(2)(b) provides that subsection (1) does not apply if the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure. Section 37(2)(c) provides that subsection (1) does not apply if information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public.
In their submissions and communications to this Office, Person A said that they were objecting to the release of any information that discloses their daily consultancy rate, fee arrangements, pricing terms, or related commercially sensitive financial information agreed between them and the Council. They said that they were not objecting to the release of information relating to procurement processes, governance arrangements, approval mechanisms, contract values, and expenditure incurred by the Council in relation to their services. In the circumstances, save for information on their daily rates and fees, I am satisfied that Person A has provided appropriate consent for the remainder of their employment related information at issue to be released in this instance. Therefore, with the exception of the financial information on Person A’s daily rates at the end of paragraph three of record 2, I find that section 37(2)(b) applies thus disapplying section 37(1) to Person A’s personal information in records 2 and 4.
In its submissions, the Council also referred to section 37(2)(c) and stated that a certain amount of information in relation to the circumstances surrounding Person A’s role is already in the public domain. As I have found section 37(2)(b) to be applicable, I do not consider it necessary to address this in detail. However, for the avoidance of doubt, I am satisfied that the information on Person A’s daily rates is not in the public domain and is not the type of information to which section 37(2)(c) applies.
Except for section 37(2)(b), I am satisfied that none of the other circumstances in section 37(2) arise in this instance.
Having found that section 37(1) applies to a limited amount of information in record 2 relating to Person A’s daily rates and to the personal information of other individuals within the Council, I must now consider the applicability of section 37(5) to that information.
Section 37(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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the FOI 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, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the FOI Act places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the Act, such as under section 37(8), FOI 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. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also 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. In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In its submissions, the Council said that it considered the public interest and acknowledged that there is a public interest public interest in the financial and procurement affairs of a public sector body being made generally available to the public. It claimed that the public interest in this respect has been discharged by virtue of the information made available in its Annual Report. It argued that certain personal information is not in the public domain and should not be released, as the private interests of the individual concerned and their right to privacy outweigh any public interest in such further information being released.
In his application to this Office, the applicant said that the records reflect some unorthodox business arrangements in place at the Council which he said have been the subject of some media coverage. He argued that there is a very high public interest in records relating to the proper use of public funds.
While I accept that transparency and accountability in the expenditure of public funds is generally a significant public interest factor in favour of release, I am not convinced that this argument carries any weight in this instance where the information at issue concerns the intimate financial affairs of an individual and other personal information which is of a private nature. It seems to me that the release of this information would not further the public interest on this matter to any significant degree and would instead result in a significant breach of the right to privacy of the individuals concerned, particularly given that release could significantly adversely affect Person A’s financial interests.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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.
Having considered the matter carefully, bearing in mind the strong public interest in protecting the right to privacy, I do not find that the public interest in releasing the information outweighs, on balance, the privacy rights of the relevant individuals. In particular, I have not identified any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that section 37(1) applies to the following parts of record 2:
• Person A’s daily rates at the end of paragraph three
• The second sentence in paragraph six
• The second sentence in paragraph eight, as well as the six words at the start of the third sentence and the 18 words at the start of the last sentence of this paragraph
• The six words at the end of the second sentence in paragraph 12
In light of this finding, I am not required to consider the Council’s claim for exemption under section 36(1)(b).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the Council’s decision. I find that it was justified in refusing access, under sections 31(1)(a) and 37(1), to the following:
• Record 5 in full
• The first ten words in paragraph five of record 2
• Person A’s daily rates at the end of paragraph three of record 2
• The second sentence in paragraph six of record 2
• The second sentence in paragraph eight of record 2, as well as the six words at the start of the third sentence and the 18 words at the start of the last sentence of this paragraph
• The six words at the end of the second sentence in paragraph 12 of record 2
I find that it was not justified in refusing access, under sections 31(1)(a) and 37(1), to the remainder of the records and information at issue which I direct the release of.
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.
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Eoin O’Shea
Investigator