Cinneadh
Mr. X & The Medical Council
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-159326-F5V7H7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-159326-F5V7H7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Medical Council was justified under sections 35(1)(a) and 37(1) in refusing access to records relating to conditions attached to the registrations of two named medical practitioners
5 June 2026
In a request dated 5 March 2025, the applicant sought access to records relating to the registrations of two named medical practitioners who have had conditions attached to their medical registrations in respect of the prescription of certain medications, as publicly listed on the Medical Council’s register. In particular, he requested access to copies of any final determinations issued by the Medical Council outlining the reasons for the conditions being imposed on the registrations of the practitioners; transcripts of any hearings or meetings related to the practitioners’ cases; minutes of any meetings held between the the Medical Council and the practitioners concerned in relation to the regulatory process that led to conditions being attached; and any correspondence between the Medical Council and the practitioners.
In a decision dated 3 April 2025, the Medical Council refused the applicant’s request under sections 37(1) and 35(1)(a) of the FOI Act. On the same day, the applicant sought an internal review of the Medical Council’s decision. In its internal review decision dated 23 April 2025, the Medical Council affirmed its original decision to refuse access to the records. In its internal review decision, in addition to sections 37(1) and 35(1)(a), the Medical Council also relied on section 35(1)(b) of the FOI Act. On 28 May 2025, the applicant applied to this Office for a review of the Medical Council’s decision on his request.
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 Medical Council, and the correspondence exchanged between the Medical Council and the applicant, and between the applicant and this Office – in particular, the detailed arguments made by the applicant in his request to the Medical Council for an internal review of its initial decision on his request. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
I note that, in the course of his correspondence with the Medical Council, the applicant indicated that any patient details that appear in the records could be redacted. I note that patient material does indeed feature in the records and, per the applicant, any such material may be considered outside the scope of the FOI request and can be withheld by the Medical Council.
In addition, in the course of this review I formed the opinion that certain additional material in the records is outside the scope of the FOI request. I address this issue in more detail below.
This review is solely concerned with whether the Medical Council was justified, under sections 37(1), 35(1)(a) and 35(1)(b) of the FOI Act, in refusing access to the within-scope information contained in records sought by the applicant.
In advance of my substantive analysis in this case, there are a number of preliminary points I wish to make. Firstly, 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.
Secondly, it is important to note 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 the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of certain relevant records is limited.
Thirdly, it should be noted that section 18(1) of the FOI Act 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 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). This Office takes the view that neither the definition of a record under section 2 of the FOI Act, nor the provisions of section 18, envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or ‘dissecting’ of records to such an extent.
I also wish to note that, in his FOI request, the applicant referenced a related previous decision of this Office, in case number OIC-140772-D6W1P2. In that case, a requester had sought access to records relating to a complaint made to the Medical Council. In our decision in that previous case, this Office upheld the Medical Council’s refusal to release the records on the basis of section 30(1)(a) of the FOI Act, relating to prejudice to the effectiveness of tests, examinations, investigations, inquiries or audits of an FOI body. In this case, the applicant argued that his request could be distinguished from that earlier decision, on the basis that the relevant investigative processes of the Medical Council had now been completed, and that adverse findings had been made regarding the practitioners concerned. I wish to note for the avoidance of any doubt that the Medical Council did not rely on section 30(1)(a) of the FOI Act in this case. Accordingly, the question of prejudice to the effectiveness of its investigations, etc, does not arise as part of this review.
Finally, I note that in its submissions the Medical Council referenced the General Data Protection Regulation (“GDPR”) in support of its position that the records should be withheld. Specifically, it stated that to release the records “….would be considered a blatant disregard for [the GDPR]” and a “…failing on behalf of the Medical Council in our duty to all stakeholders who engage with us”. I wish to note that any reliance on the GDPR, or data protection law generally, by a public body in response to an FOI request is misguided. For one thing, the GDPR contains an express provision (in Article 86, as well as the implementation of that Article in section 44 of the Data Protection Act 2018) for the disclosure of personal data in official documents. In addition, the FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue.
The records at issue
There are two separate sets of records at issue in this case, both of which were scheduled separately by the Medical Council. Each set of records refers to one of the medical practitioners to whom the applicant’s FOI request relates. For the purposes of this review, I will refer to the two sets of records as the “Schedule A” and “Schedule B” records. All of the records in both schedules were withheld in full by the Medical Council under sections 37(1), 35(1)(a) and 35(1)(b) of the FOI Act.
The Schedule A records are as follows:
• record 1 (pages 1-4) – Minutes of two Medical Council Preliminary Proceedings Committee (“PPC”) meetings dated 5 September 2017 and 14 September 2022
• record 2 (pages 5-72) – Transcript of a Medical Council Fitness To Practise (“FTP”) Committee Inquiry heard on 24 February 2020
• record 3 (page 73) – Undertaking given by the medical practitioner dated 24 February 2020
• record 4 (pages 74-82) – Correspondence exchanged between solicitors for the Medical Council and for the practitioner, dated between 4 January 2018 and 21 February 2020
• record 5 (page 83) – Production Summons dated 24 October 2017, requiring the practitioner to provide certain documents to the Medical Council’s Fitness to Practice Committee
• record 6 (pages 84-89) – Notice of Intention to hold an Inquiry, issued by the Medical Council to the practitioner (undated)
• record 7 (pages 90-92) – Correspondence exchanged between solicitors for the Medical Council and for the practitioner, dated between January 2018 and 21 February 2020 and 23 October 2023
• record 8 (pages 93-95) – High Court Order dated 6 November 2020
• record 9 (pages 96-111) – Correspondence exchanged between the Medical Council and the practitioner, dated between 19 December 2024 and 21 February 2020 and 23 October 2023 and 9 January 2025.
• record 1 (pages 1-163) – Monitoring records relating to the practitioner (internal Medical Council correspondence, correspondence exchanged between the Medical Council and the practitioner, and between the Medical Council and the representatives of the practitioner, dated between 25 October 2023 and 27 November 2024)
• record 2 (pages 164-165) – Minutes of a meeting of the Medical Council dated 15 and 16 December 2015
• record 3 (page 166) – Note of telephone calls exchanged between the Medical Council and the practitioner’s representatives, dated 28 June 2018
• record 4 (pages 167-194) – Updated FTP Committee report in relation to the practitioner (undated)
• record 5 (pages 195-221) – Three FTP Committee reports in relation to the practitioner, dated 31 March 2023, 19 March 2025 and 25 June 2018
• record 6 (pages 222-227) – Transcript of FTP Committee Inquiry, dated 5 November 2019
• record 7 (pages 228-273) – Transcripts of two FTP Committee Callover hearings, dated 5 November 2019 and 1 March 2023
• record 8 (pages 274-476) – Transcripts of FTP Committee hearings, dated 29 March 2023 and 30 March 2023
• record 9 (pages 477- 584) – Transcripts of FTP Committee hearings, dated 10 May 2023, 14 June 2023 and 5 March 2025
• record 10 (pages 585-743) – Transcripts of FTP Committee hearings, dated 25 June 2018 and 12 July 2018
• record 11 (pages 744-883) – Correspondence exchanged between the Medical Council and the practitioner, and the parties’ legal representatives, dated between 4 July 2017 and 16 January 2025
• record 12 (pages 884-885) – Minutes of a meeting of the Medical Council dated 14 June 2023.
As noted above, with the applicant’s agreement any material in the records that relates to patients of either practitioner can be excluded from the scope of this review, and it is in order for the Medical Council to withhold this information from release.
Furthermore, in the course of conducting this review I formed the preliminary view that certain additional information in the records is outside the scope of the review, as it does not relate to the subject matter of the FOI request – in other words, it is not related to the attachment of conditions to the registration of either practitioner with particular regard to their prescription of certain medications. I sought the views of both parties in relation to this matter. In response, the Medical Council indicated that it concurred that certain material that it had initially identified as coming within the scope of the request was, in fact, outside its scope. No further submissions were received from the applicant on this point.
I am satisfied that the relevant material is indeed outside the scope of the FOI request and, accordingly, it will not be examined as part of this review and is not subject to release on foot of the request. I take this view in respect of the following material in the records.
• Schedule A records:
o pages 3-4 of record 1
o records 2-6
o page 90 of record 7.
• Schedule B records:
o pages 1-4, 68-75, 83, 118-124 and 129-163 of record 1
o pages 215-221 of record 5
o pages 567-584 of record 9
o record 10
o pages 744-745, 758-759, 778-789, 794-798, 810-827, 834-837, 850-854 and 866-883 of record 11.
Section 37(1)
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the legislation details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition. Of note in the current case, these include at category (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and at category (iii), information relating to the employment or employment history of the individual.
In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In his application to the Medical Council for an internal review of its initial decision on his FOI request, the applicant made a number of arguments in support of his position that the records should be released. In relation to section 37(1), the applicant argued that, while section 37(1) protected personal information generally, such protection was overridden by section 37(2)(c) of the FOI Act, which disapplies the exemption provided for by subsection (1) of section 37 where “…information of the same kind as that contained in the record in respect of individuals generally…is available to the general public”. The applicant argued that the fact and nature of the conditions imposed on the registration of the two practitioners is already a matter of public record. He stated that the Medical Council’s own register discloses that the two practitioners have had conditions imposed relating to their prescribing of medications. He argued that the existence and subject matter of the restrictions (ie. relating to the prescription of certain medicines) is therefore already in the public domain. The applicant argued that the release of the records would be consistent with the public’s right to know how decisions are made in the regulation of medical professionals. Furthermore, the applicant argued that, to the extent that personal information appeared in the records that was not already in the public domain, same could be redacted, and stated that the Medical Council had not appeared to consider this possibility.
In its submissions regarding section 37(1), the Medical Council stated that the record contained the information of third parties who are not employees of an FOI body. In addition to patients of the practitioners (information in relation to whom – as noted above – is outside the scope of this review with the applicant’s agreement), the Medical Council stated that these third parties include the parents of some patients, the original complainants in the cases of both practitioners, external solicitors and legal assessors, expert medical witnesses and the practitioners in question. The Medical Council stated that some records also contain medical information relating to the health of one of the practitioners who are the subjects of the FOI request. The Medical Council argued that, as the release of the records would entail releasing all of the above categories of information, all of which it stated came within the definition of personal information, the records should be withheld. In relation to the applicant’s arguments regarding the possibility of redacting and part-releasing the records, the Medical Council stated that, in respect of some of the records (in particular those that comprise the minutes of meetings), redacting the personal information of individuals would entail such redaction as to “dilute the message” and render the remaining information confusing for the reader.
I have examined the records at issue in light of the above arguments of the parties, and find as follows. Firstly, I fully accept that for the purposes of section 2 of the FOI Act, much of the material in the records is personal, either to the medical practitioners to whom the records largely relate, but also to certain third parties such as the parents of patients, the individuals who initially made complaints against the practitioners and witnesses in the relevant FTP hearings. In addition, certain records relating to one of the relevant practitioners contain information relating to the individual’s medical history, and this is clearly also personal information for the purposes of category (i) of the 14 specific categories of personal information outlined in section 2 of the FOI Act. I fully accept that this information comes within the scope of section 37(1) of the FOI Act. Insofar as the information in the records relates to the practitioners themselves, I am satisfied that it is not excluded from the definition of personal information provided for in section 2 of the FOI Act. This information does not relate to the practitioners in the performance of their official functions as employees of an FOI body (the Health Service Executive), but rather goes to their competence, ability and fitness to practice as doctors.
Indeed, I take the view that a significant majority of the information in the records, relating as they do to the fitness to practice of the relevant practitioners, can reasonably be characterised as the personal information of those practitioners. I make this finding in light of category (iii) of the 14 categories of personal information outlined in the definition of personal information at section 2. To my mind, the vast majority of the information in the records relates to the employment or employment history of the individual practitioners. On this point, I wish to note that I accept the Medical Council’s arguments regarding the possibility of releasing the records with personal information redacted. My view is that redacting the records to remove the personal information of the two practitioners, as well as the personal information of other individuals, would essentially render the resulting copies of the records misleading, if not meaningless. My comments above in relation to section 18 of the FOI Act refer.
However, that is not the end of the matter as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that subsections (a), (b), (d) and (e) of section 37(2) do not apply in this case.
Section 37(2)(c) provides that section 37(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”. As noted above, the applicant argued that, as the fact and nature of the conditions imposed on the registration of the two practitioners is a matter of public record, subsection (2)(c) of section 37 operated in this case to disapply section 37(1).
I note that, in the High Court case of Industrial Development Agency (Ireland) v The Information Commissioner [2024] IEHC 649 (“the IDA case”), Phelan J addressed section 37(2)(c) in her Judgment. In that case, the IDA had argued that the name of a company that incorporated the name of an individual was personal information, and as such should be exempt from release under section 37(1). Rejecting this argument, Phelan J stated that:
“…even if information was considered to constitute personal information within the meaning of s. 37(1) by disclosing the identity of a natural person as opposed to a company, the fact that the information is publicly available triggers the operation of s. 37(2) to permit disclosure of the information in question. I do not read ss. 2 and 37 of the 2014 Act as precluding the disclosure of information already in the public domain and a matter of public record”.
Applying the High Court’s reasoning to this case, it is therefore the case that section 37(2)(c) operates to disapply section 37(1) in respect of any information in the records that might be said to be in the public domain. It should be noted, however, that this applies only to specific information in the records that replicates information that is publicly available.
In this case, the primary source of relevant information that appears to me to be publicly available is a note on the entry on the Medical Council register (which is searchable by practitioner name and registration number on the Medical Council website) relating to the conditions attached to the registration of one of the relevant practitioners (information relating to whom appears in the Schedule A records). This is information that it seems to me corresponds to certain aspects of the applicant’s FOI request, namely the conditions attached to that practitioner’s registration. I would note that it appears the second practitioner named in the FOI request (information relating to whom appears in the Schedule B records) is no longer practicing medicine, and no information in relation to this individual currently appears on the publicly available Medical Council register.
In relation to the within-scope Schedule A records, I am satisfied that the information therein contains considerably more detail and information regarding the conditions attached to the practitioner’s registration, and the circumstances in which those conditions were attached, than appears in the note on the publicly available entry for that practitioner on the Medical Council website. I am therefore satisfied that the fact that the conditions which are attached to the practitioner’s registration is information that is publicly available on the Medical Council website does not trigger the application of section 37(2)(c) to the within-scope information in the Schedule A records.
In addition, I note that the practitioner to whom the Schedule A records pertain has been the subject of media coverage which relates to the subject matter of the FOI request. For example, an article in the Irish Times dated 26 February 2026 reports on an FTP hearing held in relation to the practitioner’s prescription of the relevant medications. While the media coverage contains a significant amount of detail regarding the FTP hearing, it should be noted that the relevant within-scope Schedule A records do not include a transcript or note of that particular hearing. I am therefore satisfied that the relevant media coverage does not place into the public domain any of the information in the within-scope records, such as would trigger the application of section 37(2)(c) to that information.
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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act 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) of the FOI Act provides that, subject to the legislation, 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 no constraints are placed on the uses to which a record released under FOI can be put. With certain limited exceptions provided for in the legislation which are not relevant to this case, 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 FOI 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) which provides that in performing any functions under the FOI 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 (“the Enet case”). 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 his request to the Medical Council for an internal review, although the applicant did not directly addressing section 37(5)(a), he did outline his view that the release of the records is “…consistent with the public’s right to know how decisions are made in the regulation of medical professionals.”
In its submissions, the Medical Council did not specifically address section 37(5)(a). However, it did outline (in its submissions on section 35(1) and the associated public interest test in section 35(3)) that it had identified relevant public interest factors both for and against the release of the information at issue. I consider that these are equally applicable in the context of the public interest test in section 37(5)(a). In favour of release, the Medical Council identified the public interest in members of the public exercising their rights under the FOI Act and in members of the public having confidence in regulatory bodies and the decisions they make. Against this, in favour of withholding the information at issue the Medical Council identified the public interest in protecting information which has been given in confidence; the public interest in protecting personal information which may be held by a FOI bodies; and the public interest in ensuring that the Medical Council can conduct effective investigations and inquiries by gathering as much information as possible from all relevant stakeholders.
I have considered where the appropriate balance of the public interest might lie in this case, and find as follows. I would note firstly that 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 legislation (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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
I would certainly accept that a public interest exists in the release of the information in the records. As noted above, the applicant argued that release of the records would be “…consistent with the public’s right to know how decisions are made in the regulation of medical professionals”. I am not entirely convinced that any such “right”, per se, exists. At the same time, I fully agree that there is a public interest in the release of information that goes to the manner in which such decisions are made. I also accept that the release of the information at issue would further this public interest.
I also take the view that a more significant public interest exists which was not explicitly raised by either party. This is the public interest in members of the public being aware of conditions attached to the registration of the relevant practitioners, so that they can decide whether they wish to be treated by those practitioners or not. Indeed, it seems to me that this is arguably the entire purpose of such conditions being made publicly available. On this point, I consider that the publication of the relevant information on the Medical Council website essentially fulfils this public interest, by enabling the public to check for conditions attached to the registration of the relevant practitioners (or indeed any other practitioner operating in the State). I do not take the view that the release of the information at issue in the records would further this public interest to any significant degree.
In relation to the public interest effectively identified by the applicant, I accept that the release of the records would further same. On the other hand, my view is that much of the information at issue in the records is of an inherently sensitive and private nature and I must regard its release as being effectively, or at least potentially, to the world at large. I have found above that the relevant information is not the same information as that which is already in the public domain in relation to the matter. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant practitioners and the other individuals whose personal information appears in the records. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the Medical Council was justified in refusing access in full, under section 37(1) of the FOI Act, to the within-scope information in the records. In those circumstances, I am not required to examine whether the same material is also exempt under section 35(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Medical Council’s decision. Noting that I have found certain information in the records to be outside the scope of the FOI request, and not subject to release on foot of this review, I find that the Medical Council was justified in withholding the remainder of the information in the records under section 37(1) of the FOI Act.
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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Neill Dougan
Investigator