Whether the Medical Council was justified in refusing access to an expert report commissioned by it as part of its concluded consideration of the applicant’s complaint against a particular medical professional

24 February 2021

Background

The applicant’s complaint to the Medical Council, as referred to below, arises from very tragic events that I do not intend to set out here in order to protect the privacy of the people involved in this matter. In his FOI request dated 2 June 2020, the applicant sought access to various records held by the Medical Council relating to his complaint against a particular medical professional in relation to the death of his late wife, including an expert report prepared by a named third party (the expert report). The Medical Council’s decision of 30 June 2020 granted the request in part. It relied on section 35(1)(a) (information given in confidence) of the FOI Act in relation to the expert report and on section 37(1) (personal information) in relation to the other withheld records. The applicant sought an internal review of the Medical Council’s decision on 2 July 2020. On 10 August 2020, the Medical Council’s internal review decision affirmed its decision on the request. As well as relying on sections 35(1)(a) and 37(1), it said that it was now also relying on sections 29(1) (deliberative process) and 30(1)(a) (effectiveness of investigations/investigative procedures) of the FOI Act. On 27 October 2020, the applicant applied to this Office for a review of the Medical Council’s decision. He said that he would confine the scope of the review to the refusal of the expert report and also that he was not seeking any personal information about the report’s author.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Medical Council and the applicant. I have had regard to the contents of the record concerned and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether the Medical Council’s refusal to release the expert report was justified under the provisions of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to set out some preliminary points that are relevant to my review.

First, section 25(3) of the FOI Act requires the Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As such, I am limited in the descriptions I can provide of the information that has been withheld.

Secondly, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for that request shall be disregarded. This means that this Office cannot have regard to the applicant’s motives for seeking access to the information at issue, except insofar as those motives reflect what might be regarded as public interest factors in favour of release, a matter I address later in this decision.

Finally, with certain limited exceptions, when a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.E. v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. As such, the fact that the applicant may be aware of the identity of individuals to whom the withheld information relates, does not mean that the information cannot be withheld under the provisions of the FOI Act.

Findings

The Medical Council clarifies that it is relying on various provisions of the FOI Act in relation to the expert report, including section 37(1). Having regard to the report’s contents, it seems to me that this is the most appropriate exemption to consider at the outset.

Personal Information - section 37

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual and (xiv) the views and opinions of another person about the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

The applicant says that the records are merely for his own personal use to better understand the circumstances of and reasons for his wife’s death and help him grieve. For the reasons set out above, I cannot take into consideration the applicant’s reasons for requesting the information, or that he may be aware of some or indeed all of the information contained in the report, or that he is the complainant to the Medical Council. This is because release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.

Having examined the report, I note that it primarily contains information relating to the medical history of the applicant’s late wife. I am satisfied that such information is inextricably linked to information relating to the employment or employment history of the person the subject of the applicant’s complaint to the Medical Council and to views and opinions of other persons about the individual the subject of the complaint. To a lesser extent, personal information relating to the applicant’s late wife is also inextricably linked to information relating to the employment or employment history of other identifiable individuals. I can see that the report contains brief references to the applicant, which amounts to his personal information. However, the references to the applicant are inextricably linked to the personal information of his late wife and other identifiable individuals.

Regulations made under section 37(8) of the FOI Act provide for the release of information about deceased persons to certain categories of requester, such as the next of kin, in certain circumstances. However, such Regulations do not entitle the next of kin to personal information about individuals other than their late spouse or personal information about their late spouse that is inextricably linked to personal information about other individuals, which is the case here.

Although not raised by the applicant, I have considered whether it might be possible to direct release of the report with names redacted. In this respect, 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 am satisfied that even without names, individuals are identifiable from the context and content of the remainder of the report and that any partial release of the report would, of itself, disclose personal information about identifiable individuals. 

Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. As I have noted, personal information relating to the applicant and primarily to his late wife is inextricably linked to that of other individuals (joint personal information). Even if it were feasible to separate out information relating solely to the applicant and/or his late spouse, I would not consider it to be in keeping with the Commissioner’s approach to section 18 in this case to grant access to such parts of the record with third party information redacted.

I find that section 37(1) of the FOI Act applies to the expert report. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that no information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7) and I have explained why I do not consider that personal information relating to the applicant and/or his late wife can be separated from that of other individuals. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

The applicant is dissatisfied with the outcome of the Medical Council’s investigation of his complaint. He says that the expert report was influential in determining that outcome and that he should get access to it as the complainant. He also says, in essence, that the report should be released to ensure that the Medical Council can be held accountable for its examination of his complaint and the subsequent outcome. As noted above, he also wishes to access the report to help him in the grieving process.

I appreciate the importance of the expert report to the applicant. I accept that the report’s disclosure would give him a better insight into and understanding of the Medical Council’s examination of his complaint and its outcome.

This does not mean that there should be no protection of privacy rights of other individuals. I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is dissatisfied with the actions of either the Medical Council or particular individuals. It is also important to note that I do not have any remit to consider, or make findings on, the adequacy of those actions.

I am satisfied that placing the expert report in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant and his late wife i.e. in particular the person the subject of his complaint to the Medical Council and, to a lesser extent, other persons. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the report that, on balance, outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply. In the circumstances, there is no need for me to consider the other exemptions relied on by the Medical Council in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Medical Council’s decision to withhold the expert report on the basis that it is exempt under section 37(1) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Deirdre McGoldrick

Senior Investigator