Whether the Council was justified in its decision to refuse access to records relating to its investigation of certain complaints under sections 29(1)(a), 30(1)(a), 35(1)(a), 37(1) and 41(1)(a) of the FOI Act

05/02/2018

Background

On 27 February 2017, the applicant made complaints to the Council in relation to a doctor and a consultant psychiatrist. These complaints were investigated by the Council's Preliminary Proceedings Committee (PPC). On 18 May 2017, the applicant made an FOI request to the Council for copies of certain records relating to the investigation. She requested the Certificates of Entry in the Register of Medical Practitioners for the doctor and the consultant, the PPC's case plan for conducting its investigation, case reports created by the PPC during the investigation and the responses by the doctor and the consultant to the complaints. The applicant also requested records held by the Council relating to previous complaints and transcripts of a fitness to practice inquiry which took place in 2010.

On 15 June 2017, the Council granted access the applicant's request in part. It refused access to investigation file (C063/17) which relates to the complaints made on 27 February 2017. It stated that its deliberations in relation to these complaints were ongoing and the records are exempt under section 29(1) of the Act. It part-released investigation files (C076/16 and C062/17) which relate to the applicant's previous complaints. It refused to release a number of addresses in these files on the basis that they contain personal information and are exempt under section 37(1) of the Act. The Council released the requested transcripts. On 15 June 2017, the applicant requested an internal review of the Council's decision. On 6 July 2017, the Council affirmed its original decision. On 7 July 2017, the applicant applied to this Office for a review of the Council's decision.

During the course of the review, the applicant confirmed that she did not require the addresses withheld from files C076/16 and C062/17. Also during the review, the Council concluded its investigation and it released six of the nine records contained in file C063/17 to the applicant. The Council refused to release records 4, 5 and 8 which contain responses by the doctor and the consultant to the applicant's complaints. In refusing these records, the Council relied on additional exemptions relating to functions and negotiations of public bodies (section 30), confidentiality (section 35), personal information (section 37) and enactments relating to non-disclosure of records (section 41). This Office informed the applicant of the additional grounds relied on by the Council in refusing records 4, 5 and 8. In response, the applicant argued that these records ought to be released.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties, and to the provisions of the FOI Act 2014.
 

Scope of Review

The scope of this review is confined to whether the Council has justified its decision to refuse access to records 4, 5 and 8 on the basis that these records are exempt under sections 30(1)(a), 35(1)(a), 37(1) and 41(a) of the FOI Act. 
 

Preliminary Matters

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Section 18(1) provides, that "if it is practicable to do so", records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
 

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. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large.

Analysis and Findings

Section 37 - Personal Information

Having examined the records, it seems to me that it is appropriate to consider section 37 of the FOI Act first. 

Section 37(1) of the FOI Act provides that access to a record shall be refused if it 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 an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (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, (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Definition of Personal Information

The Commissioner-�s approach to the definition of personal information has changed since the decisions of the High Court and the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). In the Rotunda case, the Supreme Court held that the Commissioner had erred when, having decided that the information at issue satisfied one of the then twelve (now fourteen) categories specified in the definition of personal information, she also decided that it was necessary for the information to come within the general definition at paragraphs (a) or (b). Fennelly J stated:

-�In reaching that conclusion the Commissioner failed to have regard to the expression -�without prejudice to the generality of the foregoing-�-� That expression, which occurs routinely in statutes, means that what goes before is a general statement, but that, as in this case, in any event, it will suffice for whatever is the relevant statutory purpose to comply with what follows. -�. Thus, the Commissioner erred in imposing any additional requirement. The record in the present case contained personal information if any of it, such as the age of the patient, came within the terms of p.(vi)-�

In considering whether information falls within section 2 paragraphs (a) or (b), the Commissioner may consider the general facts and circumstances of the case and the circumstances in which the information was imparted to and received by the FOI body. The Commissioner accepts that information may fall within (b) even in situations where the FOI body has not given explicit assurances of confidentiality in relation to the information. He has accepted, for example, that in certain circumstances individuals may understand that the information is given to the FOI body for a limited purpose and that such information be held by the FOI body on the understanding that it will be treated as confidential.

The applicant submits there is no Council rule which prevents the release of a doctor's response to a complainant and she states that she is aware of cases in which complainants were provided with copies of responses. The Council states that complainants may be provided with access to the doctor's response and other material in relation to the investigation where directed by the PPC on a case by case basis. It argues that in this case, records 4, 5, and 8 were not released as they contain personal information.
 

I note that there are indications in the records that the authors had expectations that the contents of their responses ought to be treated as confidential. It is clear from records 4, 5 and 8 that the authors took the view that the information which they were providing was sensitive. I accept that they provided their responses to the PPC for a limited purpose i.e. to allow it investigate the applicant's complaints. I also accept, having regard to the content of the records, that they understood that the records would be treated as confidential. I am satisfied that records 4, 5 and 8 contain the personal information of the doctor and the consultant. However, that is not the end of the matter as paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. I note that while the doctor is employed in private practice, the consultant is a member of staff a public hospital and as I understand it, saw the applicant as a public patient.

The exclusion at (I) does not provide for the exclusion of all information relating to staff members of FOI bodies. The Commissioner takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The Commissioner takes the view that it does not exclude personnel records relating to the "competence or ability of the individual in his or her capacity as a member of staff of an FOI body". Record 5 is the response to allegations about the consultant's conduct. I do not accept that any alleged misconduct could be characterised as being for the purpose of the performance of the employee's functions. Accordingly, the qualification on the definition of "personal information" cited above does not apply to record 5.

Section 37(7) provides that access to a record which relates to the requester shall be refused if access 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. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

I am satisfied that the records contain personal information about the applicant. It is possible to extract particular sentences from the records that relate solely to the applicant and her medical history. I have taken account of section 18 of the FOI Act as referred to earlier in this decision. I am satisfied that cutting the records so as to extract the occasional sentence is not practicable and would result in records which are misleading. I find, therefore, that records 4, 5 and 8 are exempt from release on the basis of section 37(1) of the Act subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2)

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the doctors concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5)

Section 37(5) of the FOI Act provides that a request which 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 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 individual concerned. In my view, the grant of the request would not benefit the individuals concerned. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is important to take note of the obiter comments of the Supreme Court in the Rotunda case. Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest." Macken J. in the same case stated that in her view a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Thus, 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.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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.

The applicant argues that when investigating complaints of misdiagnosis there is a public interest that openness and accountability are seen to occur. She argues that in the absence of such openness, cases of misdiagnosis could be covered up and that with no accountability the public will lose confidence in the complaints process.

The Council states that the complaint's procedure is divided into two separate stages: an investigation stage which is conducted in private and a hearing stage which is conducted in public. According to the Council, where the PPC concludes after carrying out an investigation that a prima facia case exists, the case will be referred to the hearing stage. It argues that registrants have a reasonable expectation that details of any complaint made about them would not be made public unless the complaint reaches the hearing stage and it argues that this process balances the right to privacy of registrants with the public interest in openness and accountability.

I note that in this case the Council released six of the nine records contained on the investigation file including the PPC's case plan for the investigation and its case report on the investigation. It seems to me, that the public interest in openness and transparency has been met to some degree by the release of records to date. I am not satisfied that the public interest in the release of withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find that, in the circumstances of this case, the right to privacy of the parties whose personal information is in the records outweighs the public interest in granting the applicant's request. 

In summary, I find that records 4, 5 and 8 are exempt from release on the basis of section 37(1) and that none of the exceptions under section 37 apply. In light of the above finding, it is not necessary to further consider whether the records are also exempt under sections 29(1)(a), 30(1)(a), 35(1)(a) and 40(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Council's decision to refuse access to records 4, 5 and 8 on the basis that section 37(1) of the FOI Act applies as the records requested contain personal information of individuals other than the applicant and the public interest that the request should be granted does not outweigh the public interest that the right to privacy of those individuals should be upheld.

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.

Elizabeth Dolan

Senior Investigator