Case number: OIC-140772-D6W1P2

Whether the Council was justified in refusing access to a certain complaint investigation file on the basis of section 30(1)(a) of the FOI Act

 

6 December 2023

 

Background

This case concerns a request for records held by the Council in the context of a complaint made by the applicant. Under the Medical Practitioner’s Act 2007, as amended, (the 2007 Act), the Council is responsible for examining complaints in relation to registered medical practitioners. Complaints are initially considered by its Preliminary Proceedings Committee (PPC). The role of the PPC is to review and investigate complaints to decide whether further action is required. Further action might include a referral to a Fitness to Practice inquiry or a determination that there is no case to answer on the part of the registered medical practitioner. The applicant made a complaint to the Council in respect of a number of medical practitioners from a named hospital (Hospital X) who were involved in the care of his late mother.

In an FOI request dated 24 May 2023, the applicant sought access to an investigation complaint file of Hospital X which is held by the Council and was referenced in meeting minutes released to him. In a decision dated 7 June 2023, the Council refused access to the relevant records on the basis of section 30(1)(a) of the FOI Act. On the same day, the applicant sought an internal review of the Council’s decision. In his correspondence, he made a number of submissions in respect of the public interest. In its internal review decision, issued on 28 June 2023, the Council affirmed its original decision. On 24 July 2023, the applicant applied to this Office for a review of the Council’s decision.

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 Council and the applicant. I have also examined the file at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access to the complaint investigation file (comprised of pages 1-93) on the basis of section 30(1)(a) of the FOI Act.

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, 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 the contents of the records is limited.

Secondly, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Thirdly, 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.

Finally, I note that in his correspondence with this Office the applicant referred to his engagement with the Council and the actions of a third party. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies, or indeed third party entities.

Analysis and Findings

The records at issue

As noted above, the records in this case relate to a complaint made by the applicant to the Council in April 2022 in respect of eight registered medical practitioners. The complaint concerned medical care received by the applicant’s deceased mother before her death.

In its submissions, the Council said that the PPC considered the matter in June 2022 and a caseworker was directed to carry out a number of investigations. It said that pursuant to sections 59(11) and 66(1)(c) of the 2007 Act, the Council issued a production summons to Hospital X to obtain a copy of an investigation file in respect of any and all complaints submitted by or on behalf of the applicant’s deceased mother. A complaint file was received by the Council in August 2022.

The file is comprised of 93 pages, all of which have been refused in full on the basis of section 30(1)(a). The records comprise internal email correspondence between staff of Hospital X and complaint documentation.

Section 30(1)(a)

Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the records concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct therefore. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of the particular records concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable.

Submissions

The Council’s position is that its investigation into the applicant’s complaint is ongoing. In its submissions to this Office, it said that the complaint is “well progressed” and that most of the directions from the PPC have been completed. It said that it is awaiting updated responses from relevant individuals. It said that upon receipt, all such responses will be shared with the complainant for comment. It said that following this, the complaint will be presented to the PPC for decision. It said that as the investigation is ongoing, releasing the documentation before its conclusion may discourage the public and medical practitioners from being able to communicate in confidence with the PPC without fear that personal or sensitive matters will be disclosed. It said that the Council is obliged to uphold the right to privacy of medical practitioners who may be the subject of an investigation or witnesses engaged in the process. It said that this extends to third parties employed by Hospital X who are not a party to the complaint.

In respect of the prejudice or harm expected, the Council said that it has a duty to protect the interests of the public in their interactions with registered medical practitioners. It said that it does this by maintaining the Register of Medical Practitioners and by investigating complaints and holding Fitness to Practice inquiries in accordance with the provisions of the 2007 Act. It said that in order to conduct such investigations, there is an expectation that during the investigation process, the Council would protect the right to privacy of members of the public, medical practitioners and all those whose information is submitted to the Council as directed by the PPC. It said that the records in question relate to internal communications between staff of Hospital X which were received by the Council following a production summons. It said that there is an expectation that this should remain in confidence until the investigation has concluded.

On that point, I would note that there are a number of exemption provisions in the FOI Act which relate to third party information. These include section 35 (information obtained in confidence), section 36 (commercially sensitive information) and section 37 (personal information). The Council has not sought to rely on any of the above exemption provisions.

The Council said that releasing the documentation before the investigation is concluded may discourage the public or medical practitioners from communicating in confidence with the PPC and the Council in relation to personal or sensitive matters. It said that the PPC has discretion to direct the sharing of information with the parties involved during the investigation process. It said that it can decide not to share certain correspondence or records with individuals for various reasons as considered by the Committee. It provided a copy of relevant PPC procedures. It said that releasing the records to the applicant now is likely to prejudice the effectiveness of the investigation on the basis that the PPC has decided not to share the documents at present. The Council said that it would be happy to reconsider the applicant’s request afresh upon completion of the investigation process.

The applicant also made substantive submissions to this Office. His position is that the Council is erroneously claiming a right to exempt a class of documents collated as part of its investigation into his complaint. He referenced a number of previous decisions of this Office in support of his position. He said that the Council is claiming as a universal principle that reports obtained are not releasable under any circumstances where an investigation is in progress rather than assessing the individual merits of whether the records should be released.

The applicant argued that the Council did not cogently explain how and why release of the records could reasonably be expected to give rise to any harm envisaged. He said that a general prediction without any supporting evidence is not sufficient to satisfy the harm requirements. He said that the Council has confirmed that there is “effectively no active investigation underway”. In support of this position, he referenced a separate inquest undertaken by the Coroner and the Council’s decision to seek a copy of the Coroner’s report and/or inquest file. He noted that the Coroner’s inquest has been the subject of media reporting. He argued that the Council’s investigation has been paused since its decision to seek a copy of the Coroner documentation.

The applicant referenced a particular previous decision of this Office in detail. Case OIC-109084 concerned a decision of the Department of Social Welfare to refuse access to records relating to a claim for social welfare payments. The records in that case comprised the investigation file of a Special Investigation Unit officer. The Commissioner ultimately found that the records were not exempt by virtue of section 30(1)(a). While I do not intend to restate the findings of the case, I confirm that I have had regard to the applicant’s submissions in this regard.

The applicant noted that he has been provided with written depositions made by the medical practitioners who are the subject of complaints made. He said these documents have been released to him by the Council as part of its ordinary investigative process. He said he has been invited to submit observations in respect of the documents.

The applicant also made submissions in respect of the Council’s internal review decision and statements therein. With reference to the Council’s position that release could have a negative impact of the effectiveness of its regulatory functions, he said that the Council has statutory powers to compel medical practitioners or other parties to present themselves as witnesses for examination or to produce relevant records.

In further submissions, the applicant notified this Office that the separate Coroner proceedings had concluded and a verdict had issued. He again noted the “extensive media coverage” in respect of the case. He made further submissions which relate to the public interest test at section 30(2) and which I will consider below as appropriate.

Analysis

At the outset, it is important to note that this Office has no role in considering the appropriateness or efficiency of the Council’s procedures for investigating complaints. I am confined to considering whether disclosure of the complaint file at issue could reasonably be expected to result in the relevant harms.

I am satisfied that the records in question relate to an investigation conducted by an FOI body and therefore relate to a function falling within the scope of section 30(1)(a). Within that section, two potential types of "prejudice" or harm are envisaged. The decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the relevant function, or the "procedures or methods employed for the conduct thereof”. As such, the question at issue is whether release of the complaint file could reasonably be expected to prejudice the effectiveness of such investigations or the procedures or methods employed for their conduct.

In essence, the arguments advanced by the Council in support of its refusal are:

1. that release may discourage the public and/or medical practitioners from being able to communicate in confidence with the PPC and that there is an expectation that the privacy rights of medical practitioners, witnesses, and other third parties would be protected during the investigation process, and

2. that release at this time is likely to prejudice the effectiveness of the investigation on the basis that the PPC decided not to share the records at present.

Having considered the submissions made, it seems to me that the first argument relates to the effectiveness of the investigation function while the second relates to the procedures or methods employed.

Before commencing my analysis in respect of the above, I note the applicant’s arguments that the Council is seeking to exempt a class of documents. I have carefully considered the records in question and the submissions made by the Council. It seems to me that while the file in question is comprised of separate documentation, the file itself was procured by the Council on foot of a production summons issued to Hospital X. It seems reasonable that the PPC would consider the file as one composite record, given its origin. It is effectively a composite piece of evidence. It is not the case that the Council has refused to provide any information to the applicant in respect of its ongoing investigation. It has provided documentation and has stated its intention to provide further documentation. It has also stated that it would be happy to reconsider the applicant’s request afresh upon completion of the investigation process.   

I wish to comment briefly on case OIC-109084, which the applicant referenced in his submissions. In that case, the FOI body sought to withhold documents comprising the investigation file of a Special Investigation Unit officer. The Commissioner noted that the FOI body had effectively placed in the public domain a substantial amount of evidence it compiled in the course of the investigation. He was not satisfied that release of the records could reasonably be expected to result in the relevant harms. It is important to note that previous decisions by the Commissioner do not serve as precedents. However, this Office does strive for consistency and previous decisions can serve as an indicator of how a particular matter was dealt with in the past. The Department in the above case had set out in detail the evidence it had gathered against the applicant. The records at issue contained information as to the sources of that evidence as well as standard communications concerning the consideration of allowance applications. The factual circumstances of the current case and the nature of the records are quite different. The file at issue is one composite piece of evidence held by the Council, obtained on foot of a production summons. The PPC decided not to share the particular file with the applicant, who I note is not an individual under investigation. The Council has provided the applicant with other documentation and he has been given an opportunity to comment; it has not refused access to any and all records relating to the investigation. I am satisfied that the two cases can be sufficiently differentiated.

In respect of the Council’s first argument, I note that the 2007 Act does provide seemingly extensive powers in respect of the production of records. Sections 59(11) and 66(1)(c) provide that the PPC has all the powers, rights and privileges that are vested in the Court or a judge of the Court on the occasion of an action and that relate to compelling the production (including discovery) of records. I note that the file in question was provided to the Council on foot of a production summons, pursuant to sections 59(11) and 66(1)(c) of the 2007 Act. I accept that the Council has the power to require the provision of relevant records as part of its statutory function. It is not clear to me that release of the records in question would necessarily undermine its ability to secure similar records in the future. While I accept that the co-operation of parties (including third parties) is an important aspect of any complaint investigation regime, on the strength of the submissions before me, it is not clear to me that release of the relevant file would necessarily discourage future communications or the provision of evidence.

I find the arguments in respect of the second part of section 30(1)(a) to be more persuasive. It seems to me that a decision by this Office to release the file at this time, while the investigation is ongoing, could potentially undermine the statutory discretion afforded to the PPC and the Council. This Office accepts that the stage of the process or the time at which the records are being considered for release may be relevant to the issue of prejudice. While noting the applicant’s submissions in respect of an effective pause in the processing of his complaint, I accept the Council’s submissions that its investigation is ongoing. It outlined the current status of the investigation and intended next steps.

I consider that during an investigation, the PPC is best placed to determine whether documentation such as that at issue can or should be shared with relevant parties for comment. Again, I note that it has directed the release of certain documentation to the applicant and he has been provided with an opportunity to comment on same. I have carefully considered the contents of the complaint file in question. While I cannot comment on the exact contents of the documents, I can say that they relate to processes internal to Hospital X. I am not privy to the detail of the complaints under investigation by the Council or its consideration of same. Given the nature of the records and their provenance, it seems to me that the PPC possesses the information required to best determine whether release should be directed while an investigation is ongoing. As a general proposition, I accept that an investigative body should be allowed a fair degree of latitude, subject to the need for fair procedures, to decide when information already in its possession should be made available to parties to an investigation, particularly while that investigation is ongoing and where a formal determination has not yet been made.   

I also accept that the premature release of certain types of information could reasonably be expected to prejudice the effectiveness of investigations and the methods employed for conducting such investigations. In the current case, I am satisfied that the Council follows an established procedure in respect of complaint investigations and that this procedure includes directing the release of certain information, as considered appropriate by the PPC. I am satisfied that a direction by this Office to release such information, while an investigation is ongoing, could reasonably be expected to prejudice the procedures or methods employed for the conduct of such investigations. As such, I find that section 30(1)(a) applies to the file at issue.

However, this is not the end of the matter. I will now go on to consider the public interest test set out in section 30(2) of the FOI Act.

The public interest

Section 30(2) of the FOI Act provides that section 30(1)(a) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That provision recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, when considering where the balance of the public interest lies, I have 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 its judgment, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Although the Court’s comments were made in a case involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

Both parties made submissions in respect of the public interest test. The Council identified a range of factors in favour of and against release. It said that there is a public interest in statutory bodies being open and transparent and in such bodies being held accountable to the public in respect of their decision-making processes. It said that there is also a public interest in ensuring the Council fulfils its role as a regulator and it again referenced the discretion of the PPC to direct the sharing of records. In respect of the separate Coroner proceedings referenced in the applicant’s submissions, it said that there is another avenue of access available to the Coroner through direct engagement with the third party healthcare facility.

In his submissions, the applicant argued that the balance of the public interest weighs in favour of disclosure. He said that failings in relation to his mother’s care are a matter of public record. In further submissions, he said that the Coroner’s inquest concluded with a verdict of medical misadventure. He referenced “extensive media coverage” in this regard. He said that there is a potential for harm to come to members of the public seeking care in Hospital X. He said that no arm of the State regulates private hospitals or is empowered to investigate adverse medical events that occur in private hospitals. He said that significant records, in the form of depositions, have been released to him and he has been invited to provide formal observations.

He said that no investigative report relating to his mother’s care was identified or released on foot of a request made to the healthcare facility under data protection legislation. He said that individual’s involved in her care have confirmed that they were not consulted in relation to any investigation or report. He said that the record in question is of evidential value to him in the context of coronial proceedings, though I note that in later submissions he said that such proceedings had concluded. He also said that Senior Counsel for the healthcare facility confirmed to the Coroner that no investigation report exists. He therefore queries why the Council have been provided with a “complaint investigation file”. He said that he is only interested in his right to obtain the withheld record. He notes that the Coroner has separate powers under relevant legislation.

The applicant also noted the PPC’s reference to section 57(3)(a) of the 2007 Act in its initial decision not to release the relevant file outside of FOI. He said that the provision relates directly to the statutory obligation of the PPC to keep complainants informed of the status of their complaint and that it should not be relied upon as part of the public interest balancing test.

He said that the complaint investigation file in question is “one other piece of the puzzle” in the events surrounding his mother’s death and that its “bona fides” should be tested in the same manner as the depositions provided to him to date. He said that he is still to make further submissions to the Council in connection with his complaints and that “there are lives at risk”.

I wish to restate a number of important points before I consider the balancing test under section 30(2). Firstly, section 13(4) 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. 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, as noted above, release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, the FOI regime 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.

In this case, the applicant has advanced arguments which relate to his status as a complainant to the Council and which also relate to his interpretation of the name of the file provided by Hospital X and his understanding of the contents of same. While he has essentially expressed a private interest for seeking access to the records, it seems to me that his reasons for seeking access are reflective of a public interest in ensuring that the complaint investigation process undertaken by the Council is robust and fair and that it serves to protect members of the public in their engagement with registered medical professionals.

On the other hand, section 30(1)(a) is an express recognition of the fact that there is a public interest in the protection of information the release of which could prejudice certain functions of FOI bodies. It seems to me that there is a significant public interest in ensuring the integrity of the Council’s complaint investigation function, particularly given the potential gravity of the matters under investigation and the impact of findings on those under investigation.

While I accept that the release of the records may serve to further enhance transparency in respect of the Council’s complaint investigation process, it seems to me, having carefully considered the records, that the degree of enhancement would be limited. I also note that the Council has released significant documentation to date, as per the applicant’s submissions. In respect of the applicant’s arguments about the lack of State oversight of the third party healthcare provider and potential risks associated with its activities, it seems to me that the Council’s complaint investigation process itself provides a level of oversight in respect of registered medical practitioners employed by Hospital X.

While the applicant has argued that he should be entitled to consider and comment on the file in question, such arguments effectively relate to the Council’s general performance of its statutory functions. It is beyond the remit of this Office to adjudicate on such matters.

In my view, in circumstances where the complaint investigation is ongoing, and given my finding that the release of the relevant file could reasonably be expected to prejudice the effectiveness of the procedures and methods employed for the conduct of such investigations, I am satisfied that the public interest would, on balance, be better served by refusing access to the records at issue.

In conclusion, therefore, I find that the Council was justified in refusing access to the records requested under section 30(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that it was justified in its refusal of the relevant records on the basis of section 30(1)(a).

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.

 

Alison Connolly
Investigator