Whether the Council was justified in refusing access to emails and attachments, including draft reports, concerning the Council’s accreditation assessment of the School of Medicine Trinity College Dublin (TCD), exchanged between the Council and TCD, under section 29 of the FOI Act

5 March 2020

Background

In a request dated 15 March 2019, the applicant sought access to the minutes of meetings taken by the Council between its accreditation board and Trinity students during the 2018 accreditation process of Trinity Medical School and emails relating to the 2018 accreditation process between Trinity Medical School and the Council. On 8 April 2019, the Council refused the request under sections 15(1)(d) and 29(1) of the FOI Act. The applicant sought an internal review of the Council’s decision, following which the Council affirmed its original decision to refuse access to relevant records under section 29(1). On 10 May 2019, the applicant sought a review by this Office 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 correspondence between the Council and the applicant as set out above and to the correspondence between this Office and both the Council and the applicant on the matter. I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The Council did not provide a schedule of the records refused at either original or internal review decision stage. Following receipt of the application for review, this Office asked the Council to provide copies of the records at issue. The Council initially provided a 236 page pdf document consisting of 56 records comprising email correspondence, a draft report and an extract from the draft report. It also provided a schedule of the records for the first time. Upon examination of the email correspondence, Mr O’Gorman of this Office noted that the Council had not provided or scheduled any of the attachments referenced in the emails. Following repeated requests by this Office, the Council eventually provided all 23 attachments referenced in the email correspondence.

As the Council did not schedule or label all the records at issue, I have referred to the records dealt with in this decision as follows: The 56 records originally provided to this Office are inconsistently numbered 1-65, with no records numbered 7, 8, 9, 56, 59, 60, 61, 62 or 63. They consist of emails, apart from records 48 and 49, which comprise a copy of a draft report and an extract from that report. I will refer to all of these records as the email records. The Council eventually provided a total of 23 unique attachment records. Three of the attachment records are outside the scope of the applicant’s request, as I discuss below. The Council numbered the remaining 20 attachments records 1-20. I will follow that numbering scheme, using the term attachment records.

Having reviewed the records and the Council’s accompanying schedule, I note that a number of the email and attachment records were created after the date of the applicant’s request and are therefore outside the scope of this review. Those records are as follows.

• Email records 48 and 49, which consist of a copy of, and extract from, the Council’s draft report on its accreditation inspection of TCD. The Council stated to this Office that neither of these records were attached to any of the emails at issue and were only included by the Council as they referenced minutes of student meetings, a subject mentioned in the applicant’s request. The Council indicated that these particular versions of the draft report were created on 25 May 2019.
• Email record 65 dated 27 May 2019, along with the three attachments to email record 65:
• A letter dated 27 May 2019 from the Council to TCD,
• A copy of the draft report,
• A document entitled Procedures For The Internal Review Of A Recommendation Made By The Education, Training And Professional Development Committee.

Therefore, the scope of this review is solely concerned with whether the Council was justified in refusing access to the remaining 53 email records and 20 attachment records at issue under section 29(1) of the FOI Act.

It should be noted that during the course of the review, the applicant informed this Office that she was seeking a review only of the Council’s decision to refuse access to records under section 29, and that she was not seeking any personal information relating to third parties.

Preliminary Matters

Section 18(1) of the 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).  I take the view that neither the definition of a record under section 2 of the 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 particular sentences or paragraphs.  Generally speaking, therefore, I am 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. 

It should also be noted that under FOI, records are released without any restrictions as to how they may be used. As such, release under FOI is regarded, in effect, as release to the world at large.

Analysis and findings

In its submission to this Office, the Council indicated it was no longer arguing for the exemption of email records 1 to 6, 10 to 31, and 33 to 47. It contended that a mobile phone number contained in three of those records was exempt under section 37 of the FOI Act. However, the Council declined to release those records during the course of the review. For the avoidance of doubt, therefore, I find that the Council has not justified its decision to refuse access to the relevant records under section 29(1) and I direct release of the records, subject to the redaction of the personal mobile phone number contained in records 18, 19 and 36.

The records remaining to be considered, therefore, are email records 32, 50 to 55, 57, 58, and 64, along with attachment records 1 to 20.

Section 29

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if (a) the record sought contains matter relating to the deliberative processes of an FOI body and (b) the body considers that granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show that both requirements are met.

A deliberative process can be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The main details of the Council’s submission are as follows:

The deliberative process identified by the Council concerns its consideration of a draft report on its accreditation assessment of TCD, and both TCD and the Council are engaged in that deliberative process. The records contain matters considered by the Council for the purpose of decisions, determinations and recommendations. The accreditation inspection conducted provided determinations on whether TCD was Non-Compliant, Partially Compliant or in Full Compliance with the Medical Practitioners Act 2007. This data was presented to the Council in order to carry out its regulatory process.

The records contain decision making steps in the deliberative process that the Council is obliged to take when accrediting medical education and training institutions. A report of the Council’s findings from its inspection of TCD will be published once the process is complete.

The decision for the Council is whether it ought to approve TCD’s programme of basic medical education and training. The Council’s duties in this regard are set out in the Medical Practioners Act 2007. Under section 88(2) of that Act, the Council can approve, approve with conditions, and remove approval of, programmes of basic medical education and training and the bodies which may deliver those programmes. It must inspect approved bodies in order to ensure ongoing compliance with the relevant criteria, guidelines, and standards and must publish details of each inspection.

In order to implement the provisions of section 88(2), the Council has put in place an accreditation process. An accreditation is conducted by an “Assessor Team”, composed of Council members and medical educationalists. The Team draws up a report of its findings, a draft of which is presented to the educational body being assessed for comment. The Team then finalises the report and presents its findings to the Education and Training Committee of the Council for approval.

There is an opportunity given to the training body being assessed to request a review of the accreditation process which led to a recommendation made by the Team in the form of the Report, if it feels that due process was not followed. The window to request a review is provided before the final report is presented to the Education and Training Committee in the Council for approval. Once the Council is satisfied all steps in the inspection process have been completed, the Council publishes details of the inspection.

My understanding from the Council is that the accreditation process has not been completed and the final accreditation report has not yet been published.

Broadly speaking, the records at issue consist of draft versions of the Council’s report on the accreditation process, internal emails within the Council and external emails with TCD in relation to the process of drafting the report, documentation sent between the Council and TCD concerning the content of the report, and various documentation provided by TCD to the Council detailing its provision of medical education.

One record, attachment record 1, is a letter from the Council to TCD in advance of the accreditation process beginning and contains no matter relating to that process. I find that section 29 does not apply to that record and I direct its release. I am satisfied that all of the other records contain matter relating to the deliberative processes of the Council in connection with its assessment of TCD in relation to its role as a medical education and training body and that section 29(1)(a) applies. However, as I have outlined above, for the exemption to apply, release of the records must also be contrary to the public interest.

The public interest test set out in section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). The public interest test in section 29(1)(b) requires the FOI body to be of the opinion that releasing the records at issue would be contrary to, or against, the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.

In her application for review to this Office, the applicant argued that there is a significant public interest in releasing the records at issue. She said the information concerns two public bodies and said that Irish tax payers pay for the education of TCD medical students. She argued that Irish citizens are impacted by the doctors produced by TCD. She argued that while the Council’s website states that it ensures the highest standards of medical training and education in Ireland, it was not transparent in how this accreditation process works in practice. She said that according to the Council’s website the accreditation of TCD was due in 2018 and it is in the public interest to know why the process is late.

The Council argued in its submission that until the final report is published, its contents, if disseminated out of context, could prevent the future flow of reliable and confidential information the Council needs to effectively perform its accreditation assessments. It argued that this would directly impact the public by discouraging potential interviewees from being completely candid with the Council if it became known that their testimonial would be released to the public out of context to the original goal of accreditation. The Council further argued that it would be unable to make its decisions or perform its statutory functions effectively knowing that its deliberations could be scrutinised before reports can be finalised. It contended that the risk would be a lowering of standards in making an effective inspection of a medical school.

The Council’s primary argument for refusing access to the records at issue arises from its concern that the information might be taken out of context, or misinterpreted. This Office takes the view that the possibility that information once released will be used (or abused) in some particular way or misinterpreted or will not be properly understood is not generally a good cause for refusing access to the information, nor is there any provisions in the Act to exempt the release of information on the grounds that it is factually inaccurate. Apart from anything else, such an argument seems to be based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

I also have a difficulty in accepting a general argument that the release of any information would discourage potential interviewees from being completely candid with the Council. It seems to me that it is in the interests of those bodies that they would continue to cooperate with the Council in seeking to obtain accreditation.

Nevertheless, I accept that the Council operates an accreditation process with a view to ensuring that it accords with the principles of procedural fairness and that the relevant bodies subject to the accreditation process are afforded an opportunity to comment upon draft findings before they are presented to the Council’s Education and Training Committee for approval or ultimately published. As such, I accept that bodies seeking accreditation may, on occasion, provide frank and candid comments that it would not necessarily expect to be published. It seems to me that requiring the Council to publish such sensitive information in advance of the publication of the final report would serve to undermine the integrity of the accreditation process.

However, this does not mean that all information relating to the deliberative process, regardless of its sensitivity, should be protected. It is not open to public bodies to take a blanket approach of refusing all records relating to a deliberative process regardless of their contents.

In this case, it seems to me that many of the email and attachment records are little more than procedural or factual in nature, such as draft agendas, attendee lists, presentations, and student doctor rotas along with publically available international standards documents and empty template documents for TCD to complete. Furthermore, many of the emails, in the absence of accompanying attachments, contain little or no information about the deliberative process. I am satisfied that the release of such records would have little or no impact on the deliberative processes of the Council.  In such circumstances, I fail to see how the Council could reasonably argue that the release of those records would be contrary to the public interest. Therefore, I find that section 29(1) does not apply to the following records:

Email records:

• Record 32
• Record 50
• Records 51, 52, 53 and 64, apart from the email of 29 January 2019 from TCD to the Council contained in each record
• Records 57 and 58

Attachment records:

• Records 2 to 4,
• Records 6 to 13
• Record 17

I am satisfied that the remaining records contain sensitive information whose release, at a time when the accreditation process has not yet been completed, would serve to undermine the integrity of that accreditation process. The accreditation process allows the Council to determine the level of compliance by medical schools with the Medical Practitioners Act 2007 and plays an important part in the Council’s efforts to ensure high quality undergraduate medical education and training. I am satisfied that the release of records that would serve to undermine the process would be contrary to the public interest. I find, therefore, that section 29(1) applies to the following records:

Email records:

• The email of 29 January 2019 from TCD to the Council as contained in records 51 to 53 and 64
• Records 54 and 55

Attachment records:

• Records 5, 14 to 16, and 18 to 20

Section 29(2) outlines, at subsections (a) to (e), certain information to which section 29(1) cannot apply. The Council stated in its submission that all parts of section 29(2) were relevant to this case. However, having regard to the fact that the Council argued that the entirety of the records at issue were exempt under section 29(1), I am satisfied that the Council’s position on section 29(2) was based on a misunderstanding of the operation of the exemption. I am satisfied that only part (b) is of relevance in this case. This subsection provides that section 29(1) cannot apply to factual information. On this point, I consider that the remaining records to which I have found section 29(1) to apply contain some factual information. However, having regard to this Office's approach to the release of non-exempt material from an otherwise exempt record as provided for by section 18 of the Act, it seems to me that it would not be practicable to attempt to extract factual information from the records while at the same time ensuring that the redacted copies are not misleading.

Accordingly, I find that the Council was justified in refusing access to the records in question under section 29(1).

For the sake of completeness, I note that a number of records which I have found not to be exempt under section 29 (1) contain some personal information that the applicant has agreed can be removed from the scope of the review. Accordingly, I find that the following information is outside the scope of the review and need not be released:

Email records:

• The final part of the second sentence in the email of 13 February 2019 in record 53

Attachment records:

• Names of drivers and mobile phone numbers in record 4
• Record 7 in full

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Council. I find that section 29 does not apply to the following records, and I direct their release:

Email records

• Records 1 to 6,
• Records 10 to 47 subject to the redaction of the personal mobile phone number in email records 18, 19 and 36,
• Record 50,
• Records 51 to 53, apart from the email of 29 January 2019 in each record and the final part of the second sentence in the email of 13 February 2019 in record 53,
• Records 57 and 58, and
• Record 64 apart from the email of 29 January 2019.

Attachment Records

• Records 1 to 4, apart from the names of drivers and mobile phone numbers in record 4,
• Record 6,
• Records 8 to 13, and
• Record 17.

I affirm the Council’s decision to refuse access to the remaining records, in whole or in part, under section 29(1).

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

 

Stephen Rafferty

Senior Investigator