Whether the Medical Council was justified in refusing, under section 15(1)(a) of the FOI Act, access to further records coming within the scope of the applicant's request for records relating to a complaint he made to the Medical Council in 2011 on the ground that no further relevant records exist or can be found

21 March 2022

Background

This case has its background in a complaint the applicant made to the Medical Council in 2011 against a registered medical practitioner (the doctor). The Preliminary Proceedings Committee (PPC) of the Medical Council examined the complaint, and decided no further action should be taken. Following a complaint to the Data Protection Commission, it was agreed that a footnote with a point of correction would be added to the minutes of that PPC meeting which took place on 21 July 2011. The original minutes included a reference to the applicant having "missed several appointments" and the proposed footnote clarified that there was no evidence that the applicant had missed several appointments.

In an FOI request dated 9 August 2021, the applicant referred to the complaint above and the proposed amendment of the PPC minutes, and sought access to various related records including the complaint from him to the Medical Council, any allegation he missed appointments, the source of a claim that the doctor refused him treatment, a letter to his GP from the doctor stating that he was offered and refused immediate treatment, the source of the statement that there was no evidence that he missed several appointments, the Medical Council's dismissal of the complaint that was sent to him and the doctor, and records showing that the complaint was dealt with.

On 3 September 2021, the Medical Council part-granted the request. It explained that the proposed footnote amending the minutes of the 2011 meeting was to go before the PPC at its next meeting and it apologised for the delay in this happening. It said that, once approved, a copy of the updated 2011 minutes would be sent to the applicant. It said that with the passage of time, it had limited records available relating to the FOI request and provided a Schedule of Records which listed 305 pages of records. All records were released, or partially released, with redactions to certain information made throughout under section 37(1) of the FOI Act. 

The applicant sought an internal review of that decision on 30 September 2021, noting that he had received a copy of the amended PPC meeting minutes. He said that the Medical Council had not released any of the specific documents that he had looked for in the FOI request and he sought further records including what the Medical Council provided to the Data Protection Commission. On 19 October 2021, the Medical Council affirmed its original decision. On 17 November 2022, the applicant applied to this Office for a review of the Medical Council's decision. During the review, the Medical Council re-examined the records and acknowledged that it had redacted, in error, the names and email addresses of staff members of the Department of Health from a number of records. These records were re-issued to the applicant on 14 January 2022 with the redactions removed.

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 by the applicant to this Office, and to the correspondence between the parties as set out above.  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 Review

The jurisdiction of this Office is based on the wording of the original FOI request and internal review request. This Office does not have jurisdiction to consider the release of any records that the applicant did not seek in his original request or to review an FOI Body's decision in relation to particular records where an applicant has not sought to have these decisions reviewed. In his request for internal review, the applicant sought additional records that were not included in the original request, including documentation the Medical Council provided to the Data Protection Commission. While the applicant argued, in his correspondence with this Office, that such records fall within the original request, I do not accept that argument, having regard to the wording of his request of 9 August 2021. Should the applicant wish to submit a fresh request for such records, it is open to him to do so.

On 4 February 2022, the Investigating Officer contacted the applicant by email and noted that further to certain records being re-released by the Medical Council on 14 January 2022, the information that remained redacted under section 37 of the FOI Act referred mainly to the name of the doctor against whom he had made the complaint. Given that the applicant was already aware of this name, she suggested that there might be little value to the applicant in this Office reviewing the remaining redactions and she proposed limiting the scope of the review to the question of whether the Medical Council had carried out reasonable searches for the records sought and whether or not it was justified in saying that no further records existed or could be found. The applicant replied on 9 February 2022 in which he acknowledged that a decision would be made regarding the Medical Council's claims that no further records existed other than what had already been released to him.

This review is therefore concerned solely with whether the Medical Council was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records relevant to the FOI request of 9 August 2021 apart from the 305 records already located and released (in full or in part), on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

The applicant, in his communication with this Office as well as in his correspondence with the Medical Council, raised a number of concerns relating to the 2011 complaint including its handling by the Medical Council, the Medical Council's subsequent dealings with the Data Protection Commission, and the applicant's own ongoing serious health and mobility issues. Decisions made by the Medical Council on previous FOI requests by the applicant related to this 2011 complaint have been subject to review by this Office on three previous occasions. As the applicant has been previously advised, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. This review has been conducted under section 22(2) of the Act and its scope is confined to the matter identified above.

It is also relevant to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the record at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (which is not relevant in this case).

Analysis and Findings

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified.  This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

The Medical Council provided this Office with a description of the searches it undertook to locate records relevant to the applicant's request, details of which were provided to the applicant during the review. Therefore, while I do not propose to repeat the details in full here, I can confirm that I have had regard to those details in full and to the applicant's response. In summary, the Medical Council said that searches were carried out by the relevant Complaints and Investigations Manager within the Professional Standards team who initially retrieved letters and email correspondence from the internal complaints system, as well as meeting minutes for the relevant time period. Due to the passage of time, the full record of the complaint was not available electronically so it was necessary to carry out a search of files held in hard copy storage. This was done via the records management service provider with records retrieved following searches under the applicant's name, complaint reference number, the doctor's name, and his registration number. Further to records from these searches being compiled, the FOI Officer reviewed them and determined that additional searches were required to exhaust all potential locations. She contacted all staff members who had worked on the Professional Standards team at the time of the complaint and directed them to search their emails and folders. Additional email correspondence was uncovered during this process which formed part of the final 305 records that were released.

The applicant provided a detailed response to these search details, the content of which I have considered. In summary, his position is that the Medical Council has falsified records and withheld records relevant to his request.

As previously stated, the only question before me is whether the Medical Council was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to further records relevant to the applicant's FOI request on the ground that no further records exist or can be found. The circumstances that led to the original complaint being made in 2011, how the Medical Council dealt with that complaint, and its subsequent dealings with the Data Protection Commission are all outside the scope of this review. The applicant is continuing to pursue records from the Medical Council showing the source of claims that he missed appointments, in circumstances where the Medical Council has conceded that there is no evidence that appointments were missed and has added a correction to the 2011 PPC meetings minutes to reflect this. It appears to me that the applicant is seeking records that do not exist. The applicant stated that the Medical Council only provided him with "extracts" from the PPC meeting minutes rather than the full minutes. It seems to me that the PPC meetings would have dealt with a number of other complaints to the Medical Council that had no connection to the applicant and it was entirely appropriate to release only the parts of the minutes relevant to his complaint. The applicant argued that the numbering of the records released compared to the numbering of records released in a previous FOI request suggests that records have been withheld; I do not accept this.

Having considered the details of the searches undertaken by the Medical Council, I am satisfied that it has carried out all reasonable steps in an effort to locate the records sought in this case. I do not accept the applicant's arguments that it has deliberately withheld records and find that there is no evidence to support this.

Accordingly, I find that the Medical Council was justified in refusing the applicant's request for additional records on the ground that no such records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Medical Council's decision to refuse access, under section 15(1)(a) of the FOI Act, to further records falling under the scope of the applicant's request on the ground that no further relevant records exist or can be found.

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.

Stephen Rafferty

Senior Investigator