Whether the Medical Council was justified in withholding certain information from records relating to a complaint made regarding the care of the applicant-�s mother under section 37 of the FOI Act 

21 March 2023

Background

The case has its background in a complaint the applicant made to the Medical Council in 2018 concerning the medical care provided to her mother. In a request the Council received on 22 April 2022, the applicant sought access to the following records relating to the complaint previously made:  

• Emails and attachments on a specified date from a named medical professor;
• Email and attachments on a specified date from a named legal firm representing the medical professor; and
• A letter on a specified date from a second named legal firm.

It appears that as the applicant had not specified that she was seeking access to the records under the FOI Act, the Medical Council interpreted her request as relating to her complaint file. Following a phone call with the applicant on 23 May 2022, it was established that the request was made under the FOI Act and the Council subsequently processed it as such. 

In a decision dated 15 June 2022 the Medical Council refused the request under section 37 of the Act, which is concerned with the protection of third party personal information. On 25 June 2022, the applicant sought an internal review of the Council-�s decision. Following internal review, the Council varied its decision. It granted partial access to the three records it identified as falling within the scope of the request, with certain information redacted on the basis of section 37. On 13 September 2022, the applicant applied to this Office for a review of the Medical 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 applicant and the Medical Council as set out above and to the correspondence between this Office and both the applicant and the Medical Council on the matter. I have also had regard to the contents of the records 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 Medical Council was justified in refusing access, under section 37 of the Act, to parts of the specified records relating to the complaint the applicant made to the Council concerning the care provided to her mother. 

Preliminary Matters

Before I consider the substantive issues arising, I would like to make three preliminary comments.

First, section 13(4) of the FOI Act provides that in deciding whether to grant or to refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question in this case, 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.

Secondly, 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 I can give of the records at issue and of the reasons for my findings are limited in this case.

Thirdly, 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. Our role is confined to a consideration of the decision made on the FOI request.

Analysis and Findings

The Medical Council refused access to information in the three records relating to the applicant-�s mother and other identifiable individuals, under section 37(1) of the Act. 

Section 37(1)

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information, including personal information relating to a deceased individual. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information). In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

Section 2 of the FOI 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 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, comprise personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (xiv) the views or opinions of another person about the individual.

In its submission to this Office the Council indicated, by way of background, that the applicant made a complaint to the Council in 2018 regarding the medical treatment afforded to her mother. It said the complaint was investigated by the Council-�s Preliminary Proceedings Committee (PPC) whose role is to investigate a complaint, decide whether it warrants further action, and provide recommendations to the Council. 

The Council said that in line with its standard complaints procedures, the matter was assigned to a case officer who, owing to the fact that it was noted that the patient was referred to as a Ward of Court, made contact with the General Solicitor for Minors and Wards of Court. It said the General Solicitor confirmed that the applicant-�s mother was indeed a Ward of Court. It said it was informed that the Courts did not consent to the release of information to the applicant and if information were to be considered for release to the applicant then an application would have to be made to the President of the High Court.

The Council said that, notwithstanding the above position, the investigation into the complaint made by the applicant proceeded and as part of that investigation certain information was shared between the Council, the medical practitioner subject to the complaint, and the General Solicitor. In addition, the Council said that updates on the investigation were provided to the applicant as appropriate. 

The Council also informed this Office that on the 25 July 2019, the Courts provided an update stating that due to other ongoing matters relating to the Ward, it was not appropriate to make an application to the President regarding the sharing of information with the applicant at that time. In addition, the Council said that on 10 September 2019, the PPC concluded its investigation and decided to take no further action in relation to the applicant-�s complaint. The Council said this decision was ratified by the Council at its meeting on 6-7 November 2019.  As a result of this, the Council said the matter was not pursued further with the Courts. In light of the above, the Council said it did not believe it was appropriate to share the requested records with the applicant in the current case without confirmation from the Courts.

The information redacted from the records at issue comprises either information solely relating to the applicant-�s mother, joint personal information relating to the applicant and her mother, or personal information relating to third parties. I am satisfied that the release of the information would, in all instances, involve the disclosure of personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section

Sections 37(2) and 37(5)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arises in this case. Section 37(5) provides that a request that 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 right to privacy of the individual to whom the information relates, or (b) the grant of the information would benefit the person to whom the information relates. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

In relation to the applicability of section 37(5)(a), 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. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. Nevertheless, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (-�the eNet Case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26. It is noted that a public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). Furthermore, unlike other public interest tests provided for in the FOI Act, there is 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.

In considering where the balance of the public interest lies, I have had regard to the fact that the release of records under FOI is 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 may be put. Having examined the records at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8)

Section 37(8) provides that notwithstanding subsection (1), the Minister may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations. Such regulations have been made, namely the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, as amended (the 2016 Regulations).

Regulation 4 provides that, notwithstanding section 37(1), an FOI request may be made for records which involves the disclosure of personal information (including personal information relating to a deceased individual), and shall, subject to the other provisions of the FOI Act 2014, be granted if the case falls within a case to which Regulation 7 applies. Regulation 7 applies to a case in which the individual to whom the record concerned relates is dead (-�the individual-�) and either-

(a) the requester concerned belongs to one or other of the following classes:

(i) a personal representative of the individual acting in due course of administration of the individual-�s estate or any person acting with the consent of a personal representative so acting,

(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, or

(b) the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

It is important to note that each of the three classes outlined are standalone classes. If a requester shows that they satisfy one of the classes, it is not necessary for the requester to show that they satisfy any other of the classes. Moreover, once the conditions of the category are met, the 2016 Regulations provide that the FOI body shall grant the request, subject only to the other provisions of the Act. Nevertheless, it is also important to note that the 2016 Regulations do not provide for the release of personal information of any party other than the relevant deceased person. Neither do they provide for the release of personal information of a deceased person where that information is joined to the personal information relating to any other party.

During the course of the review, the applicant informed this Office that her mother was deceased. We asked the Council if it had had considered the provisions of section 37(8) and the associated Regulations. In response, the Council said it was its understanding that the applicant-�s mother may have passed away in 2020.  It said it wished to extend its sincere condolences to the applicant on her loss.

In addition, the Council said that in the interest of completeness, it examined whether the information relating to the applicant-�s mother in the record was information relating to a deceased individual. It said that were this case to relate to the personal information of a deceased individual, it remains the case that, in line with the 2016 Regulations, regard should also be given to the subject matter of the information which contains sensitive health information and details of the medical treatment afforded to the applicant-�s mother. The Council said it does not believe there is an automatic right of access to this information by the applicant, should she now be in a position to provide confirmation that her mother is deceased and she would be next of kin.

Under section 48(1) of the FOI Act, the Minister for Public Expenditure and Reform may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. FOI bodies must have regard to any such guidelines. The Minister has produced a Guidance Note relating to section 37(8) and the 2016 Regulations.

The Guidance Note suggests that each case must be judged on its own merits and that the public interest in the confidentiality of personal information will have to be balanced against the public interest in the right of the requester to access the records. It suggests that in light of the requirement in the 2016 Regulations to have regard to "all the circumstances" when considering whether to grant or refuse a request from a spouse or next of kin of a deceased person, the factors to be considered include:

• the confidentiality of personal information as set out in section 37(1);
• whether the deceased would have consented to the release of the records to the requester when living;
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records;
• whether the release would damage the good name and character of the deceased;
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death;
• the nature of the records to be released. The guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 8th edition published May 2016);
• whether the requester can get the information they want without accessing the records of the deceased;
• any other relevant circumstances that the requester may set out.

Having considered the Council-�s response, it seems to me that it did not, in fact, properly consider the 2016 Regulations in this case. Accordingly, it is open to me to annul the Council-�s decision and to remit the request back for consideration afresh. However, given the Council-�s position on the matter, and having regard to the nature of the information at issue and the particular issues arising in this case, I deem it appropriate to proceed to consider the applicability of the 2016 Regulations.

It is important to state at the outset that the 2016 Regulations provide for a right of access to personal information relating to the deceased only. Assuming the applicant is the next of kin, then the Regulations provide for a potential right of access to personal information relating solely to the deceased, and personal information relating to the deceased that is inextricably linked to personal information relating to the applicant. If disclosure of the information would also involve the disclosure of personal information relating to any other party, the 2016 Regulations do not provide for a right of access to such information.

Regulation 8 of the 2016 Regulations defines next of kin. As the daughter of the deceased, it seems to me that the applicant is, indeed, to be regarded as the next of kin for the purposes of the Regulations. However, the fact that she may be the next of kin does not mean that an automatic right of access to the records exist. Rather, the question to be considered is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

As I have outlined above, the Guidance published by the Minister outlines various non-exhaustive factors that should be considered when considering whether the public interest would on balance be better served by granting than by refusing to grant the request, including matters such as the confidentiality of personal information as set out in section 37(1), whether the deceased would have consented to the release of the records to the requester when living, and the nature of the records to be released.

While I believe that I am constrained by the provisions of section 25(3) from giving a fuller explanation for my findings, I find, having carefully considered the contents of the records at issue and having regard to the particular circumstances arising in this case, that the public interest would on balance be better served by refusing to grant the request.

In conclusion, therefore, I find that the Council was justified in refusing access to the remaining information in the records under section 37(1) of the Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Council-�s decision to withhold certain information from the records concerned 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.

Stephen Rafferty
Senior Investigator