Decision
Mr Q and The Medical Council
From Office of the Information Commissioner (OIC)
Case number: OIC-160189-Y3Z7F6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-160189-Y3Z7F6
Published on
Whether the Medical Council was justified, under section 15(1)(a) of the FOI Act, in refusing records of the reasons given by certain individuals for recusing themselves from a meeting concerning the applicant on the basis that the records sought do not exist
15 October 2025
In a request dated 13 May 2025, the applicant sought access to the written or otherwise expressed reasons given by eight members of the Medical Council for withdrawing from the decision-making process relating to the applicant at a Preliminary Proceedings Committee (PPC) meeting.
On 10 June 2025, the Medical Council refused the applicant’s request under 15(1)(a) of the FOI Act on the basis that no records relating to his request exist. In that decision letter, the Council said that the relevant Committee is comprised of members who are also members of the Medical Council. It said that the Medical Council itself had become a complainant in the matter relating to the applicant and those members of the Committee who are also members of the Council automatically recuse themselves in circumstances when the Committee can remain quorate as part of a normal process to minimise any risk of a conflict arising. It also said this was the reason for each of the members who recused themselves as no other conflict under the Council’s general Conflicts of Interests Policy was declared.
On 10 June 2025, the applicant requested an internal review of the Medical Council’s decision. In his request for an internal review, the applicant said the Committee contravened the Medical Practitioners Act 2007 in that it did not remain quorate. On 30 June 2025, the Medical Council affirmed its original decision and said that as the matter had been before the Council on the 2 December 2021, the PPC members recusal from the meeting of the 14 September 2022 was process based and was noted in the minutes as “having declared an interest”. It said, no other records exist with information in relation to these recusals. The applicant applied to this Office for a review of the Council’s decision on the same day.
In his application for review, the applicant said that it appeared that the Council was in breach of the Medical Practitioners Act 2007 by using five members to vote on a matter instead of the seven stipulated by law. He said he was entitled to know if the Council was aware of this breach at the time and to know what reasons members gave for breaching the act by recusing themselves.
Before inviting the Medical Council to make detailed submissions in the matter, the Investigating Officer engaged with the applicant to clarify the scope and nature of his application for review. The applicant clarified that he was seeking access to records of the reasons, in writing, if they exist, for why eight of thirteen members of the Medical Council recused themselves from a vote at the meeting before the relevant Committee.
The Investigating Officer invited the Medical Council to make submissions in support of its decision and provided details of those submissions to the applicant. The applicant was invited to make further submissions in response, which he duly did. In his further submissions the applicant noted that the Council’s submissions identified six members who recused themselves, not eight. As part of this review, the Investigating Officer sought clarification on this apparent discrepancy. The Medical Council said the discrepancy was because the applicant was in possession of draft minutes, not the final approved minutes. It had not previously released the approved minutes to the applicant but did so during this review and issued an apology to the applicant for not having done so previously.
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 outlined above and to the submissions made by both parties. I have also had regard to the relevant part of the minutes at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Medical Council was justified, under section 15(1)(a) of the FOI Act, in refusing access to reasons given by eight members of the Medical Council for recusing themselves from the relevant PPC meeting on the basis that no records containing the reasons sought by the applicant exist.
Before proceeding to the substantive matters of this review, I would like to address some preliminary matters.
In his submissions to this Office, the applicant said that the Council’s claims that there are no written records of recusals from his Preliminary Proceedings Committee (PPC) meeting raises serious concerns about transparency, procedural fairness and record keeping standards. He requested this Office to investigate whether this constitutes a breach of the Council’s obligations under GDPR and /or the Data Protection Act. The applicant also alleges the Medical Council was in breach of legislation governing its functions, specifically in the number of members requisite to remain quorate in relation to the PPC Committee. It is important to note 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. Furthermore, complaints about GDPR are a matter for the Data Protection Commission.
It is also worth nothing here that 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 15(1)(a) of the FOI 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. Our 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 their 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.
As noted above, the Council provided this Office with submissions detailing why no relevant records exist in this case, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
By way of background, the Medical Council said it became the complainant in a matter relating to the applicant. It said that, in certain circumstances, the Medical Council can become the complainant where the Council believes there is sufficient evidence to progress a complaint that may affect the general public. It said that once the Council became the Complainant in this investigation, the case was referred to Preliminary Proceedings Committee (“the PPC”). It said the PPC considers complaints by reviewing the evidence collected as part of the investigation. The Council said the PPC is made up of several medical and non-medical committee members and that some of the PPC members are also part of the Medical Council.
The Council said that in circumstances where a PPC meeting can remain quorate, it is standard procedure for members of the PPC who are also Council Members to recuse themselves from matters which may have already been considered by the Council to reduce any risk of bias. The Council said this is “process based” and was noted in the minutes as “having declared an interest” and no other records exist with information in relation to these recusals. The Council said it understood that the applicant had been provided with a copy of the minutes where his case had been discussed and that each member who had recused themselves is noted in the minutes.
The Medical Council said its FOI Officer contacted the relevant team (the Complaints and Investigations team) to discuss the possible existence of additional records relating to why PPC members may have recused themselves. The Complaints and Investigations team said that the draft Minute provided to that applicant indicated that the members of the
PPC who were also Council members and previously had been present at the Medical Council’s meeting where it decided to become the complainant in the matter, recused themselves from the PPC’s consideration of the complaint relating to the applicant.
In addition, the Complaints and Investigations team said the Medical Council has a general Conflicts of Interests Policy whereby members of the PPC are required to declare any actual or perceived conflicts of interest in advance of the consideration of a matter. It said that when a member has or becomes aware of an actual or perceived conflict of interest, they are required to notify the Executive of any such conflict. It said the fact of the conflict, but not the circumstances giving rise to the conflict, is then recorded and the member is not permitted to be present during the PPC’s consideration of the relevant matter. The Complaints and Investigations team said that no such conflict was raised by any of the PPC members in advance of considering the complaint relating to the applicant and the recusals noted in the minute were on the basis of the process relating to Council consideration as outlined above.
The Medical Council said no records are created as per the normal process of recusing Council Members from deciding on matters at the PPC, meaning there are no records in existence relating to written or otherwise expressed reasons for each of the members’ withdrawal from the decision-making process. It said no such record of the reasons given ever existed and so it is not possible that any records were destroyed.
The Investigating Officer sought clarification in relation to the process associated with recusals by PPC members in the circumstances when the Medical Council becomes a complainant. The Council said it understood that the PPC meeting in question was held remotely over video conference call and that the act of withdrawing/recusing by PPC members is completed by logging out of the call. It said this is noted in the minutes of the meeting. It said no further reasons for why these individuals withdrew from the meeting were recorded but that the members that withdrew from the PPC meeting were all Council members at the time.
It said that PPC meetings cover a wide range of cases to be discussed and all PPC members are invited to attend regardless of whether they are also Council members, leave when appropriate and usually rejoin after the item has been discussed and the next agenda item is about to commence. Regarding how the Council is able to distinguish a recusal based on the process that it said applies here, as compared to some other reason (such as the General Conflicts of Interest Policy), the Council said reasons for conflicts are not declared. It said a declaration that a conflict exists or that a PPC member must withdraw is regarded as sufficient. It said where other cases remain under consideration at a meeting, the reasons for a member’s conflict are not disclosed, in order to avoid the release of sensitive information.
With respect to the discrepancy between the draft minutes, the applicant’s original request, and the number of members noted in the Council’s submissions, the Council said when this error was discovered (at the time the original minutes were being approved by the PPC), the list was edited to note that only six members withdrew. It provided this Office with a copy of the draft minutes and the approved minutes in its response. The Council said, regrettably, the applicant had not been provided with the approved version of the minutes.
As noted above, the applicant was provided with an outline of the Council’s submissions, a copy of the approved minutes, and the Council’s explanation for the discrepancy. He was invited to make further submissions and said only that he does not believe the Council at this stage. He said he believes they have altered the numbers who recused themselves. He said he did not accept the Council’s position that there are no minuted or written reasons from those who recused themselves or that the amended minutes are genuine. He said he believes the Medical Council is lying to him and to this Office.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to 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. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
Essentially, the Medical Council’s argument is that no records of the type sought, i.e. records of explicit reasons given for the declaration of a conflict in the circumstances that apply to the recusals in the applicant’s case exist. While the applicant does not accept the Council’s rationale, I am satisfied it has provided a reasonable explanation why no such records exist.
Having regard to the submissions made by both parties, and in the absence of any evidence to the contrary, I am satisfied that the Medical Council has adequately explained why it holds no relevant records. In the circumstances, I find that the Medical Council was justified in refusing access to records relating to the applicant’s request, under section 15(1)(a) of the FOI Act, on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Medical Council’s decision.
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.
Richard Crowley
Investigator