Decision
Dr X and Medical Council
From Office of the Information Commissioner (OIC)
Case number: OIC-149390-Y7D7D6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-149390-Y7D7D6
Published on
Whether the Council was justified in refusing the applicant’s 7-part request for information concerning the issuing of production summonses under section 15(1)(a) of the Act on the ground that the majority of the records sought do not exist and in refusing access, under section 31(1)(a) of the Act, to the one record it identified as relevant to part 4 of the request
10 April 2025
On 25 April 2024, the applicant made a request to the Council, comprising of seven parts, for the following information:
1. The number of Production Summonses issued by the Preliminary Proceedings Committee (PPC) per year for the last fifteen years,
2. The criteria used by the PPC to determine that a Production Summons is proportionate and necessary,
3. The approval process followed following a decision to issue a Production Summons.
4. The legal justification, whether in legislation or case law, for stating on associated cover letters that a Production Summons carries the same weight as a High Court summons,
5. The Medical Council Summary Minutes for 2022 and 2023,
6. The guidelines used by the Medical Council when deciding to investigate a complaint that does not fall under the seven grounds for complaint detailed in section 57 of the Medical Practitioners Act 2007 as amended (the 2007 Act), and
7. The legal justification, whether in legislation or case law, that grants the Medical Council authority to investigate complaints that do not fall into the seven grounds for complaints detailed in section 57 of the 2007 Act.
In a decision dated 3 May 2024, the Council refused the request under section 15(1)(a) of the Act on the ground that no records containing the information sought exist. On 4 May 2024, the applicant sought an internal review of that decision. On 27 May 2024, the Council varied its original decision. While it affirmed its refusal of parts 1 to 3 and 5 to 7 under section 15(1)(a), it said it had located one record coming within the scope of part 4, to which it reused access under sections 29(1) and 31(1)(a) of the Act. On 28 May 2024, the applicant applied to this Office for a review of the Council’s decision, wherein he argued that the release of the information sought was in the public interest.
During the course of the review, the Investigator provided the applicant with details of the Council’s submission in which it outlined its reasons for concluding that the records do not exist. The applicant was invited to comment on the reasons provided by the Council which he duly did.
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 applicant’s comments in his application for review and correspondence with this Office and to the submissions made by the Council in support of its decision. I have also examined the record the Council identified as coming within part 4 of the request. I have decided to conclude this review by way of a formal, binding decision.
In his correspondence with this Office during the review, the applicant said he accepts that the Council no longer summarise their summary minutes. Accordingly, I will give no further consideration to part 5 of the applicant’s request.
This review is therefore concerned solely with whether the Council was justified in refusing parts 1, 2, 3, 6 and 7 of the request under section 15(1)(a) of the Act and in refusing access, under sections 29(1)(a)(b) and/or 31(1)(a) of the Act, to the record it identified as relevant to part 4 of the request.
The Council relied on section 15(1)(a) of the Act to refuse parts 1, 2, 3, 6, and 7 of the request. That section 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 role of this Office in such cases 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. I must also 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 here that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information or answer sought.
It is also important to note that, with one exception, the Act does not require FOI bodies to create records to provide information sought. The exception is set out in section 17(4) of the Act, which states that where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. These steps are those that would involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course of events. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. However, FOI bodies are not required to manually extract information to create a new record in order to provide the information requested, regardless of the applicant’s views on whether it may be practical or feasible to do so. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
The Council provided detailed submissions for its reliance on section 15(1)(a) of the Act in response to the applicants requests 1, 2, 3, 6 and 7.
Part 1 – Number of Summons Issued
By way of background, the Council explained that it receives over 300 complaints per year relating to the conduct of registered medical practitioners which, it said, is the relevant area of regulatory operation which is concerned under this category of the request. It said each of these complaints is examined by the Council’s PPC on their own merits and depending on the nature of the complaint, the PPC may (and has the statutory power to) issue a production summons to a person in order to compel the production to the PPC of records. It said it undertook searches of its records and systems and consulted with officers who have a detailed knowledge of, and who work in, the relevant area, as to whether it had recorded information concerning the number of production summons issued an any given year, and that it determined from those steps that it did not hold the information sought in any record. It said that in order to provide the information, all of the thousands of case files opened over the relevant 15-year period would have to be checked, both in their paper and electronic formats, in order to determine whether a production summons had issued in respect of that file. It added that not all of the case files over the last 15 years are exclusively electronically held and that the Council moved to almost exclusively electronic records in 2020.
Part 2 – Summons Criteria
The Council said it undertook searches of its records and systems and consulted with officers who have a detailed knowledge of, and who work in, the relevant area, as to whether a record exists of the criteria in general which are used by the Council to determine that a production summons is proportionate and necessary, and that it determined from those steps that it did not hold such a record. It provided this Office with a copy of the PPC’s Procedures and noted that while the Procedures address the issuing of production summonses, they do not deal with the criteria which are used to determine whether a production summons should be issued in a given case. It said that in reality, the decision to issue a production summons is made on a case-by-case basis by the PPC, taking into account the PPC’s powers under the 2007 Act. It said no general set of criteria exists to guide the PPC in this decision making process.
Part 3 – Approval Process
The Council said it undertook searches of its records and systems and consulted with officers who have a detailed knowledge of, and who work in, the relevant area, as to whether a record exists of the approval process followed following a decision to issue a production summons and that it determined from those steps that it did not hold such a record. It again noted that while the PPC’s Procedures address the issuing of production summonses, they do not deal with the specific approval process followed following a decision to issue a production summons. It said the PPC considers and directs the issuing of a production summons on a case-by-case basis, under the powers granted by the 2007 Act. It said the process for a new complaint received is that it is assigned to a case officer, who is a member of the executive of the Council, and who creates a case plan and presents it to the PPC which then meets once every six weeks or so. It explained that in the case plan, the case officer will suggest to the PPC (which will have received and read the content of the complaint in advance) that a certain number of items in relation to each case be actioned and that this will include, where relevant and appropriate, the issuing of a production summons for records. It explained that it is a matter for the PPC at this stage to consider whether it is relevant and appropriate or not to seek the records relevant to the subject matter of the received complaint. It said that if the PPC deems it appropriate, it will ask the case officer to proceed and issue the production summons and the minutes of the PPC meeting will record that decision.
Parts 6 and 7 – Guidelines and legal justification
In response to Parts 6 and 7, the Council said the premise of those parts of the request appear to be that the Council would hold any record of guidelines in general or of legal justification which might be used by the Council when deciding to investigate a complaint that does not fall under the seven grounds for complaint detailed in Section 57 of the 2007 Act as amended. It said parts 6 and 7 appear to be designed to extract some kind of admission from the Council that it investigates complaints falling outside the scope of its authority or powers under the 2007 Act. It said no such admission is conceded by the Council.
The Council said that having considered the wording and premise of parts 6 and 7 of the request, and having undertaken appropriate searches of its records and systems and consulted with its relevant officers who have detailed knowledge of these matters (i.e. decision-making in relation to whether complaints fall within the scope of the Council’s authority and powers under the 2007 Act), the Council determined that it does not hold any such records.
Applicant’s Response
As I have outlined above, the details of the Council’s submissions were provided to the applicant during the review. As a general overall response, the applicant said that, given the extraordinary power that is wielded by the PPC in compelling the release of information, it is in the public interest that the information sought should be released.
In respect of Part 1 specifically, the applicant said the current Chairperson has been in his role since 2019 and has been the single source of the production summons since that time. He said it is not believable that the Chairperson cannot provide a record on how frequently he issues a Production Summons.
In respect of Parts 6 and 7, the applicant said that while there is no section of the 2007 Act which gives authority to the PPC, the Fitness to Practice Committee or the Medical Council to investigate, to issue production summons, to issue findings or to sanction medical practitioners in relation to complaints that fall outside of the section grounds for complaint in section 57 of 2007 Act, the PPC does, indeed, investigate complaints that are not covered by section 57 of the 2007 Act.
My Analysis
I should say at the outset that the question of whether or not there is a public interest in the Council providing the information sought by the applicant is irrelevant to my consideration of whether or not it holds, for the purpose of the FOI Act, records that contain the information sought. As I have explained above, If the Council does not hold any records containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
In relation to Part 1, I accept the Council’s submission that the information sought is contained within the thousands of compliant files held, many of which are held in hard copy only, and that it does not hold a single record that contains the number of Production Summonses issued by PPC each year for the last fifteen years. As I have outlined above, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. I accept that the information sought in this case is not all held electronically and that a manual examination of many hard copy files would also be required to collate the relevant information. Such steps are not required under section 17(4). Accordingly, I am satisfied that the Council was justified in refusing Part 1 under section 15(1)(a) of the FOI Act.
In relation to Parts 2 and 3, I accept the Council’s submission that it does not hold any records containing the information sought. I accept that the PPC’s procedures are as laid out in the Procedures document that the Council made available to this Office and I note that that those procedures do not contain the information sought. The applicant has not provided any evidence to suggest that the records do, in fact exist. Rather, his view appears to be that the Council should create a record in order to provide the information sought. The Act does not require this. It is important to note that the FOI Act is concerned with providing access to records actually held by public bodies as opposed to records that a requester believes should exist. Accordingly, I am satisfied that the Council was justified in refusing Parts 2 and 3 under section 15(1)(a) of the FOI Act.
In relation to Parts 6 and 7, while the applicant considers that the PPC investigate complaints that are not covered by section 57 of the Medical Practitioners Act, the Council’s position is that it does not do so. I find it difficult to accept that the applicant would genuinely expect the Council to hold records that contain guidelines or legal justification for the Council to act outside of its statutory authority, regardless of whether or not he believes it has done so. I am satisfied that the Council was justified in refusing Parts 6 and 7 under section 15(1)(a) of the FOI Act.
Accordingly, I am satisfied from the submissions in this case that the Council was justified in refusing access to the records sought in parts 1, 2, 3, 6, and 7 of the applicants request under section 15(1)(a) of the Act on the grounds that no record exists containing the information sought by the applicant and that the Council are not required to create a record containing the requested information pursuant to section 17(4) of the Act.
The Council relied on sections 29(1) and 31(1)(a) of the Act to refuse access to a record it identified as coming within the scope of Part 4 of the applicant’s request. As section 31(1)(a) is a mandatory exemption, I will consider this provision first.
Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in court proceedings on the ground of legal professional privilege (LPP). This mandatory exemption does not require a consideration of the public interest test. There are two types of LPP:
• Legal advice privilege concerns confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice
• Litigation privilege concerns confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.
In its submissions, the Council said it did, in fact, provide the information sought at Part 7 in its internal review decision, wherein it referred the applicant to Sections 59(11) and Sections 66(1), 66(2) and/or 66(9) of the 2007 Act. It said the relevant sections confirm that a production summons issued by the PPC (which, per Section 59(11) is equivalent to the issuing of same by the Fitness to Practice Committee) is the equivalent of any formal process capable of being issued in an action for compelling the production of records, and so on that basis the equivalent of a High Court summons compelling the production of records. It said this is the primary legal justification of the Council in respect of its statements that a production summons carries the same weight as a High Court summons, and, to that extent, the applicant’s request for information was answered by the Council.
The Council added that notwithstanding this, the Council refused access to it identified as relevant which it described as legal advice it received from legal advisors in relation to production summonses issued by the PPC and which may record advice coming within the scope of Part 4. The Council provided this Office with a relevant extract from that advice, solely for the purposes of conducting the review. It said the record contains legal advice prepared for the Council by a legal adviser acting in their professional capacity in relation to the Council’s power to compel documents from medical practitioners and/or third parties.
In his correspondence with this Office, the applicant said that for legal privilege to apply, the document must form part of legal advice, and not just legal assistance. He said Irish Courts have indicated that legal privilege does not apply in the instance of legal assistance, where it is not envisaged that there is a possibility of contentious litigation.
During the review, this Office’s Investigator sought a copy of full record that contains the extract identified by the Council. The full record comprises legal advice provided to the Council in respect of the interpretation and application of the 2007 Act. I should add that this Office’s understanding of the term "legal assistance” is that it does not go beyond - in the words of McCarthy J's judgment inSmurfit Paribas Bank Limited v AAB Export Finance Limited [1990] ILRM, 58 - "communication of fact leading to the drafting of legal documents and requests for the preparation of such...". Having examined the contents of the extract at issue, I am satisfied that it was prepared for the purpose of giving legal advice, as opposed to legal assistance. I find, therefore, that the Council was justified in its decision to refuse access to the record under section 31(1)(a) of the FOI Act.
As I have found the record to be exempt under section 31(1)(a) of the Act, I do not have to consider the applicability of section 29(1)(a)(b).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse parts 1, 2, 3, 6 and 7 of the applicant’s request for certain records relating to the issuing of production summonses under section 15(1)(a) of the Act on the ground that the records sought do not exist and in refusing access, under section 31(1)(a) of the Act, to the record it identified as relevant to part 4 of the request.
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