Decision
Mr Q and the Medical Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 120243
Published on
From Office of the Information Commissioner (OIC)
Case number: 120243
Published on
Whether the Council was justified in refusing to release "evidence to back ... up" a specific comment, recorded in its Preliminary Proceedings Committee's minutes of 21 July 2011 (the minutes), on the basis that the requested records do not exist or cannot be found after reasonable searches have been carried out for them (section 10(1)(a) of the FOI Act refers)
30 April 2014
Part 1 of the applicant's FOI request of 23 July 2012 referred to a comment in the minutes, which stated that the applicant had alleged a named Doctor had written to his GP, informing her that the applicant had been offered and declined immediate treatment for his pain. He requested "all personal records relating ... in any way" to that comment. He told the Council that "[t]o make such a serious evidential claim you are obliged to have and produce the evidence to back it up", and that, as he had "never claimed or stated any such thing", he wished "to see the evidence supporting this claim" . Part 2 of the request was headed "Notes relating to [the] FOI request", and set out the applicant's views on how the Council had handled his complaints to it regarding the named Doctor.
In its decision of 20 August 2012, the Council told the applicant that, further to earlier FOI requests he had made, it had already provided him with all records relating to part 1 of his request. It refused further such records under "Section 10" of the FOI Act. Although part 2 of the request did not appear to be a request for all notes held by the Council relating to his FOI request, the Council nonetheless released all records it considered relevant to such an FOI request.
The applicant sought an internal review of the Council's refusal of part 1 of his request on 24 August 2012. He said that a named staff member of the Council had "insisted/certified" that the applicant had made the allegation described above, and, thus, that he wished to obtain "the documentation [the Council says] exists by virtue of [its] insistence that [he] made said claim." The Council's decision of 14 September 2012 upheld its earlier refusal of the requested records, on the basis that all documentation on its FOI and Fitness to Practice Complaint had been fully released to the applicant, and section 10(1)(a) of the FOI Act was applicable.
On 17 September 2012, the applicant sought a review by this Office of the Council's refusal of part 1 of his request.
In carrying out my review, I have had regard to correspondence between the Council and the applicant as set out above; to details of various contacts between this Office and the Council; and to details of various contacts between this Office and the applicant, particularly an email sent to him by Ms Anne Lyons, Investigator, on 15 April 2014, and the applicant's reply of 25 April 2014. I have had regard also to the provisions of the FOI Act.
The scope of this review is concerned with whether the Council has justified its refusal of the applicant's request.
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist, or if reasonable searches have been conducted for a record that cannot be found. A review involving this provision of the Act does not require the Commissioner or this Office to search for records (the judgment of Mr Justice Quirke, in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.)refers).
The comment that prompted the FOI request is contained in the second paragraph of the minutes, which purports to describe the applicant's complaint to the Council. Having compared the applicant's complaint of 14 March 2011 with the description thereof in the minutes, I accept that his complaint did not allege that the named Doctor had written to his GP using the words "immediate" and "declined".
As the applicant is aware, the Council says it holds one letter sent by the named Doctor to the applicant's GP, dated 27 April 2010, which does not contain the words "immediate" and "declined" (although it says that those particular words are contained in letters sent by the Doctor within the hospital in which he worked). More importantly, the Council was unable to find any documentation submitted by the applicant that made the particular allegation at issue. It has offered, accordingly, to correct the minutes so that they properly describe his complaint.
The Council has also given this Office details of how it searched for records of relevance to the applicant's request, which are contained in this Office's email to the applicant of 15 April 2014, and which I see no reason to include again in this decision.
The applicant's email to this Office of 25 April 2014 sets out his dissatisfaction with how the Council handled his complaint, saying it has "now admit[ted] that what [the Council] considered, as recorded in [its] minutes, when dismissing [his] complaint was not [his] complaint". He also is dissatisfied with how the Ombudsman, to whose Office he complained on the matter, has examined his complaints, and how this Office has dealt with earlier reviews, all of which relate to his complaint to the Council.
I do not intend to revisit, in the case at hand, any earlier reviews conducted by this Office. Furthermore, this Office has no role in examining how the Council, or the Ombudsman, dealt with the applicant's complaints.
The applicant states that he does not wish the minutes to be amended, which he maintains is "unacceptable" and "illegal". He says he "still require[s] the release of the documentation supporting [the Council's] falsehoods".
In arriving at my decision, I note that the applicant has stated that he never alleged that the Doctor had written to his GP in the manner described in the minutes, nor is such an allegation contained in his complaint to the Council of 14 March 2011. Furthermore, the Council has been unable to find any other records showing the applicant to have made such an allegation, and has acknowledged its incorrect description of his complaint by offering to amend the minutes accordingly. It is apparent to me that the applicant and the Council agree that the applicant did not make the particular allegation as described earlier. In such circumstances, it is reasonable to conclude that records showing he made the allegation as described cannot and do not exist. I consider it reasonable for the Council to have refused the applicant's request on this basis, in accordance with section 10(1)(a) of the FOI Act. In addition, I consider the Council also to have conducted reasonable searches for the requested records, which is a further basis for it to have refused the applicant's request under section 10(1)(a). I find accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Council's refusal of the requested records.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator