Decision
Mr Y and the Medical Council
From Office of the Information Commissioner (OIC)
Case number: 150161
Published on
From Office of the Information Commissioner (OIC)
Case number: 150161
Published on
Whether the Medical Council has justified its refusal to release certain records concerning its accreditation of the Royal College of Surgeons in Ireland - Medical University of Bahrain (the MUB)
Conducted in accordance with section 22(2) of the FOI Act, by Peter Tyndall, Information Commissioner
07 December 2016
On 20 February 2015, an individual (Ms X) made a lengthy FOI request to the Medical Council for 10 categories of records, dating from 14 February 2011, regarding the Medical Council's accreditation of the MUB. I will only set out those parts of the request the decision on which is under review by this Office. They are:
"1. RCSI's self-accreditation report in line with World Federation for Medical Education ("WFME") standards ahead of the Council's accreditation.
7. All records including, but not limited to, meeting agendas, briefing notes and minutes at both the internal committee levels and Council level regarding the accreditation of [the MUB] from 2011-present. This would include records dealing with potential conflicts of interest with (sic) involving members of the Council and the accreditation team within RCSI. I formally request all supporting documents provided during these meetings.
8. Records referenced in the Report on Accreditation Inspection of [the MUB] (December 2014), namely the document entitled "Teaching professionalism, ethics and human rights - [the MUB]" (September 2014).
10. Any legal advice or opinion on the issue of accrediting [the MUB]."
It may be helpful to set out here some context around the creation of the records. The MUB was established in Bahrain in 2004 to provide healthcare education and training to students from Bahrain and beyond, and has over 1200 students enrolled. Under the Medical Practitioners Act, 2007, the Medical Council is responsible for approving programmes of medical education and the bodies which deliver these. In 2011, the MUB sought accreditation under the Medical Practitioners Act, 2007. As part of this process, the MUB was required to provide various information and documentation, and an accreditation visit/inspection took place in October 2014. A report of this was prepared by the Medical Council in December 2014, which granted MUB accreditation and also made a number of recommendations. The records at issue relate to this accreditation process.
Ms X's request contained her home address, qualifications, and concluded by referring to her role as a researcher with a particular organisation (the organisation).
The Medical Council's decision, dated 21 April 2015, granted access to some records in full, some in part, and withheld the rest. On 24 April 2015, Ms X sought an internal review of certain aspects of the decision. The Medical Council's internal review decision of 19 May 2015 affirmed its earlier decision on the records concerned.
On 29 May 2015, the applicant, using his home address, sought a review by this Office of the Medical Council's decision. He said he was doing so on behalf of Ms X, whom he described as "his colleague in [the organisation]". Ms X later confirmed to this Office that the applicant had her authority to apply to this Office on her behalf.
In August 2015, the Medical Council released to Ms X a number of records it had previously told her would be released but which were "inadvertently omitted", along with "supporting information" that was being released "for the sake of thoroughness." In December 2015, the Medical Council found further relevant records, some of which it released to Ms X, and the rest of which it withheld.
I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, the Medical Council, the Royal College of Surgeons in Ireland (the RCSI) and the applicant. I have also had regard to the records at issue, copies of which were provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.
I have not consulted with the MUB. It is described on the RCSI website, as "a constituent university". Accordingly, this Office consulted with the RCSI (an FOI body in its own right) on the initial presumption that the MUB was part of the RCSI and therefore subject to FOI. At no point in the review did the RCSI suggest that direct contact with the MUB would be necessary or more appropriate. On the contrary, the RCSI has represented the MUB's interests in this case as well as its own, by making arguments in relation to all of the withheld records and by consenting to the release of certain MUB records by the Medical Council.
This review is confined to whether or not the Medical Council has justified its refusal of those records specified in Ms X's internal review application i.e.
Category 1: All withheld records.
The nine records concerned were listed on the Medical Council's schedule of records as follows: (i) "Addendum to IMC submission"; (ii) "Additional evidence"; (iii) "Appendices to 2014 submission"; (iv) "Medical Graduate Profile - Copy"; (v) and (vi) RCSI Bahrain Submission June 2014 and June 2013; (vii) "RCSI Self-Assessment"; (viii) "Self-Assessment by RCSI Bahrain 5th Aug 2014"; and (ix) "Blueprint for RCSI Bahrain Medical Programme".
Record 1(i) is a copy of pages 1822-23 in record 1(ix), which the RCSI consented to the release of by the Medical Council. I see no need to consider record 1(i) further.
Record 1(ii) was fully withheld. It is a general list of documents supplied to the Medical Council in support of the MUB's accreditation application.
Record 1(iii) has been partially released. Although listed as one record, it contains various poorly numbered documents, amounting to 543 pages of information. The withheld material includes documents detailing various MUB internal processes and assessments of the MUB's strengths and weaknesses.
Record 1(iv) is included in records 1(v) and (vi) so there is no need to consider it separately.
Records 1(v) and (vi) are two MUB responses to a WFME questionnaire that may be described as the MUB's self-assessments as to how it met the various requirements for Medical Council accreditation.
The Medical Council, further to queries from this Office, confirmed that the records listed at 1(vii) and 1(viii) are the same document. I see no need to consider record 1(viii) further. Record 1(vii) contains MUB's self-assessment of how it meets the requirements for accreditation, and appears to be based on, or is a summary of, records 1(v) and/or 1(vi).
Record 1(ix) is the "Blueprint for RCSI Medical Programme". Although listed as one record, it is comprised of four folders of documents, and amounts to over 2,300 pages of information. The "record" has been partially released. The withheld material concerns the MUB's internal processes, procedures and protocols, various assessments of its performance and internal organisational information. It also includes details of arrangements made between the MUB and various Bahraini third parties for the provision of medical training.
Category 7: Ms X sought a review of "any redaction of information contained in any of the documents referred to under" this Category.
The Medical Council partially withheld one record under section 35(1)(a). I will refer to the remainder of this record as record 7A.
Various material was redacted on the basis of not being relevant to the request. On 3 March 2016, the Investigator told the applicant that this review would not encompass such material. The applicant did not take issue with this approach in his reply. I have not considered any such information, accordingly.
The Medical Council partially withheld other records on the basis that the information concerned attracted legal professional privilege. However, it was not easy to determine, from the records copied by the Medical Council to this Office, what information had been so withheld. According to those records, to the Medical Council's responses to various queries put to it by this Office, and to details of records that apparently have now been released by the Medical Council, I understand that at this point the Medical Council is claiming that legal professional privilege applies to the following:
The applicant was notified on 30 June 2016 that the above details relevant to Part 7 remained for consideration.
My review does not extend to the records relevant to Category 10 that the Medical Council also refused under section 31(1)(a), because the internal review application did not seek a review of the refusal of those records.
Category 8: The requested record was fully withheld. I have not considered this record further because it is a copy of pages 1802-1818 of record 1(ix).
Category 10: Ms X sought a review of only one record i.e. that listed in the Medical Council's schedule as the "Assessment Blueprint Example". This record was fully withheld. However, I have not considered it further as it is the same as one of the documents included in record 1(iii), and also pages 15-16 of record 1(ix).
My review cannot consider, or make any findings on, the Medical Council's procedures for accrediting the MUB, or on issues such as whether the Bahraini medical system complies with human rights obligations. While the applicant appears to consider otherwise, it is not for me to determine if it was necessary for the MUB to provide all the documentation it supplied (that is, the records at issue) to the Medical Council. I must simply deal with the records before me.
Before I set out my findings, there are a number of matters on which I must comment.
Potential Discontinuance of Review
I gave careful consideration to whether it was appropriate for me to discontinue the review under section 22(9)(vii) of the FOI Act. Section 22(9)(a)(vii) provides that I may discontinue a review under this section if I am, or become, of the opinion "that accepting the application would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of [my] Office." Section 22(9)(b) provides that in determining whether to discontinue a review under section 22, I shall act in accordance with my own discretion.
When the application to this Office was made, the withheld records were numerous; I cannot say categorically how many records were at issue. The Medical Council supplied two large folders of badly scheduled and illegibly numbered documents purporting to comprise all material relevant to the request other than record 1(ix). While it included record 1(iii), which is made up of more than 500 pages of information, it also included material excluded by the applicant at internal review stage and which I have no remit to consider. There is also some duplication of contents between these two folders and the further four, containing over 2,300 pages, of relevance to part 1(ix).
More significant than the volume of records in considering section 22(9)(a)(vii) in this case, however, is the nature of that information.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the decision making FOI body shows to my satisfaction that its decision was justified. The Medical Council's submissions contained only very general arguments against release and did not meet the requirements of section 22(12)(b). However, a decision by me to direct release of the records on this basis alone would have affected the interests of the MUB and possibly other parties. This would not be in keeping with the requirements of the FOI Act, which gives third parties a right to make submissions to me, and which submissions must be taken into account before a decision is made that might affect their interests. For reasons already explained, my Office consulted with the RCSI in November 2015.
On 11 December 2015, the RCSI made general arguments to my Office citing various provisions of the FOI Act, including some that, as a third party rather than an FOI body whose decision is under review, the RCSI cannot rely on. This letter said it would provide a supplemental submission "forensically map[ping] the more generally-made submissions herein" to the records, subsequent to meeting with my staff to "go through some of the records" and "orally articulate [its] rationale for applying exemptions". The submission contained other comments that, essentially, sought to manage how I should conduct my review.
It was apparent at that stage that completion of the review would take considerable resources within my Office and that this would affect work on other cases. Having considered the matter, however, I decided it would not be appropriate to discontinue the review at this stage of the process. However, if a similar case came before me in future, I would consider exercising my discretion to refuse to accept, or discontinue, the review, under section 22(9)(a)(vii). Alternatively, I would give serious consideration to remitting the matter back to the FOI body to deal with the request properly.
Time Taken To Complete Review
It is regrettable that it has taken so long for this review to conclude. However, the main reasons for this, as already mentioned, were outside of my Office's control. I have already referred to the Medical Council's poor collation and scheduling of the records subject to review, and I will comment later on its lack of real participation in this review.
While, at my Office's request, the Medical Council prepared additional schedules, they were not detailed enough to ask the Medical Council to provide them to the applicant with a view to narrowing the scope of the review. Neither was it feasible or appropriate for me, as the RCSI suggested in June 2016, to "ascertain, in consultation with the requester, whether the scope of the records at issue can be refused in line with what the requester actually wants, and what the Commissioner can then ascertain is not contained in various records."
On 24 February 2016, the RCSI was invited to make a supplemental submission that would, in its own words, "forensically map" the general arguments of December 2015 to the records. It was given additional time to do so due to the volume of material. My staff later had to give the RCSI access to the records that had been sent to this Office because of the "disorganised state" in which the Medical Council presented the RCSI with copies of those records. It was necessary to do so to ensure that any arguments the RCSI might make on specific records would correspond with the records being reviewed by this Office.
In April 2016, the RCSI queried the identity of the original requester, and in light of certain developments, argued that the review had been "rendered moot". This further delayed its submission, which it made "without prejudice" to these views, on 10 June 2016.
The submission identified those records that the RCSI consented to being fully and partially released by the Medical Council. I understand that these were subsequently released by the Medical Council. Although 17 pages long, the RCSI submission was general. It again asked to meet with my staff "to review the records at issue and to demonstrate where the records should be part-granted and which exemptions apply in each instance". That submission also said it "incorporated" the views of the Medical Council.
In such circumstances, I had to give careful and quite lengthy consideration as to the most appropriate decision to make. This further delayed completion of the review.
The Medical Council
Handling of the Request
Ms X's original request was, in my view, very broad in nature and undoubtedly encompassed a very large volume of material. It sought records spanning a four year time frame. Eight of the 10 categories of record sought were broadly framed (i.e. in terms of "information on"; "records on"; and "records including but not limited to"). Nonetheless, the Medical Council did not appear to consider section 15(1)(c) of the FOI Act, which is an administrative provision that may be applied to voluminous requests. Furthermore, in the context of section 15(4) or otherwise, the Medical Council seems to have made no effort to engage with the requester in an effort to eliminate unwanted records.
Section 22(12)(b) and the burden of proof
The requirements of section 22(12)(b) and the need for it to justify its decision were highlighted to the Medical Council several times during the review. Nonetheless, its submissions were general and did not refer to specific records or types of records. The RCSI may well be in a better position than the Medical Council to explain, for instance, why certain RCSI or MUB information is commercially sensitive, and any submission made by the RCSI in this regard must be taken into account in my review. However, this does not absolve the Medical Council as the deciding FOI body from the requirement to comply with section 22(12)(b).
Three provisions in the FOI Act are relevant to third parties i.e. sections 35 (confidential information), 36 (commercially sensitive information) and 37 (personal information). These provisions were presumably deemed by the Oireachtas to cater for all circumstances where third parties' interests might be affected by release of records. In addition to making arguments concerning these three provisions, the RCSI also cited the discretionary provisions of sections 29, 30, 32 and 40. While a third party's submissions may require me to consider whether a mandatory exemption applies, such as that concerning contempt of court, for example, it is only a decision making FOI body that can rely on discretionary exemptions. In the circumstances, my Office made it clear to the Medical Council that it could make submissions to this Office regarding further exemptions. It did not do so.
Instead, the RCSI's submission of 10 June said that it "incorporated and comprised" the submissions of both the Medical Council and the RCSI. This is not appropriate. When again reminded of its obligations under section 22(12)(b), the Medical Council replied on 17 June 2016 that it "deemed that the documents submitted by the RCSI included commercially sensitive records and had been provided on the understanding that the information would be treated in confidence. These reasons have been provided to the Information Commissioner and we note that this (sic) now a matter for the Commissioner". It is interesting to note that this reply did not refer to any of the RCSI's claims for exemption other than those concerning commercial sensitivity or confidentiality. Accordingly, I have not had regard to the RCSI submissions in so far as they concern discretionary exemptions which have not been claimed in the Medical Council's own decisions or in its submissions to my Office.
I want to make it very clear that if all of the records related only to the Medical Council, I would have had no hesitation in directing their release some time ago, with the exception of information that appears, on its face, to attract a mandatory exemption. However, as I have already made clear, such an option is not open to me in a case where third party interests might be affected by release of the records.
The RCSI
Request for Meeting
The RCSI asked, in March 2016 and at other points in the review, to meet the Investigator to "go through the records ... in person, rather than by way of extensive and laborious written submissions alone." Its June submission says that it "did not necessarily expect [the Investigator] to bind the Commissioner by expressing a view on a matter on which [she] might not be able to do so. We are, in such cases, communicating issues to your office generally through [the Investigator], in order that [she] might then ensure that they are responded to by whomever is authorised to decide on the relevant matter(s). "
I acknowledge that a significant burden fell on the RCSI in this case. However, I consider the above suggestions for the conduct of a review to be inappropriate as well as impracticable.
Confidentiality of Submissions/Further Opportunity to Comment
The RCSI requested that its submissions be kept confidential. It also asked that it (and presumably the Medical Council) would be given notice of any possible decision that may impact on them, and given further opportunity to comment.
As the RCSI is aware, I am required to give reasons for my decisions. I will be circumspect in describing matters where particularly sensitive details have been highlighted in a submission. This is not the case here and it would not be appropriate for me to withhold from my analysis any relevant arguments in the RCSI's submission on the basis of a claim that it is confidential in its entirety.
Furthermore, the RCSI should be well aware of this Office's published procedures for the conduct of reviews generally, which have been in operation since mid-2014. One opportunity is given to the decision making FOI body, and to third parties, to make submissions. I am satisfied that the RCSI had more than adequate opportunity to identify the material it was particularly concerned about being released, to make submissions and, where relevant, to persuade the Medical Council that it should rely on additional exemptions. To give further latitude would leave my Office open to allegations of bias in favour of the RCSI and/or the Medical Council.
Identity of the Requester
In April 2016, the RCSI told this Office that the Companies Office had struck off the organisation for which the original requester, Ms X, worked. In essence, it maintained that the original request had been made by the organisation, and that the request and review must "now fall away". It referred to the fact that the application to this Office (presumably copied to it by the Medical Council) described the applicant as being Ms X's colleague in the organisation. It said that the applicant could not have had any right to make an appeal to this Office, unless he was doing so on behalf of the organisation. The RCSI also saw it in some way significant that this Office did not correct various references to the organisation as requester in its correspondence with this Office.
The RCSI copied its views to the Medical Council, which the RCSI said "may wish to comment ... also". It is disappointing that the Medical Council chose to remain silent, given that it, as decision maker and internal reviewer, must have some opinion on the matter. I note that it issued its original and internal review decisions to Ms X's home address. Its initial schedule of records refers to the request having been made by Ms X, not the organisation.
That said, it is a matter of fact that the request, internal review application, and application to this Office, refer to the organisation.
However, Ms X is an identifiable legal person in her own right. She confirmed to this Office that the applicant had her authority to make the application for review to this Office on her behalf. The situation is no different to a solicitor or other representative making an application to this Office on behalf of a person who had already made an FOI request and internal review application in their own right.
Accordingly, I do not accept that the application to this Office has "fall[en] away". Furthermore, section 22(12) does not explicitly provide for the discontinuance of a review where the requester "cease[s] to exist".
Finally, this Office does not generally disclose or confirm to third parties the identity of a requester. This is because release of records under FOI is equivalent to their release to the world at large, and because a requester's reasons for making a request are, by and large, irrelevant to my consideration of a review. Thus, the fact that my Office did not dispute the RCSI's references to the organisation as requester and/or applicant is irrelevant.
Issues of Relevance
Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the resulting copy would be misleading (section 18(2) refers). While the Medical Council has released details from certain records while redacting other parts, I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extraction of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
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. It follows that the reasons I can give for my decision and the analysis of the issues in this case are limited.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
Further Records - Effective Refusal Annulled
In December 2015, the Medical Council located additional records of relevance to the request. As I understand it, the records were located on foot of a internal Medical Council review of FOI procedures and policies generally. According to the Medical Council, a number of experienced staff members who had not been involved in processing the request, or in this Office's review, examined the request "as an example of a complex request which spanned a number of Medical Council functions". It said that the "resources which were applied to this exercise in terms of time and personnel greatly exceeded the resources which could realistically be applied by an FOI body on an ongoing basis". The Medical Council granted access to some, but not all, of the records that were located.
The applicant, noting that this was the second time that material had been released after the deadline for making a decision on the request, argued that the Medical Council should be reprimanded for breaching the requirements and deadlines of the FOI Act. He also seemed to suggest that I should direct release of all records at issue because of this development. However, I have no remit to direct the release of records on the basis that an FOI body did not identify those or other records outside of the usual deadlines.
The Medical Council's failure to find these records on foot of the original request amounts to an effective refusal of the records concerned. The letter sent with the released records, while referring to provisions of the FOI Act, is not a valid FOI decision. Furthermore, the records have not been subject to an internal review. I do not consider it appropriate for me to act as either an original decision maker or internal reviewer in cases such as this. Accordingly, I formally annul the Medical Council's refusal of access to the records concerned. I would normally also direct the FOI body to undertake a fresh decision making process on such records. However, I am not doing so in this case because I understand that a fresh request has already been made for, and a decision issued on, the records concerned. Any refusal by the Medical Council to release those records is subject to the usual rights of internal and external appeal.
Section 31(1)(a)- Legal Professional Privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
Consideration of section 31(1)(a)
The applicant's internal review application says that the information must go beyond mere advice as to what the law is, and must involve a communication seeking or giving advice as to what should prudently and sensibly be done in the relevant legal context" (Ahern v Mahon [2009] 1 ILRM 458). This argument was repeated in the OIC application, along with the view that "mere references to matters of a legal nature in the documents in question do not, therefore attract the benefit of legal processional privilege".
The Medical Council's entire submission in relation to section 31(1)(a) said that the redacted details "concern discussion by Council/committee members relating either to the obtaining of legal advice, or having received that advice, its impact for the Medical Council and/or what action, if any, it should take. It relates therefore, ... 'to advice as to what should prudently and sensibly be done in a relevant legal context'." The submission ended by saying that the Medical Council is "therefore claiming legal advice privilege in relation to this documentation."
I see no need to consider litigation privilege in the circumstances. I accept that any details in the records at issue, which disclose the details of confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, attract legal privilege. However, the privilege does not automatically extend to details of broader discussions except in so far as they divulge details of the legal advice sought or received. Furthermore, I see no basis to direct that details be withheld where it is not apparent from their face that they attract legal advice privilege in the absence of more detailed argument from the Medical Council than that set out above.
Having considered the foregoing, and the requirements of section 18:
The details withheld from the first sentence under the heading numbered "3" on page 778 are, in my view, already evident from the Medical Council's decision making on this FOI request and cannot be confidential. I do not accept or find that section 31(1)(a) applies to these details.
Section 29 - the Deliberative Process
Page 857 was amongst the details apparently considered by the Medical Council as relevant to Category 7, and therefore the details withheld from it must have been initially exempted under section 31(1)(a). However, during the review, the Medical Council indicated that it was now relying on section 29 in relation to the details concerned.
Section 29(1) is a discretionary exemption. It contains two independent requirements. It provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. While the provision does not contain any "harm test", the matter of whether release would be contrary to the public interest generally requires a public body to identify a harm that would flow from the release of the details.
The Medical Council's change of position on page 857 was indicated in a table of records sent to this Office on 9 October 2015, rather than in any written submission. It did not explain why it considered the process referred to in the record to amount to a deliberative process. It did not refer to the public interest at all. Given the dearth of submission, and the general nature of the withheld information, I see no need to engage in an exhaustive analysis as to why I do not consider the withheld details to be exempt under section 29.
The details in my view concern an administrative process, not a deliberative one, which must, by its nature, have long concluded. Furthermore, I cannot see, or has it been explained why, any harm could be caused to the "deliberations" concerned, or to the Medical Council's deliberative processes generally, if the details were to be released now, or even if they had been released on foot of Ms X's request of 20 February 2015.
I find that section 29 does not apply to the details withheld from page 857. However, I find a person's name in the record to be personal information that is exempt under section 37(1) of the FOI Act, and that none of the exceptions to section 37(1) (including the public interest balancing test at section 37(5)(a)) require its release.
Other Provisions Relied On
The Medical Council's submissions did not rely on any other provisions of the FOI Act in relation to the records relevant to part 7 that it withheld under section 31(1)(a). Accordingly, I direct the release of any details set out above that I have not found to be exempt.
The Remaining Records - Records 1(ii), 1(iii), 1(v), 1(vi), 1(vii), 1(ix) and 7A
As I understand it, the remaining records relevant to part 1 were provided to the Medical Council during the accreditation process. Record 7A is the MUB's response to various recommendations in a report issued by the Medical Council after its accreditation visit in October 2014. The report concerned, which also granted the requested accreditation, is available on the Medical Council's website.
The Medical Council's initial and internal review decisions referred to section 35(1)(a) of the FOI Act. Its submissions to this Office referred generally to confidentiality. The RCSI maintains that the Medical Council owes the MUB a duty of confidence in relation to those records it has not consented to being released by the Medical Council (section 35(1)(b) of the FOI Act refers).
Section 35(1) provides for the mandatory refusal of an FOI request for a record that, generally speaking, contains information given in confidence or contains information subject to a duty of confidence. However, section 35(2) is also relevant. This provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider."
While the relevance of section 35(2) was twice highlighted to the Medical Council, it addressed the provision only in general terms, and did not deal with its application in the circumstances of this case. While the Medical Council has therefore not complied with section 22(12)(b), I must nonetheless consider the application of section 35(2) in order to protect the third party rights that would be affected by release of the material concerned. It has not been argued that the MUB is providing a service for the RCSI or the Medical Council, whether under a contract for services or under an administrative arrangement, at any point in the review. Neither have I any reason to consider this to be the case.
Section 35(2) and MUB as FOI Body
Sections 6(1)(a) to (h) of the FOI Act set out what "shall be a public body for the purposes of [the FOI] Act", as follows:
(a) a Department of State;
(b) an entity established by or under any enactment (other than the Companies Acts);
(c) any other entity established (other than under the Companies Acts) or appointed by the Government or a Minister of the Government, including an entity established (other than under the Companies Acts) by a Minister of the Government under any scheme;
(d) a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government;
(e) a subsidiary (within the meaning of the Companies Acts) of a company to which paragraph (d) relates;
(f) an entity (other than a subsidiary to which paragraph (e) relates) that is directly or indirectly controlled by an entity to which paragraph (b), (c), (d) or (e) relates;
(g) a higher education institute in receipt of public funding;
(h) notwithstanding the repeal of the FOI Act 1997, and subject to the FOI Act 2014, any entity that was a public body (including bodies or elements of bodies prescribed as such) within the meaning of the FOI Acts 1997 & 2003 on the enactment of the FOI Act 2014.
Section 6(1)(a) is not relevant in this case.
The RCSI, which was established by Royal Charter, was prescribed as a public body for the purposes of the FOI Acts 1997 and 2003. Accordingly, section 6(1)(h) applies to the RCSI. The applicant's position that the MUB "is a constituent element of the RCSI". He is presumably arguing that as the RCSI is subject to FOI, then the MUB must be also. He argued that the "[the MUB] is treated as a 'mirror-image' of the RCSI in Dublin, the curriculum of its medical school and examination are the same." He said that the RCSI and its constituent colleges are reviewed according to Medical Council standards under the terms of the Medical Practitioners Act, 2007 and therefore the MUB "is subject to Irish standards including those of the Medical Council". He also referred to a document that he says is no longer on the RCSI website, which lists overseas records amongst those the RCSI considers to be subject to FOI, including those of the MUB.
It is a matter of fact that the RCSI website describes the MUB as a "constituent university" of the RCSI. However, the RCSI has said that the MUB is an entirely separate entity to it, and is a "company registered and resident in Bahrain". The RCSI provided a copy of a licence issued by the Kingdom of Bahrain Ministry of Education, and a "Registration Certificate of a Single Person Company" issued by the Kingdom of Bahrain Ministry of Industry & Commerce. The licence is in the form of a letter addressed to the RCSI, and refers to the latter's application for a licence to establish a facility to provide health education and training in Bahrain. The licence says that it has been granted "under the name Royal College of Surgeons in Ireland - Medical University of Bahrain". According to the "Registration Certificate ...", the "Royal College of Surgeons in Ireland - Medical University of Bahrain" has been registered in Bahrain as a "Higher Educational Institution".
Accordingly, I accept that the MUB is registered in Bahrain as a separate entity to the RCSI, and I have no reason to consider section 6(1)(h) to apply to the MUB itself.
It is not apparent that the applicant contends the other elements of section 6(1) are relevant in this case. In any event, I see no reason to consider sections 6(1)(b), (c), or (d) to apply to the MUB. In saying this, I consider the relevant provisions to refer to Irish enactments, Governments, or Ministers, as appropriate. As I have no reason to consider sections 6(1)(b), (c) (d) or (e) to apply to the RCSI, I have no basis to consider section 6(1)(e) or (f) to apply to the MUB. The RCSI says that the MUB is not a higher education institution as defined in the Higher Education Act; neither is the MUB in receipt of public funding. I therefore have no basis to consider section 6(1)(g) to apply to the MUB (again, I consider the provision to refer to Irish higher education institutes and Irish public funding).
Accordingly, I find that the MUB is not an FOI body. It is possible for it to be owed a duty of confidence in respect of records it created or provided to the Medical Council, or which were so provided on the MUB's behalf.
Section 35(1)(b)- Breach of duty of Confidence
Section 35(1)(b) provides for the mandatory refusal of a record where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that schedule) or otherwise by law.
It has not been argued that disclosure of the records would breach a duty of confidence provided for by a provision of an agreement or an enactment. Rather, the arguments made by the RCSI suggest that release of the records would breach an equitable duty of confidence (a duty provided for "otherwise by law"). In considering if there exists such a duty of confidence, I have regard to the three elements of what are generally known as the "Coco" tests ( Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41):
"First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
The Parties' Arguments
It is the RCSI's position, essentially, that relevant information was provided to the Medical Council for the limited purpose of seeking its accreditation of the MUB, as provided for Part 10/section 88 of the Medical Practitioners Act 2007. It said that the records include documents specifically created by the MUB for the Medical Council's accreditation visit, and records "originating from third parties", which would have been submitted either by them or the MUB on the basis of confidentiality.
I also consider other arguments in the submission concerning section 36 to be relevant to my consideration of section 35(1)(b). The RCSI referred to records, such as internal policies, which it says that although "not perhaps novel or surprising in [their] content", could prejudice a party's competitive position in the conduct of its business or profession, if disclosed. It said that release of such documents can help competitors to develop a similar or better policy etc, than it would "otherwise have taken them time, thought, research, cost and effort to assemble." It is reasonable to take these comments as an argument that such material has the necessary quality of confidence about it and was given in circumstances importing an obligation of confidence.
The applicant disputed that the records have the necessary quality of confidence about them or that they were imparted in circumstances importing an obligation of confidence, because the Medical Council's accreditation function "is performed for the protection and benefit of the public." This does not, in my view, mean that it must publish all information provided to it in the course of the accreditation process. He also said that the Medical Council's website makes it clear that transparency "applies to all parts of the accreditation cycle". I do not consider this general comment to have the broad meaning that the applicant has taken from it.
He also notes that section 88 (2)(h) of the Medical Practitioners Act 2007 requires the Medical Council to publish in the prescribed manner details of all inspections carried out as part of the accreditation. I doubt if this requires mandatory publication of all information surrounding the inspection process and, in any event, it is not necessarily the case that such a requirement would cover all of the records at issue in this case.
Finally, the applicant referred to statements made by Medical Council officials at an Oireachtas Committee meeting in April 2014 "(attended by RCSI)" regarding the high degree of transparency that is required by the WFME Guidance, including that "[e]verything the Medical Council will consider in respect of this task will be available for public scrutiny ....". My Office asked the Medical Council to comment on its statements, and on further statements made at the same meeting about how the "rigorous and independent process over which [the Medical Council stands] ... will be available for public scrutiny when it is complete."
The Medical Council's reply, which also referred to section 88(2)(h) of the Medical Practitioners Act 2007, said that the comments were not intended to be interpreted as broadly as the applicant has done. It said that the point being made was that the Medical Council's policies, standards, processes and reports of accreditation visits are available for scrutiny, not each individual record. It said that the comments "could not legally have meant making publicly available any and all material, and particularly material that was the subject of obligations to, and rights of third parties ...". I consider the Medical Council's explanation to be reasonable. I do not accept that the statements concerned amounted to an undertaking that all material considered by the Medical Council in the MUB accreditation process would be made publicly available.
First and Third Tests
I accept that the material at issue is not in the public domain, and therefore that it has the necessary quality of confidence about it.
Release is unauthorised by the third parties to which it relates. I understand that "detriment" can arise simply where information is disclosed (which, under FOI, is equivalent to publication of the material concerned to the world at large) without the consent of the party to whom it relates. Thus, I accept that release of all of the remaining withheld records would result in detriment to the MUB in particular, and perhaps also to the RCSI.
Second Test
The remaining question for me to consider is whether the information at issue was imparted in circumstances importing an obligation of confidence.
The RCSI says that it "is important to note that accreditation is neither a mandatory requirement nor a process under the law. [The MUB] did not have to engage in this exercise but did so as it is a worthwhile one and enables the IMC to discharge its statutory function in that regard, when called upon to do so. "
I accept that the accreditation process is voluntary but, otherwise, the RCSI's argument is not clear. It seems to suggest that the accreditation process is only of benefit to the Medical Council. However, the Medical Council must be assumed to be discharging its statutory functions even in the absence of accreditation applications. Furthermore, it seems to me that an accredited college or programme gains the intangible benefit of the Irish State's (via the Medical Council) accreditation, which, I assume, positively affects its reputation and offers it advantages when competing to attract medical students, suitably qualified staff, or other resources.
I consider the accreditation process as somewhat analogous to a tender process. While the State invites tenders to be submitted, it is for tenderers to choose to do so. However, a benefit of some sort accrues to the State as well as the tenderer, in that it is either paid monies to allow a tenderer to use State assets, or receives goods or services from the tenderer in return for public monies. While it is not apparent to me what benefit accrues to the State in the accreditation process, the Oireachtas nonetheless enabled it (through the Medical Council) to carry out such a function.
Generally speaking, public bodies are obliged to treat all tenders as confidential at least until the time that a contract is awarded. Tender documents that would reveal detailed information about a company's current pricing strategy, or about otherwise unavailable product information, remain commercially sensitive and confidential even following the conclusion of a tender competition. When a contract is awarded, successful tender information loses confidentiality with respect to price and the type and quantity of the goods supplied. Other successful tender information which is commercially sensitive (for example, details of the internal organisation of a tenderer's business, analyses of the requirements of the public body, or detailed explanations as to how the tenderer proposed to meet these requirements) may remain confidential. Disclosure in the public interest ordinarily would not be required, unless it were necessary to explain the nature of the goods or services purchased by the public body.
Records 1(iii) and 1(ix) & the Second Test
I accept that records 1(iii) and 1(ix) contain information that was imparted in circumstances importing an obligation of confidence that lasts beyond the Medical Council's decision to award accreditation. They contain information concerning the MUB's internal operations, such as policies and procedures (including the record specifically sought at part 8 of the request), SWOT analysis-type information, and information concerning arrangements with third parties. Such records, even if some were created specifically in advance of the accreditation process, have ongoing application to the MUB's day to day operations. They can be distinguished from records specifically concerned with the application for accreditation. I find that all three tests, which are necessary for it to be said that information is subject to an equitable duty of confidence, have been met in respect of records 1(iii) and 1(ix).
The public interest grounds on which the Courts have found a breach of a duty of confidence to be authorised, or excused, are narrow. Neither the applicant's dissatisfaction with an FOI body's practices and procedures, nor with in this case the regime in another country, provide me with any basis to direct the release of information I consider to be subject to a duty of confidence.
Grounds recognised by the Courts include the exposure or avoidance of wrongdoing or danger to the public, and ensuring the maintenance of the principles of justice. I do not consider these to be relevant here given the content of the records described above.
Other court cases suggest that government generally (in the form of FOI bodies) cannot object to the release of their confidential information on the same basis as private individuals, and may be required to demonstrate higher standards of detriment. I do not consider this a relevant consideration in this case. For one thing, the provisions of section 35(2) seem to me to be intended to ensure that what might be properly described as "government" information cannot be withheld under section 35 of the FOI Act. In any event, the withheld information at issue is not solely "government" information. While some of the information may concern the RCSI, it largely concerns the MUB, as well as other parties.
In addition, it is possible that a duty of confidence may be breached because of issues of very significant public importance (Binchy J., in the case of O'Brien v Radió Telefis Éireann [2015] IEHC 397 refers), where there is "some meaningful connection between the issue of public importance that has been identified, and firstly, those whose rights may be breached and, secondly, the information and documentation under consideration." It is arguable that the circumstances of the Binchy judgment are entirely distinguishable from those in the case at hand. However, in any event, I do not consider the records at issue to reveal anything about how the Medical Council decided to accredit the MUB. Accordingly, I do not consider Binchy J.'s comments to provide any basis on which a breach of a duty of confidence might be supported in this case.
Accordingly, I find records 1(iii) and 1(ix) to be exempt under section 35(1)(b) of the FOI Act.
Records 1(ii), 1(v), 1(vi), 1(vii) and 7A & the Second Test
Records 1(v), 1(vi) and 1(vii) are analogous to tender documents, and record 1(ii) is closely related to them. While details in these four records must, by their nature, reflect the content of other records I have found to be subject to an equitable duty of confidence, it is relevant that they were created and provided to the Medical Council in order for the MUB to gain the intangible benefits of accreditation from the Irish State. While record 7A was created and submitted after the Medical Council granted accreditation it was presumably in the MUB's interests to respond to the latter's recommendations. I do not accept that the MUB could have reasonably expected that these records would be indefinitely protected from disclosure in such circumstances.
The RCSI maintains that the records comprise "fulsome (sic) and candid information" the voluntary provision of which reflects what the RCSI describes as "an important and wider candour and openness practice that operates in the third level sector generally, and in RCSI in particular (the "Candour Custom")." I do not accept that all details in these records comprise such a level of candour. The RCSI, although given ample opportunity to do so, has not identified any specific such details.
I find that the second of the "Coco" tests necessary for it to be said that the information in records 1(ii), 1(v), 1(vi), 1(vii) and 7A is subject to an equitable duty of confidence, has not been met in this case. I find these records not to be exempt under section 35(1)(b). I will consider them under section 36(1)(b), however.
Section 36(1)(b) was cited in the Medical Council's internal review decision, and in the RCSI's submissions. The RCSI also referred to section 36(1)(c), which is concerned with the protection of information that could, if released, prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. However, it did not identify the relevant information or negotiations, or explain how the conduct or outcome thereof could be prejudiced by release of the relevant details. I have not considered section 36(1)(c) further.
Section 36(1)(b)
I accept that section 36(1)(b) may be applied to information concerning the commercial operations of an FOI body, as well as private sector businesses. Section 36(1)(b) is a mandatory exemption that must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 361(b) is that disclosure "could reasonably be expected to result in material loss or gain". I take the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, I take the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.
The RCSI's arguments
The RCSI said that the records at issue "amount to a complete blueprint for the setting up and running of a medical school", which has been "developed by the RCSI over decades reflecting its experience, knowledge and intellectual capital, and also the expenditure of time, effort and money, all in the context of significant international competition amongst medical schools."
In this regard, it reiterated that the RCSI is "predominantly a private, rather than a public institution". It said that "approximately 10% of its income services from Irish public funds" and that the MUB "is not in any way funded directly or indirectly by Irish public funds." It said that both operate on a commercial basis and that the RCSI must be "doubly careful to maintain the confidentiality of its commercially sensitive information, given that it must compete against, amongst others, institutions that are State -funded and subsidised, and have an advantage in that regard."
In finding that section 35(1)(b) did not apply to records 1(ii), 1(v), 1(vi), 1(vii) and 7A, I observed that the RCSI had not identified specific details in these records that reflected the level of candour described in its submission. It is arguable that such details could also be particularly commercially sensitive. However, I have no basis to find section 36(1)(b) to apply to discrete elements of the records on the basis that they are particularly sensitive. That said, I can accept that, on a general level, disclosure of all of the records at issue would provide the MUB's competitors with various details that would not otherwise be available to them. Hence, if it were necessary to do so, I would be likely to find section 36(1)(b) to apply to most (although perhaps not all) of records 1(iii) and 1(ix).
However, I am concerned here only with records 1(ii), 1(v), 1(vi), 1(vii) and 7A. I accept that these are sufficiently current to have relevance today. I also must have regard to the low standard of harm in section 36(1)(b). I am reluctantly willing to accept that release of these records could provide MUB's competitors with at least some level of insight into its commercial operations than would otherwise be the case, which insight they could incorporate into improving their own operations. I thus must accept that release of records 1(ii), 1(v), 1(vi), 1(vii) and 7A "could prejudice the competitive position" of the MUB (and/or the RCSI, if appropriate) in the conduct of its business. I find these records to be exempt in full under section 36(1)(b) of the FOI Act.
Section 36(2)
Section 36(2) provides that details to which section 36(1)(b) applies may be released if (a) the party to which the information relates consent to the release of the details concerned; (b) information of the same kind as that at issue in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public; (c) the record relates only to the requester; (d) the information at issue was given to the body by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public; or (e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or the environment.
I do not consider any of these exceptions to apply in the case at hand. Neither has the applicant argued that any of them are relevant.
Section 36(3)
Section 36(3) provides for release of a record to which section 36(1)(b) applies where the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.
The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner ,[2011] 1 I.R. 729, [2011] IESC 26), has indicated that I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. " Although these comments were made in relation to the public interest test in another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The Parties' Arguments
The RCSI argued that the applicant's interest in the records is "clearly" relevant to the consideration of the public interest, in which respect it referred to section 13(4) of the FOI Act. It is, presumably, suggesting that the applicant's lack of interest in certain records, however this might be established, should add to the weight of the public interest in withholding such records.
I do not consider the RCSI's interpretation of section 13(4) to be correct. Section 13(4) requires that, whether stated or suspected, a person's motive for requesting records "shall be disregarded". This requirement is said to be "[s]ubject to this Act", which I understand enables me to have regard to a person's motive in the context of section 15(1)(g) of the Act, which is concerned with frivolous or vexatious requests. In any event, the Supreme Court has said that a person's private reasons for seeking records cannot be taken into account in considering the weight of the public interest in release of those records. It is difficult to see how the same private reasons could be relevant when considering the weight of public interest in withholding them.
The applicant's application to this Office argued that "in circumstances where this documentation concerns the approval by the Medical Council of an educational facility which awards Irish medical degrees in a country whose healthcare system, as is well documented, is associated with extreme human rights abuses, the public interest would be better served by granting the request in question." He also provided details, which he maintained are relevant to consideration of the public interest, concerning what he said were "human rights abuses which are of relevance to the Council's accreditation of [the MUB] as well as some of the legal consequences - both domestic and international - which flow from them." However, I do not consider these to be "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "
In light of the above, I do not consider the arguments made by the RCSI or the applicant to be relevant to my consideration of the public interest.
The Medical Council simply says that it is "of the view that releasing information of this nature which ... is commercially sensitive is not in the public interest." It did not elaborate on how it arrived at its view.
The Weight of the Competing Public Interests
The question is whether the weight of the public interest served by granting the request, and directing the release of information that I have found to be exempt under section 36(1)(b), sufficiently outweighs the public interest in protecting that information to warrant such a direction.
The FOI Act itself recognises a public interest in ensuring the openness and accountability of FOI bodies. I believe that in a case such as this, I must be concerned with the extent to which directing release of material in the public interest would help ensure the openness and accountability of the FOI body to which the request was made. Thus, I consider there to be a significant public interest in ensuring openness and accountability in respect of how the Medical Council performed its accreditation functions in this case.
This public interest has been served to a certain extent by the material released to date, and by the public availability of the Medical Council's report on the 2014 accreditation visit. It would be further served by release of records 1(ii), 1(v), 1(vi), and 1(vii). These, as already noted, were prepared specifically for the accreditation process. Their release would disclose how the MUB considered itself to meet the requirements necessary for it to gain the intangible State benefit of accreditation. Record 7A would disclose the MUB's response to the recommendations made by the Medical Council when granting accreditation under the Medical Practitioners Act 2007. Release of the records would, therefore, add to the general understanding of the nature of the material that the Medical Council took into account when it decided on the MUB's accreditation.
The weight of the public interest in release has to be balanced against that of the public interest, recognised by section 36(3) of the Act, in protecting the release of information to which section 36(1)(b) applies. In the normal course, section 36(1)(b) is applied to information about private sector businesses. My general approach in such cases is that the FOI Act was designed to increase openness and transparency about how FOI bodies conduct their operations, rather than a means by which the operations of private enterprises were to be opened up to scrutiny. The records at issue largely concern the MUB and to a lesser extent the RCSI. While the RCSI is an FOI body, both it and the MUB operate in a commercial sphere.
I have carefully weighed the competing public interest factors in favour of and against release of these records. In the circumstances of this case I find that, on balance, the public interest in directing that access be granted to records 1(ii), 1(v), 1(vi), 1(vii) and 7A outweighs the public interest that access to them should not be granted.
I should make it clear that I would have arrived at this finding even if I had considered section 35(1)(a) to apply to the records concerned.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Medical Council's decision.
I affirm its refusal of access to certain information relevant to part 7 of the request under section 31(1)(a). I annul its application of section 31(1)(a) to the rest of that information, as set out below, which I direct be released:
I annul its application of section 29 to page 857 (relevant to part 7 of the request) and direct the release of that page, subject to the redaction of a name which I find to be exempt under section 37(1).
I affirm the Medical Council's refusal of records 1(iii) and 1(ix), although under section 35(1)(b) rather than section 35(1)(a). I annul any application of section 35(1)(b) to records 1(ii), 1(v), 1(vi), 1(vii) and 7A. While I find records 1(ii), 1(v), 1(vi), 1(vii) and 7A to be exempt under section 36(1)(b), I direct their release, in the public interest.
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Medical Council to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Peter Tyndall
Information Commissioner