Cinneadh
Mr O and the Medical Council (the Council)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 120173
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 120173
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing to provide the applicant with a statement of reasons, concerning the Council's handling of a complaint made by the applicant regarding a named doctor (Dr Y), as sought by him under section 18 of the FOI Act
16 April 2014
On 23 April 2012, the applicant sought a statement of reasons, under section 18 of the FOI Act, for the following:
1. The Council's decision to dismiss his complaint about Dr Y; and
2. Why the Council had claimed that it was the applicant who had said that Dr Y's "false claims" (i.e. that the applicant "was offered immediate treatment for his plain. He declined this.") were in Dr Y's letter to the applicant's GP, when, according to the applicant, he had stated that the opposite was in Dr Y's letter.
He also sought "production of the evidence" on which his complaint was dismissed.
The Council told him, in an email dated 27 April 2012, that the details sought at 1. and 2. "could not be considered under FOI as the matters relate to a review of your complaint under the PPC [Preliminary Proceedings Committee] process" and would be dealt with by the Professional Standards Section, outside of FOI. It also referred the applicant to previous letters from the Council "in which all correspondence pertaining to [the applicant's] complaint was released to [him] in accordance with the Freedom of Information Acts 1997 and 2003" and provided him with a further copy of certain of those released records.
On 22 May 2012, the applicant sought an internal review of the Council's refusal to deal with his section 18 application (in which he said he "accept[ed the Council's] certification that [it has] released all records to [him]"). On 19 June 2012, the Council wrote to the applicant telling him that his complaints had been dealt with in accordance with the Medical Practitioners Act 2007 and natural justice; that his FOI request had been "correctly considered"; and that an adequate response had been provided to him in relation to all his requests for clarification. It told him that, thus, no response would be forthcoming to any further correspondence concerning his complaint about Dr Y or his "prior FOI request".
On 6 July 2012, the applicant sought a review by this Office of the Council's refusal of his section 18 application.
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 27 February 2014, and the applicant's reply of 11 March 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 decision on the applicant's section 18 application.
Section 18(1) of the FOI Act provides that a person is entitled to a statement of reasons for an act of a public body where that person is affected by that act and has a material interest in a matter affected by the act, or to which it relates. Section 18(1)(a) requires a statement to specify the reasons for the act for which the statement has been sought, whilst section 18(1)(b) requires it to set out any findings on any material issues of fact made for the purposes of the act concerned.
In considering whether a person is entitled to a statement of reasons for an act of a public body, a key factor is whether the act has the consequence or effect of conferring on the person a benefit (or withholding a benefit from them). I accept that the Council's decision not to proceed with the applicant's complaint (to which I will refer in the remainder of this decision as "the substantive decision") is an act that had the consequence of withholding from the applicant a benefit (namely the further examination of his complaint).
My decision in case 120172 has already found that the applicant is entitled to a statement of reasons for that substantive decision (as sought by him at part 8 of his separate section 18 application dated 9 March 2012). Section 34(9)(a)(iii) provides that a review may be discontinued if the matter to which the application relates is, has been or will be, the subject of another review under section 34 of the FOI Act. I therefore discontinue this review, in accordance with section 34(9)(a)(iii), in so far as it concerns part 1. of the section 18 application of 23 April 2012. However, it should be noted that when an application is made under the FOI Act, it must be dealt with in accordance with the provisions of the Act i.e. the body is required to give a decision on a request in the first place, and to give an internal review decision where a refusal of an original request has been appealed.
I do not accept that the applicant is entitled to a statement of reasons for the action set out at part 2. above, however. This Office has previously explained that section 18 does not apply to every action of a public body and that the Oireachtas could not have intended that public bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the public body and its officials. Taking section 18 as a whole, this Office considers that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 18 does not apply to that act.
In his email of 11 March 2014 to this Office, the applicant has identified what he considers to be benefits withheld from him as a result of various "acts" carried out by the Council, including that set out at 2. above. However, it seems to me that, in essence, the applicant is attempting to use section 18 to challenge the procedure adopted by the Council in arriving at its decision that no further action would be taken on his complaint. As I have already explained, the benefit withheld in this case stemmed from that decision, for which the applicant is entitled to a statement of reasons. Section 18 does not, in my view, require the Council to provide a statement of reasons for each and every part of the process it followed in arriving at that decision.
Furthermore, I do not accept that section 18 requires a public body to provide a statement of reasons for not taking alternative courses of action in respect of a particular act, nor has this Office a role in examining the administrative processes of public bodies. If the applicant considers that the Council did not adhere to fair procedure in arriving at its decision, as he claims in his email of 11 March 2014, it is not a matter for this Office to examine that claim, nor does section 18 require a public body to justify any particular act. For the purposes of section 18, it is sufficient for the Council to adequately explain why it decided that no further action would be taken on the applicant's complaint (albeit, as set out above, I have discontinued the relevant element of the review, in accordance with section 34(9)(a)(iii)). Accordingly, I find that the Council is not required to provide a statement of reasons for the matter set out at part 2 of the applicant's section 18 application.
Having carried out a review under section 34(2) of the FOI Act, I hereby discontinue this review, in so far as it concerns part 1. of the section 18 application, under section 34(9)(a)(iii) of the FOI Act. I affirm the Council's refusal to provide the applicant with a statement of reasons in respect of part 2. of the application.
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.
Stephen Rafferty
Senior Investigator