Whether the Council was justified in refusing a request for information relating to Irish medical graduates erased from the medical register under sections 15(1)(a) and 15(1)(d) of the FOI Act, and on the basis that parts of the request were not valid under section 12(1) of the Act

19 August 2020

Background

In an email dated 6 September 2019, the applicant submitted a 13-part request to the Council for various records and information relating to Irish medical graduates who had been erased from the medical register. The request can be broken down as follows:

• Part 1 of the request was for the number of Irish medical graduates erased from the UK medical register following the UK General Medical Council (GMC) fitness to practice hearings in the past 20 years.
• Parts 2, 3, 4, 7 and 8 of the request were for the number of Irish medical graduates erased from the Irish register or otherwise denied the right to practice by the Council in various circumstances over the last 20 years.
• Parts 5, 6, 9, 11a and 12 were for various policies and memoranda of understanding underlining the Council’s procedures for fitness to practice inquiries and the sharing of information with other medical regulatory authorities, including the GMC.
• Part 10 asked for the legal ability of the Council to retain and hold information on medical graduates whose registration is not active, in compliance with GDPR.
• Part 11b was for all communication and correspondence from other medical regulatory authorities in view of fitness to practice.
• Part 13 of the request asked whether the Council applies the Charter of Fundamental Rights of the European Union, particularly the section in the Charter dealing with double jeopardy, and the Treaty of Lisbon, in its decisions.

On 4 October 2019, the Council issued a decision in which it dealt with each part of the applicant’s request individually. It refused parts 1, 5 and 8 under section 15(1)(a) of the FOI Act. It also refused both aspects of part 11 of the request under that section, and provided a link to the Medical Practitioners Act 2007 (the 2007 Act), under which it handles complaints. The Council refused parts 2, 3, 4 and 7 of the request under section 15(1)(c) of the Act, stating that it does not collate the information sought. In response to parts 6, 9 and 12 of the request, the Council provided links to relevant documents showing various policies or procedures. It refused those parts under section 15(1)(d), on the basis that the records are available for public inspection at the links provided. The Council stated that it did not consider parts 10 and 13 of the request valid, as they did not constitute requests for records.

The applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 4 November 2019, the applicant sought a review by this Office of the Council’s decision.

During the course of the review, Ms Whelan of this Office wrote to the Council and advised it of her view that section 15(1)(a) of the FOI Act was relevant to parts 2, 3, 4 and 7 of the request. She invited submissions from the Council on the steps necessary to collate the information sought and searches undertaken for relevant records in relation to the request as a whole. Ms Whelan outlined the details of the Council’s submissions to the applicant and invited him to make further submissions. The applicant made further comments.

I have now decided to bring this case to a close by way of a formal, binding decision. In conducting the review, I have had regard to correspondence between the applicant and the Council as outlined above and to communications between this Office and both the applicant and the Council on the matter.

Scope of Review

This review is concerned solely with whether the Council was justified in refusing the applicant’s request for information relating to relating to Irish medical graduates erased from the medical register on various grounds, including that parts of the requests were not valid, that no relevant records exist, and that the information sought is publicly available.

Analysis and Findings

Invalid requests

It is important to note at the outset that while the purpose of the FOI 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 or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

It is also important to note that under section 12(1), a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. As such, if a requester wishes to obtain information from a public body, s/he should seek access to records that hold such information and should include sufficient details in the request to allow the public body to identify the records sought.

At part 5 of his request, the applicant asked on what legal basis fitness to practice hearings held by the Council can apply a different standard of proof than hearings by the GMC. The Council refused this part of the request on the basis that it does not hold a record outlining the standard of proof it uses in fitness to practice hearings. It informed the applicant that it uses the criminal standard of proof in its hearings.

While at part 5 the applicant asked for the relevant policy document, it is clear to me that he was essentially seeking answers to specific questions concerning the legal basis for certain functions of the Council. I do not, therefore, consider that part 5 of the request constitutes a valid request for records.

At part 10 of the request, the applicant essentially questioned the Council’s legal authority to retain and hold information on medical graduates whose registration is not active, having regard to the provisions of the General Data Protection Regulation. At part 13, he questioned whether the Council applies the Charter of Fundamental Rights of the European Union, particularly the section in the Charter dealing with double jeopardy, and the Treaty of Lisbon, in its decisions.

While the Council decided that parts 10 and 13 were not valid requests for access to records, it informed the applicant that it is compliant with the Data Protection Act 2018 and is governed by the 2007 Act when processing personal information. I relation to part 13, it offered to assist the applicant if he wished to seek access to a particular record. Having carefully considered these parts of the applicant’s request, it seems to me that they do not constitute a valid request for access to records in accordance with section 12(1). Rather, they sought to establish whether the Council was acting in compliance with certain standards and statutory obligations. I find that the Council was justified in refusing parts 10 and 13 on the ground that they were not valid request for records.

Section 15(1)(d)

The Council refused parts 6, 9, and 12 of the applicant’s request under section 15(1)(d) of the FOI Act. In my view, section 15(1)(d) is also of relevance to part 11a. That section provides that FOI bodies may refuse access to information where the information is already in the public domain.

The relevant parts of the applicant’s request sought:

• the memorandum of agreement between the Council and the GMC that gives each body jurisdiction in the other’s jurisdiction to deny the right to work (part 6);
• the Council’s policy in relation to the exchange of information with the GMC and other regulators (part 9);
• the Council’s policy for handling complaints from other medical regulators (part 11a) and;
• the policy showing that the Council’s standards of fitness to practice comply with ECHR and ECJ case law (part 12).

In relation to part 6, the Council explained that it operates under the 2007 Act and uses the European Parliament’s directive 2005/36/EC for the recognition of professional qualifications. It provided a link to that Directive. In relation to part 9, it provided a link to its Memorandum of Understanding with the GMC that is available on its website.

In relation to part 11a, the Council said it operates under the 2007 Act and that all complaints received are handled in accordance with the Act. It provided a link to the 2007 Act. Finally, in relation to part 12, the Council provided a link to its Fitness to Practice Procedures document that is available on its website.

The applicant has not suggested that the links provided do not contain the relevant information sought. Accordingly, I find that the Council was justified in refusing parts 6, 9, 11a and 12 of the applicant’s request under section 15(1)(d) of the FOI Act on the ground that the information sought is in the public domain.

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous 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 that 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. That section provides that where the request relates to data contained in a number of electronically held records, the FOI body must take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the body. However, 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.

In its submissions to this Office, the Council explained why it decided that no relevant records exist. Ms Whelan of this Office has already provided the applicant with those details. The following is a summary of that explanation:

Part 1

Part 1 of the request was for the number of Irish medical graduates erased from the UK medical register following GMC fitness to practice hearings in the past 20 years. In its original decision the Council refused that part of the request on the basis that it does not have access to the records of the GMC. While it stated in its internal review decision that it does not maintain a register of doctors who have been erased from the UK register, it also said that it may keep a record of a doctor’s erasure from the UK register if it was of relevance to the Council.

The Council further explained that all EU Medical Competent Authorities (including the Council and the GMC) share relevant information with each other via the Internal Market Information System (IMI). It explained that the IMI has an alert mechanism that allows each country to notify other EU member states when a doctor is erased from the register or has conditions attached to their registration.

The Council stated that to gather information about the UK register, it would have to request the information through the IMI, which would forward that request to the GMC. It explained that the IMI would provide a description of the circumstances of erasures where that information was requested. The Council further stated that the IMI was established in 2008 and, as a result, would not hold information for the 20 year span for which the applicant was seeking information.

Having regard to the Council’s explanation, I am satisfied that it does not hold a record containing the number of Irish medical graduates erased from the UK medical register following GMC fitness to practice hearings in the past 20 years.

I find, therefore, that the Council was justified in refusing part 1 of the applicant’s request under section 15(1)(a) on the ground that no relevant records containing the information sought exist.

Parts 2, 3, 4, 7 and 8

In essence, the position of the Council is that it holds information relating to the number of Irish medical graduates erased from the register in the last 20 years over a number of electronic systems and databases and hardcopy files. The Council explained that it collects and holds information including doctors’ names and registration numbers, certificates of entry, addresses and qualifications. It further explained that the types of data held in complaint files differ on a case by case basis but may include medical records, expert reports and complaint forms. It stated that it may or may not keep a history of a doctor’s registration with the GMC. It explained that information is submitted to the Council in hardcopy registration forms and complaint forms and then entered into its electronic systems.

The Council explained that it holds registration information on the New Information Computer System (NICS) and professional standards information on the Evolve system. It also stated that it holds files in a General Drive electronically. The Council outlined that it does not monitor the individual circumstances resulting in the removal of Irish medical graduates from the register. It publishes the overall number of doctors erased from the register on its website annually. It stated that it does not create new reports from its electronic systems and the information it holds across the three systems cannot be compiled into the format sought by the applicant.

In response to information provided regarding part 1 of the request, the applicant stated that all recommendations for erasure from the Irish medical register must be approved by the High Court. He clarified that his question related to all cases before the High Court where an Irish medical graduate was erased as a result of a finding by the GMC. He stated that he knew of 530 total cases of erasure in the past 20 years and he wanted to know the percentage of these which were erased as a result of information provided by the GMC. 

Having considered the submission of the Council, I am satisfied that the applicant's request was for specific information which is not contained in any record held by the Council and that to collate the information sought would require the creation of a new record which the Council is not required to do. I am also satisfied that the Council cannot simply extract electronically held information in order to grant the request by the taking of reasonable steps.

I find, therefore, that the Council was justified in refusing parts 2, 3, 4, 7 and 8 of the applicant’s request under section 15(1)(a) on the ground that no relevant records containing the information sought exist.

Part 11b

The applicant at part 11b, sought all communication and correspondence from other medical regulatory authorities relating to fitness to practice. The Council refused part 11 of the request under section 15(1)(a) in its original decision. Although it refused the first aspect of part 11 under section 15(1)(d) at internal review, it did not deal with 11b in its internal review decision.

In its submission to this Office, the Council stated that it could hold a broad range of correspondence coming within this part of the applicant’s request. It again stated that it shares information with regulators in other EU member states on the IMI.

It seems to me that the relevant part of the request could, potentially, cover a wide range of records. As such, the question arises as to whether the Council would be entitled to refuse the request under section 15(1)(c) arises. That section provides for the refusal of a request where granting the request would, by reason of the number or nature of the records concerned require the retrieval and examination of such number of records as to cause a substantial and unreasonable interference with the work of the body. However, a body is not entitled to rely on that section to refuse a request unless it has first offered assistance to the request to amend the request (section 15(4) refers).

The Council did not argue that section 15(1)(c) applies in this case. Instead, it seems to me that it simply did not process this part of the applicant’s request. There is no evidence before me to suggest that the Council undertook searches for relevant records or sought to clarify the scope of the relevant part of the request with the applicant. In the circumstances of this case, I cannot find that that the Council was justified in refusing part 11b under section 15(1)(a).

I consider, therefore, that the appropriate course of action to take is to annul the Council's decision in respect of part 11b of the applicant’s request, the effect of which is that the Council must consider that part of the applicant's request afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council's decision.

I should add that under section 12(1), a request for records must contain sufficient particulars in relation to the information concerned to enable the record or records sought to be identified by the taking of reasonable steps. As such, it seems to me that it would be in the interests of both parties for the Council to seek to clarify with the applicant what precise records he wishes to access under part 11b.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I annul the decision of the Council to refuse, under section 15(1)(a), part 11b of the applicant’s request, on the ground that no relevant records exist. I direct the Council to conduct a fresh decision-making process in respect of that part of the applicant’s request. I affirm the Council’s decision in respect of the remainder of the request.

Right of Appeal

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