Mr Y and the Medical Council

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 07 December 2016
• Case Outcome: The Information Commissioner varied the Medical Council's decision. He affirmed the application of section 31(1)(a) to some information withheld on the basis of legal professional privilege and directed the release of certain parts found not to qualify for the exemption. He annulled the withholding of one record under section 29 and directed its release subject to the redaction of a name, which he found to be personal information. He affirmed the refusal of access to most of the remaining records under section 35(1)(b) on the basis that a duty of confidence applied. He found section 36(1)(b) to apply to those records he had not found to be exempt under section 35(1)(b) but directed their release in the public interest
• Court: Information Commission
• Record Number: 150161
• Respondent: Medical Council

Case Number: 150161

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

Background

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.

Scope of the Review

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:

Page 778-779: the end of the first sentence under the heading numbered "3.", from the fourth paragraph, inclusive, under the heading numbered "3" to the end of that section; and the fourth paragraph under the heading numbered "4".;
Page 786-787: bullet points numbered "2", "3", and "4" on page 786 and the final paragraph on page 787;
Page 789: final heading and associated sentence;
Page 791: final two sentences of second paragraph and second and third sentences of third paragraph;
Page 801 - the entirety of point 4.6; and
Pages 864-865: although a copy of pages 778-779, the Medical Council withheld all of the first sentence under the heading numbered "3.", rather than just the end of the sentence. While this was drawn to the Medical Council's attention, it did not confirm whether it intended to release the additional details from the pages concerned. It withheld the same details from the remainder of this record as it did from pages 778-779.

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....