Disclosure ordered in dentist complaint FOI case

(CNS): Documents detailing complaints made against a dentist by three former employees should be released, the acting information commissioner has found in his latest decision over a disputed freedom of information request. The Department of Health Regulatory Services had withheld information following the dentist’s request about the complaints made against him on the basis that they contained personal information about the complainants.

But Jan Liebaers found that while their addresses and dates of birth should not be disclosed, it was not fair to the dentist to keep a lid on the complaint details or who made them.

Liebaers said in his decision that the records were not, as claimed by the public authority, exempt except for the contact information and dates of birth the complainants. He also pointed out that all three signed waivers at the time of filing the complaints against their boss and it was not until the FOI request was made that two of them asked for their identities and complaints not to be disclosed to him.

“In the circumstances of this case it was particularly significant that, at the time the complaints were made, each complainant had signed a waiver consenting to the disclosure of the complaint,” the information commissioner said. “It is important that public authorities grant persons against whom a complaint is made a fair chance at defending themselves and this generally includes knowing the full content and context of the complaint.”

In his ruling Liebaers said that when they made their complaints, none of the three people could have expected the information they gave to be kept from the medical practitioner and “explicitly consented” to disclosure.

Two of the complainants subsequently told the health regulator they objected to their names and complaints being exposed to him as they feared repercussions as a result of the complaints. Liebaers said there was, however, a suggestion of procedural irregularities and wrongdoing in the way the public authority handled the investigation and decision-making process because without the details of who was complaining the applicant could not fully understand the context of the complaints made against him.

“For the sake of proportionality this would require the disclosure of the complaints as well as the names of the complainants,” he said. “Public authorities must ensure that their investigations are conducted, and decisions are made in full respect of the fundamental rights of individuals — including section 19 of the Cayman Islands Constitution which requires lawful administrative action by public authorities.”

As a result of the complaints the dentist lost his licence to practice, though it has since been reinstated. While the complainants claimed to be vulnerable to fallout from the complaints, the dentist also claimed he was the genuine “vulnerable party in the conflict”, with what he described as “disgruntled employees”, whom he claimed were the “instigators and aggressors”, making unfounded allegations that threatened his livelihood.

Ordering the release of the requested documents with the relevant redactions to the applicant, Liebaers indicated that in this case the normal “world at large” disclosure would not apply because the information was predominantly personal to the dentist.

See the full decision here www.infocomm.ky/appeals.