“1 – If an evidence base [i.e. ‘facts’ and ‘information’] for the GMC refusal to investigate exists then please show this to me. 2 – If there is no such evidence base, then please state such.” 4. The GMC did not initially deal with the Request under theFreedom of Information Act 2000 (“FOIA”). Instead, they dealt with it as part of correspondence about the appellant’s ongoing concerns. The appellant complained about this to the Commissioner. Decision NoticeFS50831407 from the Commissioner (the “September Decision Notice”) found that this should have been dealt with by the GMC as a FOIA request and required the GMC to provide a response to the appellant under FOIA. 5. The GMC issued a response to the appellant under FOIA on24 October 2019 . It refused to confirm or deny whether it held the requested information as it was third party personal data, under sections 40(5A) and 40(5B)(a)(i) FOIA. 6. The appellant complained to the Commissioner on25 October 2019 . The Commissioner dealt with the matter without requiring an internal review due to the previous delays and likelihood the internal review would make no material difference to the GMC’s decision. Sheissued her Decision Notice on17 December 2019 and decided that the GMC was entitled to refuse to confirm or deny whether the requested information was held in accordance with section 40(5B)(a)(i) FOIA. The Commissioner found that: a. The requested information if held would relate to a complaint to the GMC about third parties. Confirming or denying that the information was held would disclose whether the GMC had received a complaint about these third parties. This would disclose third party personal data. b. Applying the processing condition in Article 6(1)(f) GDPR, the Commissioner found that there is a legitimate interest in confirmation or denial given the general duty of openness and transparency. She also noted that the appellant had her own legitimateinterests and considered it had wider societal implications. The Commissioner was not aware of any less intrusive means by which the legitimate interests identified couldbe met. c. However, there was insufficient legitimate interest to outweigh the data subjects’ interests or fundamental rights and freedoms, and so confirming or denying whetherthe information was held would not be lawful. The GMC has a clear policy of notdisclosing the existence or details of complaints if they do not cross the threshold of investigation, meaning that the data subjects have a reasonable and fair expectationthat this type of information will remain private and confidential. Confirmation or denial that the requested information is held would cause distress and upset and constitute an unwarranted intrusion into their rights of privacy.”
“42. Malcolm Clarke's minority view is as follows. I completely concur with the conclusions of my colleagues on the procedural issues (Paras 21 to 25) and on the first three tests of the substantive issues (paras 26 to 35). However, on balance (and I agree with the view in paragraph 39 that it is a balanced judgement) I reach a different conclusion on the final limb (Paras 36 to 41) for the following reasons. 43. The previous cases cited (on two of which I sat), involving requests to the GMC for information relating to complaints against doctors, involve complaints, if they exist, about treatment or advice provided by those doctors to individual named patients. This case is different in that it relates to complaints to the GMC, if they exist, about a published clinical research trial which informed national NICE guidelines. 44. Evidence given to us showed that the conduct and validity, and therefore the findings, of this trial became the subject of extensive dispute in professional journals and gave rise to two debates in Parliament, in at least one of which one of the doctors was named. Dr Myhill gave evidence, which was not contested by the GMC, that as a result of these debates, the NICEguidelines were altered. 45. We have neither the jurisdiction nor the expertise to reach any conclusions on the clinical issues. However, I conclude that Dr Myhill's legitimate interest in seeking this information, if it exists, as a practising doctor with patients, who has a deep professional interest in ensuring that national recommended treatments in this area of medicine are evidence-based, is a verystrong one. 46. I agree (i) that confirmation or denial that the information is held would reveal personal information about the doctors involved and (ii) that the stance of the GMC to neither confirm nor deny whether information is held is entirely correct in the more usual type of case where a complaint, if it exists, against a doctor about individual treatment is not taken to the next stage.However, in this case, I think: a. Dr. Myhill’s legitimate interest in knowing whether the evidence she requests is held by the GMC, is a very strong one in the context of the wider professional, parliamentary,and public interest in the history of treatment guidance in this area of medicine. b. Those professional and political debates will, or should have, altered the doctors' reasonable expectations of privacy. 47. I therefore conclude that, in this case, the processing of personal data caused by confirmation or denial that the requested information exists would be lawful, fair and transparent,and that, applying Article 6(1)(f) of GDPR, Dr Myhill's legitimate interests are not overridden by the rights and freedoms of the data subjects. 48. For the avoidance of doubt, I make no assumptions about whether information within the scope of the request is held by the GMC or, if it is, whether any exemptions are engaged.”
“… it is not the function of the Tribunal to form, still less to express opinions on medical issues. We are therefore not assisted by arguments as to the alleged failures or misconduct of the doctors concerned, whether directly or as expert adviser.”
“24. The appellant’s personal interest in the information is based on potential legal claims. We find that confirmation or denial by the GMC as to whether there were complaints under investigation against the named doctor under FOIA is not reasonably necessary for pursuing this interest, and there are other means of achieving this which are less intrusive. 25. The existence of complaints against the doctor at the time of the appellant’s relative’s treatment might be relevant to legal claims, in that it would show that others had complained about the doctor’s practice. Similarly, the existence of complaints at the time of the Request would indicate concerns from others about the doctor. However, the fact of a complaint investigation by the GMC does not indicate that the complaint has any merit. This information is not necessary for the appellant to decide whether to bring a claim, because confirmation as to whether or not other complaints have been investigated is not evidence that the doctor was negligent in the treatment of the appellant’s relative. If a claim is made, disclosure of information about complaints and GMC investigations may be required if it is relevant to the case – including more detail than a simple confirmation or denial. This would help the appellant’s interests in bringing the claim, but would be done under the usual duties of disclosure with restrictions on how the information may be used. This is a less intrusive and more effective way of furthering the appellant’s interests in the information than disclosure to the world at large under FOIA. 26. The public interest is based on knowing whether a treating doctor is the subject of serious complaints and so fit to be treating them. We find that confirmation or denial by the GMC as to whether there were complaints under investigation against the named doctor under FOIA is not reasonably necessary for pursuing this interest. The existence of a complaint which is under investigation by the GMC provides no information about the doctor’s actual fitness to practise. The GMC receives many complaints, and only a minority proceed to a finding that the doctor is not fit to practise. The GMC publishes decisions by the relevant Tribunals and Investigation Committees, and undertakings agreed with individual doctors. Tribunal hearings are also public. These steps provide the public with information about enforcement actions and sanctions that have actually taken place. This furthers the public interest in knowing whether the GMC has found a problem with a doctor’s fitness to practise, or has sufficient concerns for the matter to progress to a public Tribunal hearing. This is a more accurate way of providing such information to the public than disclosure of the existence of investigations into complaints which have not resulted in action by the GMC. 27. The appellant makes the point that he considers the GMC investigative process is unsatisfactory because the majority of complaints are never formally investigated, and the chances of obtaining information about a doctor based on the GMC’s publication process is extremely remote. We do not agree that this makes it reasonably necessary for personal data about a named doctor to be disclosed under FOIA. If there has been poor performance in an investigation by the GMC, this can be challenged by way of a review under the relevant rule, or through judicial review. As already noted, the existence of a complaint against a doctor does not indicate that the complaint has any merit or that there is any impairment of the doctor’s fitness to practise under the GMC regime. 28. The appellant submits in his response to the GMC that this approach is inherently unfair to the public. He says that confirmation would tell the public that a doctor who was the subject of a current complaint had been permitted to continue to practise by the hospital, and this is relevant to both the hospital’s and the doctor’s negligence. We accept that there would be a public interest in knowing that a doctor who is not fit to practise has been allowed to continue working without appropriate safeguards. But, confirmation or denial of the existence of a complaint investigation does not provide this information. As already noted, the existence of a complaint does not mean there is any actual problem with a doctor’s practise, and so publication of details about complaints would be misleading. The GMC is concerned only with whether there is an ongoing problem with a doctor’s fitness to practise. If so, details of enforcement actions and sanctions are published and so made available to the public. 29. The appellant also submits that publication would enhance the performance of doctors overall, if they knew more information would be available. We do not agree with this. Publication of information about complaints which have not been substantiated would be unfair to the doctor, and in our view, would be more likely to inhibit a doctor’s practice than enhance performance. 30. The appellant also complains that the GMC decides itself what to disclose, and further information could be disclosed while keeping confidentiality over the detail of a specific complaint – e.g. numbers of complaints and findings. This challenge to the GMC’s practice is outside our remit. We are limited to considering whether the GMC should have answered the appellant’s specific Request.”
“… it is my view that the Commissioner reached the correct view that confirming or denying whether the information is held would amount to disclosing personal information about the Doctor. Public confirmation as to whether the information is held would equate to a public disclosure that the GMC had received and considered an allegation against the Doctor identified (as I have found) in the Appellant’s request, and that would entail the processing of the personal data of the Doctor. To be clear, it is not the personal data of the Assistant Registrar that is in issue, but the personal data of the Doctor.”
“I understand that conclusion will be upsetting to the Appellant, but where there are competing interests, as there are in this case, a judgement has to be made as to which will prevail. The choice in this case is that the weighty expectation of privacy of the Doctor outweighs the understandable concern of the Appellant that the GMC employs suitably qualified personnel to make decisions on complaints.”
“The September Decision Notice required the GMC to provide a response to the appellant under FOIA. This was because the GMC had failed to deal with the appellant’s correspondence as a FOIA request. Importantly, it did not require the GMC to actually provide the requested information. The GMC did then provide a response under FOIA. This response was a refusalto confirm or deny if the information was held. They relied on one of the exemptions under FOIA which relates to data protection. Therefore, the GMC did do what was required by the September Decision Notice – they provided a response to the appellant under FOIA.”
“44. Evidence given to us showed that the conduct and validity, and therefore the findings, of this trial became the subject of extensive dispute in professional journals and gave rise to two debates in Parliament, in at least one of which one of the doctors was named. Dr Myhill gave evidence, which was not contested by the GMC, that as a result of these debates, the NICEguidelines were altered.”
“The Public Interest Timing Issue 47. The time at which the public interest considerations fall legitimately to be considered on a FOIA request is in play in this appeal. This is because in its consideration of “a number of factors which go substantially to reduce the public interest in disclosure of the withheld material”, the FTT relied (in paragraph 110 of its decision) on information which had come into the public domain well after the DIT had made its decision to refuse Mr Montague’s request. … 54. On the public interest timing issue, it has been settled practice, if not law, since the Supreme Court’s decision in R(Evans) v HM Attorney General[2015] UKSC 21 ,[2015] 1 AC 1787 , that the balancing of the public interest factors in favour and against disclosure falls to be judged “as at the date of the original refusal” (para. [73]). The full context on this point is in paragraphs [72] and [73] of Evans: “72……It is common ground, in the light of the language of sections 50(1), 50(4) and 58(1), which all focus on the correctness of the original refusal by the public authority, that the Commissioner, and, on any appeal, any tribunal or court, have to assess the correctness of the public authority’s refusal to disclose as at the date of that refusal……. 73. However, although the question whether to uphold or overturn (under section 50 or sections 57 and 58) a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the individual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal…..” … 60. We do not accept the argument that the public authority’s decision refusing the request includes the upholding of that decision following the internal review of that decision by the authority. It is an argument with no clear statutory basis, arguably stands contrary to the wording used by the Supreme Court in Evans, and lacks material support from APPGER because the point was not in issue in that case. We also do not consider that Maurizi decides this point conclusively in favour of the refusal decision including the upholding of that decision on review. 61. Although the language in Evans of original refusal may be explained simply on the basis of it identifying the public authority’s refusal as opposed to any later stage of decision making on the same request, the structure of sections 50 and 58 of FOIA do not lend themselves to either the Information Commissioner or the First-tier Tribunal making decisions to refuse the request. This is a point to which Lord Neuberger refers and appears to have considered was well made in paragraph [72] of Evans, albeit it was based on a commonality of argument before the Supreme Court in that case. Seen from this perspective, the views of the Upper Tribunal in Evans, as recorded in paragraph [39] of the Supreme Court’s judgment in Evans (see paragraph 54 above), may provide a point of contrast with the language of the ‘original refusal’ decision. 62. The Information Commissioner’s function under section 50(1) of FOIA is to decide “whether…a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I [of FOIA]”
“At paragraph 52 of its decision the FTT treated the approach to disclosure under FOIA and that under the DPA as being the same. This is incorrect. The observations of Lord Rodger of Earlsferry in Common Services Agency v Scottish Information Commissioner[2008] 1 WLR 1550 at [68], which the FTT relied upon,do not support any such equivalence. In the same case at [7] Lord Hope said ofthe DPA and the EU Directive which it implemented, “the guiding principle is theprotection of …[the] right to privacy with respect to the processing of personaldata”
“…the balancing process in the application of the Goldsmith questions “is different from the balance that has to be applied under, for example, section 2(1)(b) of FOIA” (see GR-N v Information Commissioner and Nursing and Midwifery Council[2015] UKUT 449 (AAC) at paragraph 19). Furthermore FOIA stipulates that the section 40(2) exemption applies if disclosure would contravene the data protection principles enshrined in the DPA, so it is the DPA regime which must be applied. There is no obvious reason why the general transparency values underpinning FOIA should automatically create a legitimate interest in disclosure under the DPA.” “…the balancing process in the application of the Goldsmith questions “is different from the balance that has to be applied under, for example, section 2(1)(b) of FOIA” (see GR-N v Information Commissioner and Nursing and Midwifery Council[2015] UKUT 449 (AAC) at paragraph 19). Furthermore FOIA stipulates that the section 40(2) exemption applies if disclosure would contravene the data protection principles enshrined in the DPA, so it is the DPA regime which must be applied. There is no obvious reason why the general transparency values underpinning FOIA should automatically create a legitimate interest in disclosure under the DPA.”
“In other cases, and this is an example, there are clearly disadvantages in the Commissioner and then the FTT and then further appellate tribunals and courts being faced with a moving target on public interest issues. This is particularly so when one remembers that the trigger to the FOIA jurisdiction is a request to a public authority holding information. Indeed it seems to us that Parliament would not have intended that the public authority would effectively be removed as the decision maker because the passage of time and changes in circumstances even if the last date for appellate tribunals and courts was the hearing before the FTT. Rather it seems to us that Parliament would have intended that the requester should make a further request if he wished to rely on changes over time to the public interest factors.”