A doctor has lost an appeal against a finding that the GMC was entitled to refuse a FOI request seeking justification for failing to investigate a complaint.
In the case of Dr Sarah Myhill v. (1) Information Commissioner’s Office (2) General Medical Council, Dr Myhill appealled against a decision notice issued by the ICO on 17 December 2019. That decision notice had held that the GMC had correctly applied s.40(5B)(a)(i) of the Freedom of Information Act 2000 (“FOIA”) in declining to confirm or deny whether it held information constituting an “evidence base” for the GMC’s decision not to investigate a fitness to practice complaint made by Dr Myhill in respect of certain registered medical practitioners on 14 January 2018.
Dr Myhill made the following request for information:
If an evidence base [i.e. ‘facts’ and ‘information’] for the GMC refusal to investigate exists then please show this to me.
If there is no such evidence base, then please state such.
The GMC did not initially deal with the Request under the Freedom 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 Information Commissioner that 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. The GMC issued a response to the appellant under FOIA on 24 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.
The appellant complained to the Commissioner that 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.
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 legitimate interests and considered it had wider societal implications. The Commissioner was not aware of any less intrusive means by which the legitimate interests identified could be met.
However, there was insufficient legitimate interest to outweigh the data subjects’ interests or fundamental rights and freedoms, and so confirming or denying whether the information was held would not be lawful. The GMC has a clear policy of not disclosing 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 expectation that 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.
On 7 April 2021 the First-tier Tribunal promulgated its decision, by a majority dismissing Dr Myhill’s appeal against a decision notice issued by the ICO on 17 December 2019. That decision notice had held that the GMC had correctly applied s.40(5B)(a)(i) of the Freedom of Information Act 2000 (“FOIA”) in declining to confirm or deny whether it held information constituting an “evidence base” for the GMC’s decision not to investigate a fitness to practice complaint made by Dr Myhill in respect of certain registered medical practitioners on 14 January 2018.
The Upper Tribunal, considering the appeal, found that:
The Tribunal made its findings of fact and gave adequate reasons for reaching the conclusion which it did. I can see no error of law in the way in which it went about its task or in the decision which it reached or in the adequacy of the reasons which the majority gave for that decision. The function of the First-tier Tribunal is to assess whether the Information Commissioner’s decision notice “against which the appeal is brought is not in accordance with the law” (s.58 of FOIA). That the First-tier Tribunal has done. I can detect no error of law in its decision.
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