Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  GIA/4483/2014

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the information requester, Mr Cubells, brought with my permission, against a decision of the then President of the General Regulatory Chamber of the First-tier Tribunal made on 16 July 2014. For the reasons set out below that decision was in my judgment wrong in law and I allow the appeal and set that decision aside. In exercise of the power in section 12 of the Tribunals, Courts and Enforcement Act 2007 I re-make the First-tier Tribunal’s decision by dismissing the applications by the First and Second Respondents to strike out the Appellant’s substantive appeal to the First-tier Tribunal.

 

2. Mr Cubells’ mother died on 2 November 2007 in hospital. Mr Cubells made a complaint to the GMC against 10 doctors who had been involved in her care and treatment. In respect of 7 of those doctors the GMC decided that there was insufficient material to start an investigation; in respect of the other 3, the GMC decided to make inquiries and accordingly they instructed an expert, who has been referred to as Dr Y, to prepare a report in respect of their conduct. That report was broadly favourable to the three doctors.

 

3. On 17 October Mr Cubells made a complaint to the GMC about Dr Y. He alleged bias and bad faith.

 

4. On 6 June 2012 the GMC wrote to Mr Cubells stating that the Assistant Registrar had decided that a GMC investigation into Dr Y’s fitness to practise was not warranted. The letter went on to state that the decision was based on legal advice, a copy of which was stated to be enclosed.

 

5. The letter of 6 June 2012 referred to Dr Y’s actual name, which was of course known to Mr Cubells. There appears also to have been enclosed with the letter a copy of the Assistant Registrar’s actual Rule 4 decision, which ran to some 7 pages. That decision also referred to Dr Y by his actual name. It is the GMC’s practice not to publish the name of a doctor in respect of whom a complaint is made but where under Rule 4 the complaint is considered not to merit further investigation.

 

6. I am unclear whether the letter of 6 June 2012 did also enclose, in addition to the Rule 4 decision, some separate legal advice, but if it did the name of the legal adviser was not shown.

 

7. On 9 June 2012 Mr Cubells wrote to the GMC requesting, under the Freedom of Information Act 2000 (FOIA) and the Data Protection Act 1998 (the DPA), the names of the assistant registrar, legal personnel and GMC personnel involved in the Rule 4 decision. That letter again named Dr. Y.

 

8. On 13 August 2012 the GMC replied giving the name of the Assistant Registrar, but stating that “the names of the legal personnel have been withheld to comply with the [DPA] as the information constitutes third party information, and consent of the third party has been refused or not provided and it is reasonable in the circumstances not to disclose.”

 

9. On 14 September 2012 the GMC wrote to Mr Cubells stating that it had reviewed its position and that as regards legal personnel “there was one individual involved and this person is an external barrister. The letter further stated:

 

“You argue that you (and indeed the public) have a legitimate interest in receiving this personal data in line with DPA Schedule 2, condition 6(1) in order to scrutinise decisions and request accountability. However, it is our duty to consider the second part of this condition, which states “except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms of the data subject.” As you know, we have already given you the full legal advice on this occasion, which allows you to scrutinise the [Dr Y] Rule 4/Triage decision. I do not believe that disclosure of the external barrister’s identity adds anything to this. As such, I have reviewed the legitimate interests for the public release of the external barrister’s identity, in line with Schedule 2, Condition 6 of the DPA and I find that the right of this individual to have their identify withheld outweighs the public interest in disclosure.”

 

10. On 15 September 2012 Mr Cubells wrote to the GMC as follows:

 

“Under the provisions of the FOIA/DPA protocols can you please provide the following information thus:

 

[1] The name of the Barristers chambers for which the external barrister mentioned in [the letter of 14 September] was working from when he/she provided legal advice in regard to the unreasonable GMC [Dr Y] Rule 4/Triage decision.

 

[2] The town/city of the mentioned Barrister’s chambers at request [1] above.”

 

11. That letter also referred to Dr Y’s actual name.

 

12. On 12 October 2012, relying on FOIA s.40(5)(b)(i), the GMC refused to confirm or deny that it held the requested information, on the ground that to do so would involve informing the public of Dr. Y’s identity and that a complaint had been made against him, and would therefore involve unfair processing of his personal data. The GMC also refused under s.40(2) to provide the information requested on the ground that to do so would enable the public to identify the name of the barrister (who has been called Z in this appeal), and would therefore also involve unfair processing of Z’s personal data.

 

13. Following dismissal by the IC of his complaint against that refusal, Mr C appealed to an FTT (“the first FTT”). By a decision made on 2 December 2013 the first FTT dismissed the appeal. It made its decision solely on the ground that the GMC was entitled to refuse to confirm or deny whether it held the requested information because to do so would involve identifying Dr Y to the public as someone against whom a complaint had been made and would involve an unfair processing of his personal data, given that the complaint had been deemed not to merit further investigation. Having reached that conclusion, the first FTT did not find it necessary to consider whether the GMC would have been entitled to refuse the information request by reason of an unfair processing of Z’s personal data.

 

14. The first FTT recorded in para. 15 of its decision that “the Appellant accepted that his complaint to the GMC involved the personal data of Doctor Y and that a confirmation or denial that the GMC held the requested information as to the barrister’s chambers would result in the disclosure of such data to the public.”

 

15. However, in the meantime, on 29 April 2013 Mr Cubells had written to the GMC in the following terms:

 

“It seems to me that the issue in respect of the request in question is the possible identification of the doctor involved. In this regard I will submit a similar FOI/DPA request via this email which will not identify the doctor in question.

 

……………………………………………

 

The latest request

 

Under the provisions of FOI/DPA protocols can you please provide the below thus:

 

[1] The name of the barrister’s chambers involved in advice provided in respect of GMC Rule 4 letter sent to me dated 6 June 2012

 

[2] The town/city of which the barristers chambers mentioned in request [1] above is situated.

 

………………………………………………………………….”

 

16. By its review decision made on 28 November 2013 the GMC refused to provide the information, on the same grounds as it had refused the previous request. As regards the point that the new request did not itself identify the doctor in question, the GMC said:

 

“….your request needs to be read in conjunction with [the] earlier letter of 6 June 2012  (referred to in your request). If the request and the earlier letter are read together then they identify a particular doctor. Your request is therefore for information that would confirm or deny whether a fitness to practise complaint had been made against that particular doctor.”

 

17. On Mr Cubells’ complaint, the IC upheld the GMC’s handling of the request.

 

18. Mr Cubells again appealed to the FTT (“the second appeal”). The Respondents in their responses to the grounds of appeal requested that the second appeal be struck out under Rule 8(3)(c) of the First-tier Tribunal (General Regulatory Chamber) Rules 2009 on the ground that it had no prospect of success.

 

19. By the decision now under appeal to me the then President of the General Regulatory Chamber of the FTT, on the papers, struck out the second appeal on that ground. He held that:

 

(1) the request related to Dr Y’s personal data, in respect of which the decision of the first FTT was clearly correct; or alternatively

 

(2) the request involved the personal data of Z, and no reasonable tribunal could consider that disclosure of those data would be lawful and fair.

 

20. At the request of the GMC I held an oral hearing of this appeal, at which the Mr Cubells appeared in person and the GMC was represented by Mr Timothy Pitt-Payne QC. The IC was not represented.

 

21. In my judgment the President went wrong in law in relation to both the grounds on which he struck out the second appeal.

 

22. Section 40 of FOIA provides, so far as material, as follows:

 

“(1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.

 

(2) Any information to which a request for information relates is also exempt   information if –

 

(a) it constitutes personal data which do not fall within subsection (1), and

(b) either the first or the second condition below is satisfied.

 

(3) The first condition is –

 

(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of “data” in section 1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under this Act would contravene

 

– (i) any of the data protection principles, or

(ii) section 10 of that Act (right to prevent processing likely to cause damage or distress), and

 

(b) ……………………………….

 

(4) The second condition is ………………………………

 

(5) The duty to confirm or deny –

 

(a) does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1), and

 

(b) does not arise in relation to other information if or to the extent that either –

 

(i) the giving to a member of the public of the confirmation or the denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) contravene any of the data protection principles or section 10 of the Data Protection Act 1998 or would do so if the exemptions in section 33A(1) of that Act were disregarded, or

 

(ii) ……………………………..

 

(7) In this section

 

“the data protection principles” means the principles set out in Part I of Schedule 1 to the Data Protection Act 1998, as read subject to Part II of that Schedule and section 27(1) of that Act.”

 

23. The first data protection principle set out in Part I of Schedule 1 to the DPA is:

 

“Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless –

 

(a) at least one of the conditions in Schedule 2 is met, and

 

(b) …………………………………”

 

24. The conditions in Schedule 2 include the following:

 

“1. The data subject has given his consent to the processing.

 

6(1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”

 

25. By s.1(1) of the DPA “processing” includes “disclosure of the information or data by transmission, dissemination or otherwise making available”.

 

26. As regards the first ground on which the second appeal was struck out, the GMC’s contention was and is that to confirm or deny whether it held the information about Z’s Chambers would contravene the first data protection principle set out in Part I of Schedule 1 to the DPA.

 

27. In Mr Pitt-Payne’s Skeleton Argument he contends as follows:

 

“…………… in giving the requested confirmation or denial to a member of the public the GMC would have breached the first data protection principle. The reason is that, by confirming or denying whether it held the requested information, the GMC would have disclosed whether or not a complaint had been made against Dr Y.

 

Although Dr Y’s name did not appear on the face of the request dated 29 April 2013, that request had to be read in conjunction with the letter referred to in the request, which did identify Dr Y. Further, the request of 29 April 2013 clearly referred back to Mr Cubells’ earlier FOI request, which identified Dr Y by name. Hence the request was for information that would confirm or deny whether a fitness to practise complaint had been made against Dr Y.”

 

28. In my judgment the FTT was wrong to hold that by confirming whether it held the information about Z’s chambers (or indeed by giving that information, if held), the GMC would have been disclosing to the public that it was Dr Y who had been the subject of a Rule 4 decision on 6 June 2012. The request made on 29 April 2013 did not name Dr Y directly, as the GMC accepts, and there was no need for the answer to do so.

 

29. The GMC’s first contention is that because the request, and therefore necessarily the answer, referred to the GMC Rule 4 letter sent to Mr Cubells on 6 June 2012, and that letter did name Dr Y, the answer would have involved disclosing Dr Y’s identity to the public. I do not see how that can be so. It is quite clear that Mr Cubells’ intention was to frame his request in such a way that the answer would not involve disclosing Dr Y’s identity. He did not need to know Dr Y’s identity, as he knew it already; he was after information about Z. A member of the public becoming aware of the terms of the request and the answer would not know that Dr Y was the subject of the Rule 4 letter. In those circumstances it seems to me that it could only be correct to hold that the answer would involve disclosing Dr Y’s identity as the subject of the letter if, on becoming aware of the terms of the answer, a member of the public would have been entitled to require the GMC to supply an unredacted copy of the Rule 4 letter. Where an answer to an information request is given in terms which can only be understood if certain other information referred to in it, or in the request, is supplied, it may well be that any member of the public would be entitled to require that other information, and therefore that that other information must be regarded as having also been disclosed to the public. But Mr Pitt-Payne accepted, in my judgment rightly, that if, following an answer by the GMC to Mr Cubell’s request, a member of the public were to ask the GMC for a copy of the Rule 4 letter, the GMC would be entitled to blank out Dr Y’s name in any copy of the Rule 4 letter which it provided. In those circumstances I see no reason why the answer should be held to have disclosed to the public the fact that Dr Y was the subject of the Rule 4 letter. As I have said, the purpose of the request was not to obtain that information, and nor would it have been the purpose of the answer.

 

30. Mr Pitt-Payne submitted that the test is not: “what would a member of the public learn, or be entitled further to ask for, if he saw the answer?” but “What would the GMC be telling the public by giving the answer?” It seems to me that those two things are the same. I do not see how the GMC can be deemed to have told the public something which the public would not discover from the answer or from any additional information which they would be entitled to demand in order to understand the answer.

 

31. Mr Pitt-Payne further submitted that there is no material difference between this request and what the position would have been if the request had set out the full terms of the Rule 4 letter, including Dr Y’s name. It seems to me that there is all the difference in the world, in that if the full text of the Rule 4 letter had been set out a reader of the request and answer would then have discovered Dr Y’s name.

 

32. Mr Pitt-Payne said that the GMC’s concern is that of being put in the position of needing to make disclosure to the public of the fact that there had been a complaint against a particular doctor. I do not see how my decision would involve any risk of that.

 

33. The fallacy in the GMC’s argument is perhaps further exposed when one considers that, by publishing this decision, the Upper Tribunal will be making public, if it has not been made public before (and I understood from Mr Cubells that it has) that on 6 June 2012 the GMC decided under Rule 4 not to investigate a complaint against the doctor named in a letter to Mr Cubells of that date. If an answer to Mr Cubells’ request would involve making public the name of that doctor, then so, logically, will the publication of this decision. But the publication of this decision will clearly not do so.

 

34. The second contention in Mr Pitt-Payne’s skeleton argument is that Dr Y’s identity would be incorporated into GMC’s answer in that the request refers back to his earlier request (“the request in question” in the first sentence), which did name Dr Y. In my judgment that is plainly not right. One must in my view regard the request in the letter of 29 April 2013 as starting immediately after the words “the latest request”. The earlier words were unnecessary introduction and the GMC would be entitled to leave them out in making available the terms of the request to the public. And again, even if the entire letter of 29 April 2013 were to be made available to the public, a member of the public would not in my judgment be entitled to require a copy of the earlier request. The earlier request would not be necessary in order to understand the later request or the answer to it.

 

35. As regards the Chamber President’s decision based on unfair processing of Z’s personal data, I refer to the terms of the first data principle, set out in para. 1 of Part I of Schedule 1 to the DPA. Mr Cubells contended that if (which he did not accept), “processing” of Z’s personal data would be involved in answering the request, such processing would be “fair” and “lawful” , and in particular the condition in para 6(1) of Schedule 2 to the DPA would be met.

36. Mr Cubells contended that the information about Z was necessary in order to enable him to identify Z, with a view to bringing a complaint against him.

 

37. In its response to Mr Cubells’ second appeal, the GMC’s contention on this issue was simply (see para. 36):

 

“Disclosure of the information to Mr Cubells would be unfair to Z, given that Z objects to such disclosure. It is unfair to put Z’s identity into the public domain when Z’s only link with these events is as an external legal adviser to the GMC. For similar reasons, disclosure would not satisfy any of the conditions in Schedule 2 to the DPA.”

 

38. In a later submission in the second appeal (p.147) Mr Pitt-Payne said on behalf of the GMC:

 

“Mr Cubells’ admission as to his purpose confirms that disclosure of the requested information would be unfair to Z. There is no basis whatsoever for asserting that he has any proper complaint against Z. All that Z has done is provide the GMC with advice that Mr Cubells disagrees with. It is unfair to Z to disclose information that will expose Z to a complaint of this nature, particularly in circumstances where (as here) Z objects to the disclosure.”

 

39. In para. 11 of his decision the Chamber President said simply:

 

“Having carefully considered all the material, I am satisfied that the written submissions of the GMC dated 30 May 2014 (the response) and 12 June 2014, on which Mr Cubells has had the opportunity to comment, are unanswerable. Put simply, either the request relates to Dr Y’s data, on which the last Tribunal’s decision is clearly correct, or, if not, they involve the personal data of the barrister and no reasonable tribunal could conclude that disclosure would be lawful and fair.”

 

40. The Chamber President was not referred to any authority in relation to the application of the first data protection principle, and nor have I been. In my judgment it was in all the circumstances inappropriate to strike out the second appeal on the ground that it had no prospect of success because no reasonable tribunal could find that the disclosure of information likely to lead to identification of Z was fair and lawful. The onus of establishing that it was entitled to rely on the exemption in s.40, and therefore that processing of Z’s personal data would contravene the first data protection principle, appears to have been on the GMC. It was not for Mr Cubells to establish that the processing would be fair and lawful. It seems to me that the Judge was not in a position to say that Mr Cubells had no real prospect of establishing that the disclosure of Z’s identity would be fair and lawful. In particular, the Judge was not entitled simply to assume, as he appears probably to have done, that Mr Cubells had no basis for making a complaint against Z. It was possible that Mr Cubells did have a basis for complaint. Whether, in general, a barrister is now entitled to expect his identity as the giver of advice to be withheld from public knowledge may be unclear. I am not satisfied that this was a suitable matter to be dealt with on a strike out application on the basis of no reasonable prospect of success. It raised questions which should have been left to a decision by the FTT in the normal way. Mr Pitt-Payne submitted that it involved questions of balancing the interests of Z, on the one hand, and of the public in knowing Z’s identity, on the other. That may be just the sort of question for which a FTT, with its lay members, is considered to be appropriate, and which a Judge alone should therefore be reluctant to decide on a strike out application.

 

41. The effect of my decision will therefore be that Mr Cubells’ second appeal will now need to be determined by a FTT on which (for the avoidance of doubt) the former President will not sit. The FTT will proceed on the footing, as I have held above, that confirming or denying whether the requested information is held, and indeed giving the information, would not involve processing Dr Y’s personal data. But subject to that, all issues in the appeal are at large.

 

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

3 August 2015