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Kayode v Information Commissioner & General Medical Council (Freedom of Information Act - application to fitness to practice determinations) [2021] UKUT 86 (AAC) (31 March 2021)
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Kayode v Information Commissioner and the General Medical Council
[2021] UKUT 86 (AAC)
1
IN THE UPPER TRIBUNAL
Appeal No. GIA/1075/2020
ADMINISTRATIVE APPEALS CHAMBER
On appeal from First-tier Tribunal (Social Entitlement Chamber)
Between:
Kolade Kayode
Appellant
- v
The Information Commissioner
First Respondent
-and-
The General Medical Council
Second Respondent
Before: Upper Tribunal Judge Wright
Decision date:
31 March 2021
Decided on consideration of the papers
Representation:
Appellant:
Mr Kayode represented himself.
First Respondent:
Alexandra Littlewood of counsel.
Second Respondent:
Christopher Knight of counsel.
DECISION
The decision of the Upper Tribunal is to dismiss the appeal.
REASONS FOR DECISION
1.
This appeal arises from permission given by the Chamber President of the First-
tier Tribunal (General Regulatory Chamber), Judge Alison McKenna, in respect of a
decision she had made on 10 July 2020 dismissing Mr K
ayode's
appeal. Judge
McKenna gave Mr Kayode permission to appeal on all seven of his grounds of
appeal.
2.
All parties agree that the appeal to the Upper Tribunal can be decided on the
papers, and I agree.
2
3.
Mr K
ayode's
appeal before the First-tier Tribunal concerned a request for
information he had made under the Freedom of Information Act 200
0 ("FOIA
) on 4
Jun
e 2019 to the General Medical Council ("GMC"). The information sought by Mr
Kayo
de from the GMC was "
a copy of the Fitness to Practice Panel (FTPP) determination
in the Fitness to Practice proceedings involving [a named doctor]
".
The eventual basis of
the
GMC's refusal to provide Mr Ka
yode with the information he sought was section
40(2) of FOIA. Mr Kayode then complained to the Information Commissioner under
section 50 of FOIA.
4.
It is important to emphasise at this stage a number of features of the evidence.
The GMC is the statutory regulator of doctors under the Medical Act 1983 and one of
its functions under that Act is to investigate c
omplaints about a doctor's fitness to
practise. The information sought by Mr Kayode fell under the investigative and
regulatory functions of the GMC. In 2007 the GMC had erased the doctor whose
determination was the subject of Mr Kayode's request from its register
. Full details of
the erasure, including the subsequent fitness to practice determination sought under
Mr Kayode
's request, were held on the register, and accessible as such, until
February 2018. However, on 26 February 2018 the GMC put in place a
"Publication
and Disclosure Policy
Fitness to Practise"
, made pursuant to section 35B(4) of the
Medical Act 1983. Under that policy the determination sought by Mr Kayode was no
longer made available to members of the public by the GMC from the date this policy
took effect. This was because the policy from 26 February 2018 provided that a
determination in respect of a decision by the GMC to erase a doctor from the medical
register was only available for a period of 10 years. That period of 10 years had
passed in respect of the doctor the subject of Mr Kayode's request by t
he time when
the policy took effect and so the link to the determination sought by Mr Kayode had
been removed on 26 February 2018. This was
over a year before Mr Kayode's FOIA
request.
5.
The essence of the GMC's case was that it would be contrary to the do
cto
r's
data protection rights to disclose the information sought by Mr Kayode beyond the
10-year publication period laid down in the policy.
6.
The Information Commissioner issued her Decision
Notice on Mr Kayode's
complaint on 25 November 2019. Her decision was that the GMC had correctly
applied section 40(2) of FOIA to withhold the information sought by Mr Kayode.
7.
In dismissing Mr Kayode's appeal from that Decision Notice Judge McKenna
noted that the appeal by Mr Kayode had originally been based on a
misunderstandi
ng about the GMC's policy about for how long detail
s of fitness to
practice determinations were published by it. The GMC's policy was not to delete
such determinations after only year but after ten years. Judge McKenna agreed with
the respondents that the
lawfulness of the GMC's policy was beyond the statutory
remit of the First-tier Tribunal. However, a correct understanding of that policy was an
important pre-
requisite to deciding Mr Kayode's appeal, in
the
judge's view, as it was
3
relevant to the expectations of the data subject concerned (i.e. the doctor). The
misunderstanding about the policy was unfortunate but not in Judge McKenna's view
determinative because the First-tier Tribunal had to conduct a full-merits review
based on the correct information.
In making that `full
-
merits' reconsideration the First
-
tier Tribunal directed itself to adopt a three-part test under Article 6(1)(f) of the
General Data Protection Regulation
2018 ("GDPR")
: namely, (i) whether there is a
legitimate interest, (ii) whether disclosure is necessary to meet that interest, and if so
(iii) consideration being given to a balancing test to weigh those interests against the
rights and freedoms of the data subject [here the doctor]: per Goldsmith International
[35].
8.
The First-tier Tribunal noted that Mr Kayode was not himself relying on any
context-specific factors but it accepted that a relevant factor could be the doctor with
whom Mr Kayode was concerned practising in other countries after having been
removed from the register in the UK. In Judge McKenna's view there
could be
specific reasons why a person in another country would wish to know why a doctor
practising in that country has been erased from the register in the UK, and access to
the fitness to practice determination would be a necessary means of meeting that
legitimate interest. Such a factor could, in the First-
tier Tribunal's view, tip the
balance in favour of disclosure, but no such case was being made in respect of the
particular doctor in Mr Kayode's request.
9.
The legitimate interest first part of the three-part test was met, and accepted as
such by all parties before the First-tier Tribunal, on the basis that there is a legitimate
interest in transparency about the system for ensuring doctors are fit to practice. The
First-tier Tribunal also accepted that second part of the three-part test set out in
Goldsmith was also met. In so holding the First-tier Tribunal agreed with Mr Kayode
and the Information Commissioner that it was necessary to access the fitness to
practice determinations to meet the identified legitimate interest. This then brought
the First-tier Tribunal to the third and final part of the test and whether, applying a
balancing test, the satisfaction of parts one and two of the three-part test outweighed
the rights of the data subject (the doctor) so as to require disclosure.
10. In carrying out this weighing analysis the First-tier Tribunal concluded that no
statutory provision required disclosure by the GMC of the Fitness to Practice
determination in respect of the doctor. Nor was the `open justice principle' relevant to
the balancing exercise. Further, the relevant time for deciding whether the requested
information was already
in the public domain was the date of the GMC's response to
the FOIA request as that was the moment when the requester's appeal rights
crystallised, and the requested information was not in the public domain at that time.
Moreover, the relevant time for co
nsidering the data subject's reasonable
expectations was also the date of the GMC's final response to the information
request. By that time the doctor concerned would have seen the details of his fitness
to practice determination had been removed from the
GMC's website in accordance
with its new policy. The First-tier Tribunal considered that it was not concerned with
the correctness of that policy but only with the reasonable expectations of the doctor
4
as a result of his reliance on this GMC policy. On that basis the doctor had a
reasonable expectation that the information would not be disclosed. The First-tier
Tribunal concluded this third part of its analysis by saying the following.
"
47. I have balanced carefully the weight of the legitimate interest and the
necessity which I have identified against the particular data subject's rights. I am
satisfied that it would be distressing to this data subject for the information of the
type here requested to be disclosed. Nevertheless, for the reasons I have alluded
to above, it seems to me there could well be circumstances in which the balance
would tip in favour of disclosure of such information, for example if there were
fresh fitness to practice concerns in another country which heightened the
arguments in favour of disclosure. However, there has been no suggestion that
this context-specific applies here and so I conclude that disclosure would be
unfair to the data subject in the circumstances of this case. I conclude that the
legitimate interests and necessity I have identified above should not override this
data subject's rights.
"
11. I have to say that at first blush I struggled to see on what basis this reasoning
gave rise to any material error of law on the part of the First-tier Tribunal. The
reasoning may be somewhat compressed but read in context and as a whole it
seemed to me to address the fundamental issues arising under section 40(2) of FOIA
and was a judgment the First-tier Tribunal was entitled to make on the evidence
before it. That initial impression remains even after considering the detail of Mr
Kayode's s
even grounds of appeal.
12. The seven grounds on which Mr Kayode was given permission to appeal are as
follows.
(i)
The First-tier Tribunal erred in law by considering only Article 6(1)(f) of
the GDPR.
(ii)
The First-tier Tribunal erred in law in stating its only concern was with
the reasonable expectation of the data subject.
(iii)
It fell into error when, having determined that the Information
Commissioner's Decision Notice was w
rong in at least one respect, it
nevertheless arrived at the same decision as the Information
Commissioner.
(iv)
The First-tier Tribunal was wrong in law in holding that the lawfulness of
the GMC's policy was
bey
ond the statutory remit of Mr Kayode's
appeal.
(v)
The First-tier Tribunal further erred in law in concluding that section
35B(4) of the Medical Act 1983 was permissive of disclosure rather
than mandatory.
(vi)
The First-tier Tribunal erred in law in failing to see the application of the
principle of open justice to the substantive issue on the appeal.
(vii) The First-tier Tribunal failed to give adequate reasons for its decision,
particularly in relation to grounds five and six.
5
13. Before turning to address those grounds and explaining why they do not give
rise to any error of law on the part of the First-tier Tribunal, I should first set out the
relevant law.
14. Section 40 of FOIA, insofar as is relevant, provided at the material time as
follows.
"
40.(2) Any information to which a request for information relates is also exempt
information if
--
(a) it constitutes personal data which does not fall within subsection (1), and
(b)the first, second or third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of
the public otherwise than under this Act
--
(a) would contravene any of the data protection principles...
(7) In this section:
"the data protection principles" means the principles set out in
-
(a) Article 5(1) of the [GDPR], and
(b) section 34(1) of the Data Protection Act 2018
...
"data subject" has the same meaning as in the Data Protection Act 2018 (see
section 3 of that Act);
"the GDPR", "personal data", "processing" and references to a prov
ision of
Chapter 2 of Part 2 of the Data Protection Act 2018 have the same meaning as in
Parts 5 to 7 of that Act (see section 3(2), (4), (10), (11) and (14) of that Act).
(8) In determining for the purposes of this section whether the lawfulness
principle in Article 5(1)(a) of the GDPR would be contravened by the disclosure of
information, Article 6(1) of the GDPR (lawfulness) is to be read as if the second
sub-paragraph (disapplying the legitimate interests gateway in relation to public
authorities) were omitted.
"
15. By section 3(2) of the Data Protection
Act 2018 `personal data' is defined as
"
any information relating to an identified or identifiable individual
".
16. The relevant data protection principle under section 40(3A) of FOIA is the first
data protection principle which is set out Article 5(1)(a) GDPR and provides that:
"
Personal data shall be processed lawfully, fairly and in a transparent manner in
relation to the data subject.
"
17. In the context of the GDPR, lawfulness means whether one of the conditions set
out in Article 6(1) is satisfied: per section 40(8) FOIA. Article 6(1)(f) of the GDPR
provides that:
6
"
processing is necessary for the purposes of the legitimate interests pursued by
the controller or by a third party, except where such interests are overridden by
the interests or fundamental rights and freedoms of the data subject which
require protection of personal data, in particular where the data subject is a
child
".
It is Article 6(1)(f) which the First-tier Tribunal in essence was addressing in the
passage quoted above form paragraph 47 of its decision.
18.
Mr Kayode's first ground of appeal relies on Article 6(1)(c) and 6(1)(e) of the
GDPR. These provide, respectively, as follows.
"
processing is necessary for compliance with a legal obligation to which the
controller is subject
"
and
"
processing is necessary for the performance of a task carried out in the public
interest or in the exercise of official authority vested in the controller
"
19. The relevant provisions of FOIA dealing with complaints to the ICO and appeals
to the First-tier Tribunal are found in sections 50 and 57-58 of FOIA. These provide
as follows:
"
Application for decision by Commissioner.
50.-
:(1)Any person (in this section referred to as "the complainant") may apply
to the Commissioner for a decision whether, in any specified respect, a
request for information made by the complainant to a public authority has
been dealt with in accordance with the requirements of Part I.
(2) On receiving an application under this section, the Commissioner shall
make a decision unless it appears to him
--
(a) that the complainant has not exhausted any complaints procedure which is
provided by the public authority in conformity with the code of practice under
section 45,
(b) that there has been undue delay in making the application,
(c) that the application is frivolous or vexatious, or
(d) that the application has been withdrawn or abandoned.
(3) Where the Commissioner has received an application under this section,
he shall either
--
(a) notify the complainant that he has not made any decision under this
section as a result of the application and of his grounds for not doing so, or
(b) serve notice of his decision (in this Act referred to as a "decision notice")
on the complainant and the public authority.
(4) Where the Commissioner decides that a public authority
--
(a) has failed to communicate information, or to provide confirmation or denial,
in a case where it is required to do so by section 1(1), or
(b) has failed to comply with any of the requirements of sections 11 and 17,
7
the decision notice must specify the steps which must be taken by the
authority for complying with that requirement and the period within which they
must be taken.
(5) A decision notice must contain particulars of the right of appeal conferred
by section 57.
(6) Where a decision notice requires steps to be taken by the public authority
within a specified period, the time specified in the notice must not expire
before the end of the period within which an appeal can be brought against
the notice and, if such an appeal is brought, no step which is affected by the
appeal need be taken pending the determination or withdrawal of the appeal.
(7) This section has effect subject to section 53.
Appeal against notices served under Part IV.
57.-:(1) Where a decision notice has been served, the complainant or the
public authority may appeal to the Tribunal against the notice.
(2) A public authority on which an information notice or an enforcement notice
has been served by the Commissioner may appeal to the Tribunal against the
notice.
(3) In relation to a decision notice or enforcement notice which relates
--
(a) to information to which section 66 applies, and
(b) to a matter which by virtue of subsection (3) or (4) of that section falls to be
determined by the responsible authority instead of the appropriate records
authority,
subsections (1) and (2) shall have effect as if the reference to the public
authority were a reference to the public authority or the responsible authority.
Determination of appeals.
58.-:(1) If on an appeal under section 57 the Tribunal considers
--
(a) that the notice against which the appeal is brought is not in accordance
with the law, or
(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could
have been served by the Commissioner; and in any other case the Tribunal
shall dismiss the appeal.
(2) On such an appeal, the Tribunal may review any finding of fact on which
the notice in question was based.
"
20. The last piece of relevant legislation is section 35B(4) (and (5)) of the Medical
Act 1983.
"
S35B(4):- Subject to subsection (5), the General Council shall publish in such
manner as they see fit
--
(a) decisions of a Medical Practitioners Tribunal that relate to a finding that a
person's fitness to practise is impaired (including decisions in respect of a
direction relating to such a finding that follow a review of an earlier direction
relating to such a finding);
(b) decisions of a Medical Practitioners Tribunal to make an order under
section 38(1) or (2) below;
8
(c) decisions of a Medical Practitioners Tribunal to refuse an application for
restoration to the register or to give a direction under section 41(9) below;
(d) decisions of an Interim Orders Tribunal or a Medical Practitioners Tribunal
to make an order under section 41A below (including decisions in respect of
orders varying earlier orders under that section);
(da) decisions of a Medical Practitioners Tribunal to make a direction under
paragraph 5A(3D) or 5C(4) of Schedule 4 and decisions of a Medical
Practitioners Tribunal under section 35D that relate to such a direction;
(e) warnings of a Medical Practitioners Tribunal regarding a person's future
conduct or performance;
(f) warnings of the Investigation Committee regarding a person's future
conduct or performance; and
(g) undertakings that have been agreed in accordance with rules made under
paragraph 1(2A) or (2C) of Schedule 4.
(5) The General Council may withhold from publication under subsection (4)
above information concerning the physical or mental health of a person which
the General Council consider to be confidential.
"
21. Turning now to the grounds of appeal, I will take them in the order advanced by
Mr Kayode. None of them demonstrate in my judgment any material error of law on
the part of the First-tier Tribunal in its decision of 10 July 2020. I would agree,
however, with the GMC that taking the grounds in the order presented by Mr Kayode
perhaps obscures the core of his argument for disclosure. His argument has its focus
on section 35B(4) of the Medical Act 1983 and arguments as to the scope of the
First-
tier Tribunal's jurisd
iction under section 58 of FOIA (ground 4 of the grounds of
appeal), and on the scope of section 35B(4) of the Medical Act 1983 and whether it
required the GMC to continue to publish the determination sought by Mr Kayode
(ground 5). Both grounds four and fiv
e of Mr Kayode's grounds of appeal are
misconceived and wrong, in my judgment (as are his other grounds of appeal). The
First-tier Tribunal had no general jurisdiction to consider the lawfulness of any
publication policy made by the GMC under section 35B(4) of the Medical Act 1983.
Properly understood, the First-
tier Tribunal's jurisdiction under section 58 of FOIA as
to whether the Information Commissioner's Decision Notice was "not in accordance
with the law" has to be understood in the
context of the statutory task the Information
Commissioner is required to undertake under section 50(1) of FOIA of determining
whether the information request was dealt with in accordance with Part I of FOIA. I
say more about this below. In addition, and for the reasons developed immediately
below, section 35B(4) of the Medical Act 1983 did not oblige the GMC to continue to
publish the determination sought by Mr Kayode after 26 February 2018.
22. First ground of appeal
wrongly focusing only on Article 6(1)(f) of the
GDPR
. Mr Kayode's argument here is that the First
-tier Tribunal should also have
considered Article 6(1)(c) and 6(1)(e) of the GDPR. The First-
tier Tribunal's reasons
for not finding these provisions of any material relevance is not explicit in its
reasoning. However, in my judgment it made no material error of law in not clearly
addressing these provisions in its decision. It plainly proceeded on the basis that they
were not relevant and I consider it was right to do so. The reasons challenge adds
nothing. The application of Article 6(1)(c) depends on the GMC, as the relevant State
actor, being under a legal obligation to process the information. Mr Kayode relies on
section 35B(4) of the Medical Act 1983 as imposing that obligation. In my judgment,
9
that section does not impose any such obligation because the opening wording of
section 35B(4) only
provide that the GMC "
shall publish in such manner as it sees
fit
...decisions....that relate to a finding that a person's fitness to practice is impaired
".
Reading that statutory wording as a whole I do not consider that it imposes a legal
obligation on the GMC to publish all its fitness to practice determinations for an
indefinite period or for more than 10 years. The word "shall" need
not mean "must"
(see, for example, but in a different context, SSWP v Hooper 2007 [EWCA] Civ 495
at paragraphs [56]-[57]) and will takes its meaning from its surrounding context.
23.
But even if the `shall' in section 35B(4) does impose a duty or obligation, the
content of that duty has to be determined by the rest of the wording in section 35B(4).
I agree with the GMC that properly read any `duty' in section 35B(4) only requires the
GMC to engage in some manner of publication, but it does prescribe how that
publication is to be made or for how long it is to be maintained. Those latter
cons
iderations are covered by the wording "
in such manner as [the GMC] sees fit
". That
wording must be given effect but on Mr Kayode's argument it would seem to have no
effect. His argument must be that the duty under section 35B(4) compelled the GMC
to keep in publication for more than 10 years (and presumably for all time) the
determination he sought in June 2019. I cannot see how that result is consistent with
the wording of section 35B(4) as a whole. For that result to hold the relevant wording
of section 3
5B(4) would need to read something like "the GMC must
publish, and keep
published, all d
ecisions....that relate to a finding that a person's fitness to practice is
impaired
". I have
deliberately used the wordi
ng `
keep
in publication' because it is a
necessar
y stage in Mr Kayode's argument.
The GMC had published the relevant
details in relation to the doctor the subject of Mr Kayode's request but had ceased
doing so on 26 February 2018. Even if the GMC was pursuant to section 35B(4)
under a duty to publish the relevant determination, it had done so, and so had met its
duty.
24. The reading I consider applies to section 35B(4) of the General Medical Act is
reinforced, in my judgment, by two further considerations. First, the wording
"
[the
GMC] shall publish in such manner as it sees fit
"
applies to all the categories of decision
recited in in that section and so is more likely to be a general duty to engage in some
manner of publication. Second, I accept th
e GMC's point that
it is required to
exercise its function under section 35B(4) in accordance with its duty under section 6
of the Human Rights Act 1998 to act compatibly with Convention rights. This can
impose significant restrictions on publication of determinations: General Medical
Council v X [2019] EWHC 493 (Admin). The passage of time allowing once public
matters to recede back into the private life is a well- recognised aspect of Article 8
ECHR, including by reference to criminal proceedings: see, e.g., R (T) v Chief
paragraphs [16]-[18].
25. Article 6(1)(e) of the GDPR may fall into different territory in that it may not be
concerned with processing as a result of a legal obligation but instead processing
resulting from the exercise of a legal power. Even if this is so, however, and section
35B(4) of the Medical Act 1983 provides a relevant power to publish the sought after
determination, it was not `necessary' to so given tha
t t
he GMC's clear policy is not to
publish such a determination after a relevant passage of time. Again, any failure by
10
the First-tier Tribunal to explain why Article 6(1)(e) did not apply does not of itself
amount to a material error of law in its decision given the lack of merit in the
substantive argument on Article 6(1)(e).
26. Second ground of appeal
First-tier Tribunal wrong only to have concern
with reasonable expectation of the data subject. This seems to me in the final
analysis to be more than a merits argument reworked. I can find nothing in the First-
tier Tribunal's reasoning which supports the argument that it focused solely on the
reasonable expectations of the doctor whose fitness to practice determination was
the subject of the request. The merits basis for this ground is revealed in my
judgment by Mr Kayode arguing that "
the weight accorded to the reasonable expectation
of the [doctor] ought to have been limited
". It was for the First
-tier Tribunal to evaluate
the w
eight to be given to doctor's reasonable expectat
ion and make a judgment on it,
and that it has done. Nor does any reasons challenge add anything to the argument
here.
27. However, Mr Kayode extends his argument here, as I understand it, by arguing
that the First-tier Tribunal was wrong in approaching the
issue of `reasonable
expectation' as one of fact rather than a question of law and that it failed to recognise
the (alleged) legal principle that it is not possible to create a reasonable expectation
of privacy in respect of a matter that was previously in the public domain (because
the `doctor's information' had been published by the GMC until 26 February 2018).
There are two problems with this argument which make it unsustainable in error of
law terms. First, the First-tier Tribunal found as a fact that the information was not
obviously in the public domain at the relevant time and because of this the doctor
concerned would "at that time" have had a reasonable expectation that the requested
information would not be disclosed. I agree with the respondents that as a result of
that uncontested finding it was simply not relevant whether the requested information
had been in the public domain at some point in the past. Second and in any event,
the alleged principle on which Mr Kayode founds is incorrect. The question of
`reasonable expectation'
is one to be decided on the facts of the individual case: see
paragraphs [24] and [30] of GR-N v ICO and Nursing and Midwifery Council
not concerned with section 40(2) of FOIA and the lawful processing of personal data
under the GDPR or either Data Protection Act (1998 or 2018).
28. Third ground of appeal
wrong for First-tier Tribunal to uphold the
Information Commissioner's Decision No
tice having found it wrong in at least
one respect. The errors identified and relied on by Mr Kayode are that the
Information Commissioner proceeded (i) on the basis of a wrong understanding
about the GM
C'
s publication policy (thinking it to be for 1 year rather than 10 years),
and (ii) by wrongly relying on a previously expressed view of hers, in her regulatory
and advisory role, about the GMC's policy. The short answer to this is that neither
error (if it be such) was considered by the First-tier Tribunal to vitiate the Decision
Notice and having conducted its own full-merits reconsideration the First-tier Tribunal
was entitled to uphold the Decision Notice notwithstanding these errors. Following
the Upper
Tribunal's decision in
11
[2018] AACR 29, the First-tier Tribunal was entitled under its full-merits
reconsideration under section 58 of FOIA to disagree with aspects of the ICO's
reasoning but still uphold her Decision Notice and dismiss the appeal. Mr Kayode
advances no compelling reason not to follow Malnick (see paragraph [37(iii)] of
was plainly correct. Nor does he really explain why the said errors were material to
the Decis
ion Notice and could not be `cured' by the First
-tier Tribunal exercising its
full-merits jurisdiction. Further, a reasons challenge has no purchase here as the
First-tier Tribunal clearly explained its concerns about aspects of the Decision Notice,
but directing itself correctly on the basis of Malnick it found afresh that the decision in
that Decision Notioce was nonetheless in accordance with the law.
29. Fourth ground of appeal
First-tier Tribunal wrong to consider its
statutory remit precluded it from r
uling on the lawfulness of the GMC's policy.
I
have addressed this already in paragraph 21 above. There is little to add to that
analysis. Like the first ground of appeal, a reasons challenge here on its own takes
Mr Kayode nowhere as a failure to give reasons can only be a material error of law if
the substantive argument has merit. Here it does not. The function of the Information
Commissioner under section 50 of FOIA was no wider than deciding if Mr Kayod
e's
request for information had been dealt with in accordance with Part I of FOIA. That
statutory remit did not involve the Information Commissioner in deciding whether the
GMC's February 2018 '10 year' publication policy was lawful.
That is reinforced by
the limited nature of the decisions the Information Commissioner may reach under
section 50(4) of FOIA. As Judge McKenna put it, the primary relevance of that policy
sounded in any reasonable expectation the doctor may have at the relevant time in
2019 based on that policy.
30. The First-tier Tribunal is a statutory tribunal and only has the jurisdiction
conferred on it be the statute. That statute here is FOIA.
The phrase "
the decision
[notice] against which the appeal is brought is not in accordance with the law
"
in section
58(1)(a) of FOIA has to be read and understood in that context given its focus on,
here, the Decision Notice under section 50 of FOIA. The `law' spoken of in section
58(1)(a) is thus Part I of FOIA and, see Malnick at paragraph [100], procedural
fairness issues in the making of the decision in the Decision Notice. But it does not
extend to any and all law generally or public law challenges to the lawfulness of
policies of a public authority.
31. Fifth ground of appeal
section 35B(4) of the Medical Act 1983 is
mandatory of disclosure rather than permissive. The precise legal scope of
section 35B(4) was relevant to whether Article 6(1)(c) or 6(1)(e) of the GDPR was
relevant to Mr Kayode's appeal to the First
-tier Tribunal. I have largely addressed the
arguments here under the first ground of appeal above and for the reasons given
there the First-
tier Tribunal's holding that section 35B()4) of the Medical Act 1983 did
not impose an obligation on the GMC to (continue) publishing the relevant
doctor's
information was not in error of law. And a separate reasons challenge here should
not lead to any conclusion that the First-tier Tribal erred in law given the lack of merit
in the fifth ground as a substantive ground of appeal.
12
32. Sixth ground of appeal
failure to apply the principles of open justice. I
confess to struggling to understand what this ground added to Mr Kayode's appeal
below or from where these principles of open justice are said to arise in a FOIA
context. Neither Article 6 nor Article 10 of the European Convention on Human
Rights would seem to apply in the context of FOIA (see Moss v ICO and the Cabinet
failure to hold the hearing below in an accessible and transparent manner. I am also
unclear how such principles have a separate and independent application under
section 40(2) of FOIA and Article 6 of the GDPR (that is, how this ground assists Mr
Kayode even assuming (as I have found) all his other grounds fail). Be that as it may,
transparency was taken into account, indeed relied on, by the First-tier Tribunal when
it addressed the first two parts of the Article 6(1)(f) analysis. Further, I can find no
error of law in the First-tier Tribunal deciding that the principle of open justice was not
relevant once it reached weighing under Article 6(1)(f) the interests of transparency
against the reasonable expectations of the doctor. And the principles of open justice
did not otherwise require, given my conclusions under the first ground of appeal, the
information to be published under Article 6(1)(f). Nor do I consider that a separate
reasons challenge adds anything useful to this ground. In the context of this
somewhat legally vague ground of appeal, the First-tier tribunal provided adequate
reasons in r
elation to the `principles of open justice' and their application to the
appeal before it.
33. Seventh ground of appeal
inadequate reasons. I have addressed and
rejected this ground in the relevant paragraphs above and need say no more about
why this ground is not made out.
34. I should add that in coming to my decision above I have considered with care
Mr Kayode's 82 page, 268 paragraph `Response to the Respondents' Response[s] to
the appeal'. Stripped to it
s essentials I found nothing in that response that differed or
added materially to the arguments I have addressed above.
35. For all the reasons set out above this appeal is dismissed.
Approved for issue by Stewart Wright
Judge of the Upper Tribunal
On 31 March 2021
