More Questions On The GDC’s Commitment To ‘Transparency’ As It Faces High Court Threat From Information Commissioner
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- Published: Friday, 12 August 2022 07:47
- Written by Chris Tapper
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For the second time in 15 months, the General Dental Council is under the threat of action in the High Court if it doesn’t comply with a Freedom of Information Request.
Leeds-based GDP Dr Dominic O’Hooley had appealed to the Information Commissioner regarding a decision by the GDC to not disclose information surrounding its procurement of private investigators to carry out under-guise Fitness to Practise investigations.
In April 2021, GDPUK reported that the GDC had to pay around £38,000 in legal costs after an action by Dental Protection led to the regulator admitted under a sealed declaration to the High Court that it had acted unlawfully during an under-guise investigation into a clinical technician.
During an undercover operation against the unnamed clinical dental technician in 2016, the GDC was said to have obtained investigation material unlawfully after it was revealed two private investigators posed as relatives of a fictitious housebound elderly lady, in order to try and induce the CDT to act outside his scope of practice.
The GDC carried out an internal review after it failed to reveal information on its tendering process for private investigation services, to Dr O’Hooley. The GDP had asked the regulator to disclose details of the tenders.
In September 2021, GDPUK reported that the GDC had decided to refuse Dr O’Hooley’s request under an exemption clause in the Freedom of Information Act.
The GDC said “Section 43 (2) exempts the disclosure of information which would, or would be likely to, prejudice the commercial interests of any individual or company, or the public authority itself.”
“We believe the release of this information would be likely to prejudice the commercial interests of the GDC.”
But after Dr O’Hooley’s appeal to the Information Commissioner, the Commissioner found that the GDC’s attempt to use Section 43(2) of the Freedom of Information Act to exempt itself from revealing the names of companies bidding to provide investigatory services, was “not engaged.”
The written decision said “The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.”
“Disclose the information in the weighting model that has beenwithheld under section 43(2) i.e. the names of the bidders.”
“The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court.”
The written decision said “The Commissioner is not convinced that disclosing the names of the unsuccessful bidders from seven years ago would lead to such a decline in numbers and quality of bidders in future tendering exercises that the GDC would not be able to obtain good valus and high quality services.”
The Information Commissioner did agree that the GDC’s citing of Section 12(1) of the Freedom of Information Act was appropriate.
That section of the FOIA allows a public authority to refuse to comply with a request for information where the cost of compliance is estimated to exceed a set limit known as the appropriate limit.
But the Information Commissioner considered the GDC’s original estimate of the amount of time it would take to get information from 116 boxes of documents to be “Somewhat inflated.”
The GDC had originally said it would take 322 hours to carry out a search.
The Information Commissioner said the GDC had subsequently acknowledged that it’s estimate was inflated, but the Commissioner decided that a more conservative 58 hours of staff time would exceed the cost limit.
In May 2021, the Information Commissioner’s Office (ICO) instructed the GDC to reveal details behind its decision to use its staff payroll budget to top up furloughed staff salaries in 2020, during the height of the pandemic.
The ICO instructed the regulator to disclose a copy of an email sent by the (former) Chairman (Dr William Moyes) to colleagues on 27th April. Failure by the GDC to comply with the ICO decision notice could have resulted in the Information Commissioner making written certification of the fact to the High Court, possibly resulting in the matter being dealt with as contempt of court.
The GDC later appealed the decision.
Recently, the GDC has caused much concern amongst UK dental professionals after it refused to comply with a Freedom of Information request asking for the number of registrants who have taken their own lives while under Fitness to Practise investigations.
In July, GDPUK reported that a subsequent search of its database by the GDC found reference to ‘suicide’ a total of 6,753 times.
At the time of writing, the GDC has still not complied with the FOI request, despite the interest and concern expressed by registrants.
The GDC told GDPUK in July “We want to provide clarity on this important issue, but the information we currently hold is not sufficiently complete or robust for us to be confident in sharing in its current form.”
“We are already looking into what is possible, but this is not straightforward and there are important issues to explore in terms both of the quality and consistency of the data we hold and of the ethical issues around its collection and publication. We look forward to providing an update on this work as it progresses.”
The decision to refuse the FOI request on suicide figures raised questions about the GDC’s commitment to ‘transparency.’
Writing about regulatory reform on the GDC website in March 2021, Stefan Czerniawski, Executive Director, Strategy said “At the core of the approach proposed in the consultation document, there would be much more scope for each of the regulators to set their own rules on the detail of how they operate, balanced by strengthening their transparency and accountability to ensure that those powers were used sensibly."
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