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Dear J Roberts,

Your information request – IR1-3161471241

Thank you for your email dated 1 August, in which you ask for the number
of requests for copies of MPT determinations you have refused because they
were published more than 10 years before the date received.

How we will consider your request

We’re going to consider your request under the Freedom of Information Act
2000 (FOIA). The FOIA gives us 20 working days to respond, but we’ll come
back to you as soon as we can.

Who to contact

Matt McCoig-Lees will be handling your request. If you have any questions
you can contact him via email at [1][email address].

Yours sincerely

Lauren Barrowcliffe

Information Access Team Assistant

[2][email address]

General Medical Council

3 Hardman Street

Manchester

M3 3AW

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Dear J Roberts

I write further to previous correspondence with a response under the
Freedom of Information Act 2000. I should say at the outset that I cannot
answer your principal question because of the amount of data you’ve asked
for and the work that would be involved. In relation to question two, both
terms relate to the same thing.

You asked for ‘the number of requests for copies of MPT determinations you
have refused because they were published more than 10 years before the
date received.’

As noted in the Upper Tribunal decision on 26 February 2018 the GMC put in
place an updated ‘Publication and Disclosure Policy – Fitness to
Practise’, made pursuant to section 35B(4) of the Medical Act 1983. It
provides that that a determination in respect of a decision by the GMC to
erase a doctor from the medical register is only published on a doctor’s
public record for a period of 10 years. Other provisions in the policy
allow for publication of other sanctions for different time periods.

We categorise Freedom of Information requests we have received on our
electronic database (and precursor spreadsheets which would also have to
be reviewed) in a variety of ways.  Requests for determinations could
easily be in one of a number of categories. For example: ‘Doctor FTP
information,’ ‘Doctor Registration information,’ ‘FTP Stats,’ ‘Hearing
minutes/outcome,’ ‘Historic doctor information,’ ‘Other,’ ‘Register
Stats.’ We also record a free text description of each request, but they
are only a general description and do not include all information
requested.

I think the only way that we would be able to definitively work out which
requests included a request for an MPTS determination which had been
refused would be to check each request where we had applied (fully or in
part) the S40(2), S40(5) or both exemptions.

However, even if we did this, I think there are two further problems in
providing a helpful response. The first one, in brief, is that I would not
expect there to be a written record of the reasons for our decision not to
disclose where the decision is, in our view, clear cut- which is the vast
majority of the requests.

The second one requires some context:

As you can see in the Upper Tribunal decision, there is a three part test
we must work through when considering if disclosure of any third party
personal data is appropriate.

It is:

(i) whether the requester has a legitimate interest in acquiring the data
sought

(ii) whether disclosure is necessary to meet that interest, and if so

(iii) consideration of balancing test to weigh those interests against the
rights and freedoms of the data subject

In relation to (iii), a consideration of the rights and freedoms of the
data subject includes a consideration of their legitimate expectations.
Those will in turn be shaped, in part, by any applicable publication and
disclosure policy. However, other factors will be relevant such as the
potential and likelihood for harm (including economic harm) to the data
subject and the nature of any objections they may have made. What
information is already in the public domain is also important.

Therefore, I would anticipate that every decision not to provide MPTS
determinations which record the erasing of a doctor from the medical
register after a period of 10 years from the decision would, in part, be
based on the legitimate expectations created by the relevant provisions of
any applicable publication and disclosure policy, even if there was no
recorded information on the point within a request.

However, it’s important to understand that we recognise that the policy is
not determinative. Nor is there a presumption against disclosure because
of the wording of the policy. We recognise that every request is different
and turns on its own facts, which may favour disclosure.

Our formal response

Under the FOIA there’s an exemption for requests where it would cost the
public authority more than £450 (the ‘appropriate limit’) to process -
equivalent to two and half days’ work.

To estimate the cost we can take into account determining, locating,
retrieving and extracting the information requested.

I estimate that there are around 450 requests since 26 February 2018 where
we have applied (fully or in part) the S40(2), S40(5) or both exemptions.
Assuming I was able to definitively rule out 200 requests by reading the
free text description, I’d have to check 250 requests manually. Firstly to
identify if they were for a request for one or more MPTS determination
which was published more than 10 years before the date of the request and
then, if so to search the record to see if there was any recorded
information which indicated that it was refused because of this reason, to
any extent. As I have already explained, I would not anticipate there
being much recorded information about the reasons for refusing a request
in the vast majority of cases but in order to confirm I would have to
check all or almost all of the documentation linked to the request. This
could take on average 10 minutes per file or over 40 hours in total. Based
on an hourly rate of £25 per hour (which is set by the Freedom of
Information (Fees and Appropriate Limit) Regulations 2004 and based on 40
hours) this would cost us £1000 to process. Your request would therefore
cost us  in excess of the appropriate limit. 

The exemption

Under the FOIA, the specific exemption which we believe applies is at
section 12. This states that we are not required to comply with a request
if we estimate that the cost of doing so would exceed the appropriate
limit.

As I have explained I do not believe we are likely to hold the information
you have requested due to the working practices of the team. If you
wanted, we could look at a single months data which would demonstrate how
unlikely we are to hold any relevant information which would answer the
question you asked. 

Appeal

If you wish to appeal my decision to apply an exemption, please email
[GMC request email], setting out your reasons to the Information Access
Manager. We will only consider appeals received within 40 working days of
our response. You can also appeal to the Information Commissioner, the
regulator of the FOIA and DPA. We can provide more details on this if you
need them.

Kind Regards

Matt

Matthew McCoig-Lees

Information Access Officer

Information Access Team

General Medical Council

3 Hardman Street

Manchester

M3 3AW

Email: [1][email address]

Website: [2]www.gmc-uk.org

Tel: 0161 923 6579

[3][IMG]

From: FOI
Sent: 03 August 2021 11:25
To: [FOI #778472 email]
Subject: RE: Freedom of Information request - Requests for determinations
refused because published over 10 years ago - Kayode v IC & GMC

Dear J Roberts,

Your information request – IR1-3161471241

Thank you for your email dated 1 August, in which you ask for the number
of requests for copies of MPT determinations you have refused because they
were published more than 10 years before the date received.

How we will consider your request

We’re going to consider your request under the Freedom of Information Act
2000 (FOIA). The FOIA gives us 20 working days to respond, but we’ll come
back to you as soon as we can.

Who to contact

Matt McCoig-Lees will be handling your request. If you have any questions
you can contact him via email at [4][email address].

Yours sincerely

Lauren Barrowcliffe

Information Access Team Assistant

[5][email address]

General Medical Council

3 Hardman Street

Manchester

M3 3AW

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