Health Professions Council v the Information Commissioner [2008] UKIT EA_2007

Appeal NumberEA/2007/0116:

Decision

The Tribunal upholds the Information Notice dated 1 October 2007 and dismisses the
appeal.

Reasons for Decision

Introduction

1. This appeal arises from an Information Notice issued by the Information
Commissioner to the Health Professions Council (HPC) on the 1 October 2007.
The Information Notice related to an information request under the Freedom of
Information Act 2000 (FOIA) by Ms Sue Lee in a letter dated 1 January 2007. That
request was refused by the HPC and Ms Lee applied to the Information
Commissioner under section 50 of the FOIA. As part of the Information
Commissioner’s investigation, he issued an Information Notice requesting sight of
the disputed information which the HPC had refused to disclose to Ms. Lee. The
HPC has appealed the Information Notice under section 57(2) of FOIA.

2. The Tribunal noted that the investigation of Ms Lee’s section 50 application has
been put on hold pending the determination of this appeal. Hence there is still no
resolution of her request for information under FOIA made in January 2007. For
this reason the Tribunal had sought to expedite the hearing of this appeal and was
grateful to the parties for their observance of what was a relatively tight timescale
for bringing the case to hearing. The Tribunal did not call for the disputed
information as it was of the view that this case should be decided without regard to
the subject matter of the request or the correctness or otherwise of the exemptions
claimed.

Background

3. The HPC is established under the Health Professions Order 2001 (the 2001 Order)
and has responsibility for the regulation of 13 different types of health professionals.
Its main functions are set out at article 3(2) of the 2001 Order as:

Appeal NumberEA/2007/0116:

“…to establish from time to time standards of education, training, conduct and
performance for members of the relevant professions and to ensure the
maintenance of those standards.”

The main objective in exercising its functions is “to safeguard the health and well-
being of persons using or needing the services of registrants.”

4. The HPC’s functions include the maintenance of a register of health professionals
and a mechanism, called the Fitness to Practise process (the Process) whereby the
conduct and performance of registrants may be investigated and called to account.
An adverse adjudication on a registrant’s fitness to practise may lead to, amongst
other things, a registrant being removed from the register (such that they could not
work in their chosen profession) or conditions being attached to the performance of
their profession.

5. Members of the public, employers etc. may make allegations to the HPC with
regard to the fitness to practise of particular registrants. Such cases are
investigated by the HPC and as a preliminary step in the Process a decision will be
taken by a Panel of the Investigating Committee (the Investigating Committee)
whether there is ‘a case to answer’. Where it is decided that there is not, that will
be the end of the case against the registrant. Where the Investigating Committee
decides there is case to answer this is referred to a different Committee for a full
hearing.

The original request for information

6. Ms. Lee made an allegation to the HPC that a particular registrant’s fitness to
practise was impaired. This was investigated and papers duly put before the
Investigating Committee. The Committee decided that there was no case to
answer. Ms. Lee, who was unhappy with this decision, then made a FOIA request
in relation to the papers that were put to the Investigating Committee. This was
refused by the HPC on the grounds that certain exemptions applied, namely
sections 30 (investigations and proceedings conducted by public authorities), 40
(personal data) and 41 (confidentiality).

Appeal NumberEA/2007/0116:

The application to the Information Commissioner

7. Ms. Lee then made an application under section 50 of FOIA for a decision by the
Information Commissioner as to her whether request had been dealt with in
accordance with law. As part of his investigation, the Information Commissioner
sought to be provided with the disputed information which had not been provided to
Ms. Lee. Initially he sought this without recourse to the issuing of an Information
Notice. The HPC resisted on the basis that, absent a formal Information Notice, it
did not have the power to disclose the information.

8. The HPC set out its concerns in correspondence over the months of July to
September 2007 as to the potential damage to the Process were registrants to be
aware that information had been passed to the Information Commissioner.

9. The Information Notice was issued on 1 October 2007 and the HPC filed a
Notification of Appeal against the Notice on 29 October 2007.

The appeal to the Tribunal

10. The HPC’s grounds of appeal have been refined during the course of the
proceedings and certain have been dropped. Counsel for the HPC at the hearing
set out the appeal on the grounds that the Information Commissioner had either (a)
erred in exercising his discretion to issue an Information Notice and/or (b) the
Information Notice was not in accordance with the law on the basis that the
Commissioner had failed to have regard to relevant matters, namely the way in
which the Process would be undermined as a result of the Notice. It was argued
that, as registrants believed that the information they provided to HPC at the ‘case
to answer’ stage was confidential, the effect of the Information Notice would be to
discourage the provision of information at this early stage, for fear of disclosure to
the Commissioner and onward disclosure by the Commissioner to the public.
Counsel for the HPC accepted at the hearing that the two grounds of appeal were,
for practical purposes, identical.

The questions for the Tribunal

11. The Tribunal considered:

Appeal NumberEA/2007/0116:

a. whether the net effect of:

i. the practises and procedures of the Information Commissioner; and

ii. the prohibition against disclosure under section 59 of the Data
Protection Act 1998 (DPA),

was a sufficient guarantee of the Information Commissioner keeping the
disclosed information confidential to negate or at least substantially reduce
the perceived fears of registrants and therefore the purported damage to the
Process;

b. whether, in the light of the above, the purported damage to the Process was,
as argued, sufficiently serious to mean that the Information Commissioner
ought to have exercised his discretion differently and not to have issued the
Information Notice;

c. whether the Information Commissioner had failed to take into account
relevant considerations, namely the potential damage to the Process in the
exercise of his discretion.

Evidence

12. The Tribunal heard evidence from Mr Jonathan Bracken from Bircham Dyson Bell,
solicitors for the HPC. Mr Bracken has been involved in the setting up of the HPC,
had advised on many of its processes and drafted its rules.

13. Mr Bracken explained to the Tribunal that the HPC had moved away from a punitive
disciplinary scheme and had put in its place the Fitness to Practise regime,
common to many health profession regulators. The HPC seeks to strike a balance
between the regulator’s primary function of public protection and having non-
punitive methods of addressing concerns about the competence and conduct of
registrants.

14. The Process is in two stages. The first is to investigate the allegation, including
taking statements where appropriate. The investigation papers are put before the
Investigating Committee which decides in a private meeting, whether there is a

Appeal NumberEA/2007/0116:

case for the registrant to answer. If so, the allegation is publicised and the matter
goes forward to either a Conduct and Competence or Health Committee hearing
which is normally held in public. If it is decided that there is no case to answer, the
papers are ‘sealed’ and kept confidential. They are retained however for three
years should a further similar matter come to light.

15. The test to be applied by the Investigating Committee in the first stage of the
Process is whether there is a case to answer that the fitness to practise of the
registrant is impaired by reason of one of several specified grounds (e.g.:
misconduct, lack of competence, ill health etc.). As this test is expressed in the
present tense (vis “is impaired”) the Committee is looking for evidence of the
registrant’s current and possibly future conduct and competence.

16. Mr Bracken explained that the Process had been designed to promote the
maximum level of frankness from those providing information at this stage. In
practise, registrants provide a wide range of information that would not have been
provided under the old model of a disciplinary regime (in which registrants keep
back their mitigating evidence until a finding of breach). This information often
involves expressions of regret, apologies or private matters as to health and
relationships etc. The HPC’s aim is, in appropriate cases, to avoid striking from the
register those registrants who, perhaps with remedial help, could properly remain in
service - hence the non-punitive approach.

17. Mr Bracken gave evidence that it was his belief that registrants were only prepared
to give this wider range of information to the HPC, as they received assurances of
confidentiality and understood that their information would not be made public. He
was concerned that were registrants and others to be aware of the possibility of
disclosure to the Information Commissioner and then possible further disclosure to
the public (including the original complainant), that this source of information would
be undermined. He felt that this would have a major negative impact on the HPC’s
ability to carry out its functions and therefore the protection of the public.

18. The Tribunal asked Mr Bracken to point out any documentary evidence of the
confidentiality assurances given. It appeared however that HPC officials gave
these over the telephone (see, however, paragraph 22). The Investigation Manual

Appeal NumberEA/2007/0116:

provided to the Tribunal and the standard letters did not reflect this practise.
Indeed, the standard letter to registrants subject to a complaint states that “any
representation you make may also be sent to the person who made the allegation
against you (to clarify any points raised) and you should bear this in mind in
preparing your response”. Mr Bracken felt that this was perhaps not as well worded
as it might be and that in reality it rarely happens that information from a registrant
is sent to a complainant (and if information is sent it is restricted to a selection of the
information provided). He pointed out that as a matter of law, the HPC was not
obliged to share this information with a complainant.

19. It was his evidence that where the Investigating Committee found a case to answer,
registrants would understand that they would have a choice whether anything they
said to date would be passed on to the next stage. That way, the registrant was
given the maximum opportunity for frankness at the early stage without any
prejudice to a final fitness to practise determination. Mr Bracken confirmed that this
assurance was again given over the telephone and was, as far as he was aware,
not reflected in the HPC standard documentation.

20. Mr Neil Willis, a Biomedical Scientist, registrant and Council member, gave
evidence with regard to registrants’ perceptions and the possible fears they would
have if the Information Notice was to be upheld. He said that he would be reluctant
to provide detailed personal information if he believed it may be handed over to a
third party or made public. This was especially since, if the complaint proceeded,
he would be offered the chance to decide what information went forward to the full
hearing. He was particularly concerned at the possibility of disclosure of witness
information to the public and possible embarrassment for the registrant’s
colleagues. Mr Willis’ evidence supported Mr Bracken’s but as he had never had
an allegation actually made against him he was unable to help on how and in what
terms assurances of confidentiality were given to registrants.

21. Finally, the Tribunal heard from Ms Kelly Johnson, the Director of Fitness to
Practise. Ms Johnson pointed out that the complainant may be contacted during
the investigation to clarify specific points of fact arising from the registrant’s
observations. The observations themselves were not provided to the registrant.

Appeal NumberEA/2007/0116:

She told the Tribunal that the standard letter referred to at paragraph 18 above was
a “carry-over” from an old letter and not in line with the HPC’s current procedures.

22. It was Ms Johnson’s evidence that not all registrants would in fact contact the HPC
by phone and she accepted that given this, not all registrants would have been
given an assurance as to the confidentiality of the information provided.

23. Ms Johnson was asked why, if the confidentiality of the registrants’ information was
considered so important by the HPC, their guidance and standard documentation
did not reflect this. She responded that their practice and procedure guidance were
living documents and in certain respects in need of revision. She was of the view
however that given that the Investigating Committee decision was made in private,
a matter made clear to all registrants in their leaflets and letters, they would assume
from this that their information would be treated confidentially.

24. Finally, she told the Tribunal that there was a theoretical possibility that fitness to
practise information at this early stage could be shared with the competent
authorities of other European Union states. In addition, circumstances could arise
in which the HPC gave the police a registrant’s information prior to a no case to
answer determination. Registrants were not warned of these possible public
interest disclosures.

25. The real concern, she said, was the disclosure to the public that may follow a
disclosure to the Information Commissioner. In particular, registrants would fear
that complainants would thereby have access to the information. The examples
given were where the registrant had raised physical or mental health or relationship
issues. She accepted however that this information would likely all be personal
data such that the Information Commissioner would not be free, on account of the
DPA, to make disclosure to third parties.

26. In the light of this Ms. Johnson further accepted that, given the possible applicable
exemptions, the Information Commissioner’s own policies on non-disclosure and
the operation of section 59 DPA, the registrants’ fears might be said to be
misplaced or exaggerated.

Appeal NumberEA/2007/0116:

27. She was asked as to the possible implications of the damage to the Process. She
felt that there would be a significant rise in the number of cases where the
Investigating Committee found there to be a case to answer. This would in turn
place an additional cost on the HPC and as a consequence push up its registration
fee. She pointed also to the hardship that a registrant may face where it became
public that there had been an allegation made against him or her in circumstances
in which there was in fact no case to answer. She accepted however that it was in
the registrant’s self-interest to be open with the HPC at this early stage as this might
be said to be the best way of ensuring that the matter went no further and did not
become public.

Legal submissions and analysis: HPC

28. Counsel for the HPC argued that the Council was under a duty of confidence owed
to the registrant, arising from the nature of the relationship. He took the Tribunal
through the relevant powers and duties of the HPC to substantiate his assertion that
there was nothing in the Order which obliged disclosure at this early stage. He did
acknowledge however that article 22(10) of the Order provided:

“The Council may disclose to any person any information relating to a person’s
fitness to practise which it considers to be in the public interest to disclose”.

29. This reflected the so-called ‘public interest disclosures’ that would fall within a public
interest defence to a claim of breach of confidence. So, for instance, the HPC was
unlikely to be in breach of a duty of confidence if it disclosed a child protection
matter to the police or social services.

30. It was argued by the HPC that the Information Commissioner failed to take into
account the way in which the Process would be undermined if registrants were
aware of the possible disclosure to the Commissioner. Counsel took the Tribunal to
a letter dated 31^st August 2007 from the Information Commissioner’s Office to the
HPC to evidence that the Commissioner had failed to take into account the possible
damage that would ensue from disclosure to the Commissioner himself rather than
the damage that might flow from onwards disclosure to the public by the
Commissioner (emphasis supplied):

Appeal NumberEA/2007/0116:

“I appreciate the HPC’s explanation that the purpose of the fitness to practise
process is to protect patients in a non-punitive way. The HPC has provided
arguments as to why disclosure may damage this process and that this may
harm a registrant. However these appear to be arguments to support its
reasons why the information should not be disclosed to the public. They are not
grounds to justify not providing the Commissioner with access to the withheld
information. This information is necessary to enable him to carry out his role of
adjudicating on a public authority’s compliance with the Act. It would not be
prudent for him to do so without having sight of the withheld information. The
information is required to allow him to consider the strength and/or validity of
arguments put forward by the public authority to justify its reliance on any
exemptions under the Act. “

31. Counsel for the HPC drew the Tribunal’s attention to a leaflet entitled “what
happens if a complaint is made about me”. At page 4 of this document, registrants
are informed that the Investigating Committee will meet in private and that if a case
to answer is found then the HPC is obliged to publicise referrals (the details to be
referred including only name, registration number and the allegation).

32. The HPC argued that with regard to fear of onward disclosure by the Information
Commissioner the Tribunal needed to consider whether section 59 DPA provided
sufficient guarantees of the Commissioner keeping the information confidential.
Section 59 provides:

”59. (1) No person who is or has been the Commissioner, a member of the
Commissioner’s staff or an agent of the Commissioner shall disclose any
information which –

(a) had been obtained by, or furnished to, the Commissioner under or for the
purposes of the information Act,

(b) relates to an identified or identifiable individual or business, and

Appeal NumberEA/2007/0116:

unless the disclosure is made with lawful authority.”

(2) For the purposes of subsection (1) a disclosure of information is made with
lawful authority only if, and to the extent that –

(a) the disclosure is made with the consent of the individual or of the person for
the time being carrying on the business,

(b) ……..

(i) any functions under the information Acts, or

(e) having regard to the rights and freedoms or legitimate interests of any
person, the disclosure is necessary in the public interest”

Breach of this provision is a criminal offence.

33. He took the Tribunal to paragraph 42 of an earlier case of the Tribunal, Friends of
the Earth v Information Commission and DTI (Appeal no. EA/2006/0036)(“the FOE
case”), in which it considered the effect of section 59(2)(c) of the DPA:

”If a public authority withheld its consent to publish harmless information that
could not be regarded as confidential, in the Tribunal’s view no offence would
be committed if the Commissioner or his staff disclosed it. Although the
Commissioner decided on balance in this case that disclosure would have been
likely to impede the free flow of information, a decision which was in the
Tribunal’s view justifiable, an alternative decision was available to him. The
Commissioner and his staff should in the Tribunal’s view consider themselves
free to strike a responsible balance between the conflicting considerations
favouring disclosure or non-disclosure as the facts of each case require.
Section 59 is a sanction against unauthorised or reckless breach of

Appeal NumberEA/2007/0116:

confidentiality and it is not a necessary requirement of the directive that it
should go any wider than underpinning the duty of professional secrecy with
regard to confidential information as required by article 28. The duty to protect
individual privacy of third parties whose information is at issue is in many data
protections cases likely to be the overriding consideration. But where the
Commissioner is exercising functions under the Freedom of Information Act, the
broad purpose of which is to confer statutory rights of access to information, an
overriding right of the public authority to withhold its consent to disclosure would
contradict the purposes of the legislation. It is right that in each case the
Commissioner should be able to balance the importance of the free flow of
information contemplated by the letter and spirit of sections 58 and 59, and the
case for disclosure of information relating to the public authority which would in
his opinion, be necessary for the purpose of performing his functions, whether
or not the consent of the public authority is forthcoming.”

34. In relation to section 59(2)(e) the Tribunal said at paragraph 44:

“The Tribunal agrees that at least four elements enter into the equation, namely,
first the extent of the legitimate interests of the FOE, second, the extent of the
DTI’s interests, third, the public interest in ensuring that there is a transparent
public understanding as to the manner in which the Commissioner discharges
his functions and fourth and finally, that perhaps countervailing public interest in
protecting the ability of the Commissioner to carry out its statutory function
under section 50”

35. Counsel submitted that, further to the above analysis, the terms of section 59(2)(c )
and (e) are such that the Information Commissioner may exercise a discretion that
he should make disclosure or conclude that he is obliged to disclose to the public in
circumstances in which the HPC would not. In this way it was argued that the
confidentiality enjoyed by the registrant was diminished by the information being
passed to the Information Commissioner. Section 59 was not, it was argued, a
sufficient guarantee to assuage the registrants’ fears.

Legal submissions and analysis: Information Commissioner

Appeal NumberEA/2007/0116:

36. Counsel for the Information Commissioner invited the Tribunal to consider the
statutory scheme underpinning Information Notices. The Information Commissioner
is responsible for the regulation of the compliance by public authorities of their
powers and duties under the FOIA. The HPC is listed in Part 6 of Schedule 1 as an
authority to which the Act applies. The Act provides powers for the Commissioner
to require production of information where a section 50 application has been made
or for the purposes of his functions. It was clearly contemplated by Parliament that
the Commissioner was to have the power to issue the Information Notice in a case
such as this in the furtherance of his functions.

37. Counsel told the Tribunal that very exceptionally the application of exemptions may
be evident to the Commissioner without his having to see the disputed information
(a simple list of names and addresses, for instance) but in practise he would almost
always have to see the information to carry out his duties.

38. It was submitted that there were sufficient guarantees as to safe treatment of such
information to assuage, if not negate, the purported fears of registrants. Most
notably, section 59 created the criminal offence which prohibited onward disclosure
other than with lawful authority.

39. Counsel for the Information Commissioner emphasised that for there to be a
disclosure with lawful authority under section 59 a test of necessity would apply –
such that there was a high threshold to be met.

40. She also drew the Tribunal’s attention to the ICO document “the Information
Commissioner’s Transparency Policy: Disclosing Information about Specific
Individuals and Organisations”. This reflected the practise that disputed information
would not be disclosed until a final determination either by the Commissioner
himself or this Tribunal.

41. Finally, it was submitted that the effect of upholding this appeal would be to declare
the HPC beyond review with regard to certain aspects of its FOIA duties. The
Commissioner would be obliged to accept the assertions of the HPC as to the
correctness of exemptions claimed and would not be able to verify for himself. In
this way the statutory scheme and the Commissioner’s role would be significantly
undermined.

Appeal NumberEA/2007/0116:

Conclusion

42. The Tribunal noted at the outset that the Information Notice itself did not adequately
make clear the matters that the Commissioner had taken into account or the
reasons for the need for the Notice. As such it had been necessary to look at the
correspondence leading up to the decision to issue the Notice. Inevitably, the
letters in question were not as tightly written as a formal document. The Tribunal
gave a broad construction of the letter of 31st August 2007 (set out at paragraph 30
above) and concluded that the Information Commissioner had indeed taken into
account the alleged damage to the Process. This included the purported damage
to the Process that would follow from both disclosure to the Information
Commissioner himself and possible onwards transmission to the public. The
impugned wording in that letter (underlined and set out in paragraph 30 above)
were, in the Tribunal’s view, an indication that he had taken the purported damage
into account and represented his conclusions why nevertheless the Notice needed
to be issued.

43. The Tribunal recommended that in future cases the Information Commissioner set
out in greater detail, as he does for Decision Notices, the matters taken into account
and the reasons for the decisions taken.

44. The Tribunal did not accept the HPC’s argument that the Commissioner should
have considered asking for just some of the disputed information as it was self
evidently the case that he would not know what to call for without having sight of the
documents themselves.

45. With regard to section 59 DPA the Tribunal was of the view that the extent to which
it protected information in the hands of the Information Commissioner from onwards
disclosure could not be said to be coterminus with the restrictions on disclosure that
arose from the duty of confidentiality on the HPC. Thus it was accepted that there
could potentially be circumstances in which the Information Commissioner would
make onwards disclosure against the wishes of the HPC or the author of that
information (registrant, third party witnesses etc.) This was however unlikely to
happen given that the protection afforded by section 59 was extensive and in some
respects broader than a duty of confidentiality – thus section 59 applies to all

Appeal NumberEA/2007/0116:

information obtained by the Information Commissioner, not just that which has the
quality of confidence. In addition to this, it was noted that the exemptions claimed
by the HPC would in all likelihood apply to the Information Commissioner himself.
In this regard, the Tribunal noted that the examples given of information which
registrants would not want disclosed all fell within the personal data exemption.

46. Most importantly however, the Tribunal reminded itself of the Commissioner’s
responsibilities with regard to the protection of data and privacy, such that
preserving the information’s confidentiality was likely to be an overriding
consideration at least until he had made a decision and the conclusion of any
appeal.

47. It was accepted by the Tribunal that disclosure to the Information Commissioner
might cause a degree of future reticence on the part of registrants in providing
information. On testing the evidence, the Tribunal concluded however, that the
damage to the Process anticipated by the HPC would not be as significant as
feared. Registrants had a self-interest in disclosing a broad range of information at
the early stage – this was, after all, the best way to keep the matter out of the public
domain (i.e.: by virtue of a no case to answer finding). The Tribunal considered
that the HPC was overstating the confidentiality expected by registrants. Not all
registrants received the assurances as to confidentiality and even then, the content
of their observations were subject to partial disclosure to complainants. The
Tribunal noted moreover that registrants were unaware of the fact that HPC on
occasion made disclosures in the public interest e.g.: child protection and police
matters. The reality was that the ‘aura’ of confidence, as Counsel for the HPC put
it, attached to the information provided by registrants, was not as clear or as bright
as contended.

48. The Tribunal was of the view that the HPC would be able to revise its procedures to
ensure that those providing information were accurately forewarned that the HPC’s
dealing with this information would be subject to its duties under FOIA and the DPA.
If registrants enquired further they could be provided with a number of
reassurances:

Appeal NumberEA/2007/0116:

a. that the Information Commissioner has responsibility for data protection and
privacy and is very likely therefore to be required under the DPA to treat the
confidential nature of personal data as an overriding factor;

b. that the exemptions that apply to the HPC would also apply to the
Information Commissioner under any request made to it under FOIA;

c. that the Information Commissioner’s office is subject to a criminal prohibition
against disclosure;

d. as to its Transparency Policy (setting out the information which the
Information Commissioner would not normally disclose, including disputed
information in the course of an investigation or leading up to an appeal)

e. generally its practices with regard to ensuring the security and confidentiality
of information.

49. At paragraph 45 of the FOE decision, a differently constituted Tribunal stated:

“Finally, [it was] contended that……………… public authorities should now have
fundamentally different expectations in respect of the manner in which their
information is liable to be treated.”

The Tribunal considered these words particularly apposite to the current case and
the HPC’s approach to its FOIA responsibilities.

50. Counsel to the Information Commissioner drew the Tribunal’s attention to the
Memorandum of Understanding that exists between the Information Commissioner
and the Ministry of Justice. This includes a number of undertakings as to the way in
which information will be dealt with by the Information Commissioner. The Tribunal
considered whether undertakings such as these, since it was told these represent
normal practise, could be of reassurance to the HPC and its registrants. The
Tribunal recommends that the Information Commissioner considers either entering
into such an MOU with the HPC or as an alternative the drawing up of a policy or
protocol on the provision of information to the Commissioner applicable to all public
authorities. Whilst the Transparency Policy goes someway in this direction, it does

Appeal NumberEA/2007/0116:

not deal fully with the way in which information obtained by the Commissioner in the
normal course of his duties or under an Information Notice will be handled.

51. The Tribunal would have welcomed more assistance from the Information
Commissioner in the way in which this case was defended (for instance, Counsel
for the Information Commissioner could have usefully cross-examined the
witnesses). It understood the Commissioner’s position that even at its highest the
alleged damage to the Process would not outweigh the public importance of his role
in reviewing compliance with FOIA duties and the need therefore to see the
information. The Tribunal had sympathy for this position but considered it important
to assist the HPC’s understanding of certain misplaced aspects of its case. It
hoped that through the appeal process the HPC had realised that some of its
procedures needed revising and that the alleged damage to the Process was not as
bad as anticipated and finally, may be avoided with suitable explanations to
registrants.

52. The Tribunal concurred that in most circumstances the Information Commissioner
would need to see the disputed information and that it would be a very high hurdle
to clear to convince a Tribunal that the Information Commissioner could and should
carry out his functions without sight of the relevant material. This case came
nowhere near that mark. The Tribunal was of the view that the public interest in the
Information Commissioner being able to carry out his regulatory function in the way
intended by Parliament was so important as to outweigh any negative impact from
disclosure under the Information Notice. Thus, it considered that the Information
Commissioner had exercised his discretion correctly and, for the reasons given
above, that the Notice had been in accordance with law.

53. Our decision is unanimous.

Signed

Melanie Carter

Deputy Chairwoman Date 14^th March 2008





Information Tribunal Appeal Number: EA/2007/0116 Information Commissioner’s Ref: FS50150404

Heard at Field House, London, EC4 On 4^th & 7^th March 2008		Decision Promulgated 14^th March 2008

BEFORE

Between	CHAIRWOMAN Melanie Carter and LAY MEMBERS Dr Henry Fitzhugh Rosalind Tatam HEALTH PROFESSIONS COUNCIL and INFORMATION COMMISSIONER		Appellant
Between			Respondent

Representation: For the Appellant: For the Respondent:	William Hoskins Elisa Holmes

1

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	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Health Professions Council v the Information Commissioner [2008] UKIT EA_2007_0116 (14 March 2008) URL: http://www.bailii.org/uk/cases/UKIT/2008/EA_2007_0116.html Cite as: [2008] UKIT EA_2007_0116, [2008] UKIT EA_2007_116



	Appeal NumberEA/2007/0116: Decision The Tribunal upholds the Information Notice dated 1 October 2007 and dismisses the appeal. Reasons for Decision Introduction 1. This appeal arises from an Information Notice issued by the Information Commissioner to the Health Professions Council (HPC) on the 1 October 2007. The Information Notice related to an information request under the Freedom of Information Act 2000 (FOIA) by Ms Sue Lee in a letter dated 1 January 2007. That request was refused by the HPC and Ms Lee applied to the Information Commissioner under section 50 of the FOIA. As part of the Information Commissioner’s investigation, he issued an Information Notice requesting sight of the disputed information which the HPC had refused to disclose to Ms. Lee. The HPC has appealed the Information Notice under section 57(2) of FOIA. 2. The Tribunal noted that the investigation of Ms Lee’s section 50 application has been put on hold pending the determination of this appeal. Hence there is still no resolution of her request for information under FOIA made in January 2007. For this reason the Tribunal had sought to expedite the hearing of this appeal and was grateful to the parties for their observance of what was a relatively tight timescale for bringing the case to hearing. The Tribunal did not call for the disputed information as it was of the view that this case should be decided without regard to the subject matter of the request or the correctness or otherwise of the exemptions claimed. Background 3. The HPC is established under the Health Professions Order 2001 (the 2001 Order) and has responsibility for the regulation of 13 different types of health professionals. Its main functions are set out at article 3(2) of the 2001 Order as:

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	Appeal NumberEA/2007/0116: “…to establish from time to time standards of education, training, conduct and performance for members of the relevant professions and to ensure the maintenance of those standards.” The main objective in exercising its functions is “to safeguard the health and well- being of persons using or needing the services of registrants.” 4. The HPC’s functions include the maintenance of a register of health professionals and a mechanism, called the Fitness to Practise process (the Process) whereby the conduct and performance of registrants may be investigated and called to account. An adverse adjudication on a registrant’s fitness to practise may lead to, amongst other things, a registrant being removed from the register (such that they could not work in their chosen profession) or conditions being attached to the performance of their profession. 5. Members of the public, employers etc. may make allegations to the HPC with regard to the fitness to practise of particular registrants. Such cases are investigated by the HPC and as a preliminary step in the Process a decision will be taken by a Panel of the Investigating Committee (the Investigating Committee) whether there is ‘a case to answer’. Where it is decided that there is not, that will be the end of the case against the registrant. Where the Investigating Committee decides there is case to answer this is referred to a different Committee for a full hearing. The original request for information 6. Ms. Lee made an allegation to the HPC that a particular registrant’s fitness to practise was impaired. This was investigated and papers duly put before the Investigating Committee. The Committee decided that there was no case to answer. Ms. Lee, who was unhappy with this decision, then made a FOIA request in relation to the papers that were put to the Investigating Committee. This was refused by the HPC on the grounds that certain exemptions applied, namely sections 30 (investigations and proceedings conducted by public authorities), 40 (personal data) and 41 (confidentiality).

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	Appeal NumberEA/2007/0116: The application to the Information Commissioner 7. Ms. Lee then made an application under section 50 of FOIA for a decision by the Information Commissioner as to her whether request had been dealt with in accordance with law. As part of his investigation, the Information Commissioner sought to be provided with the disputed information which had not been provided to Ms. Lee. Initially he sought this without recourse to the issuing of an Information Notice. The HPC resisted on the basis that, absent a formal Information Notice, it did not have the power to disclose the information. 8. The HPC set out its concerns in correspondence over the months of July to September 2007 as to the potential damage to the Process were registrants to be aware that information had been passed to the Information Commissioner. 9. The Information Notice was issued on 1 October 2007 and the HPC filed a Notification of Appeal against the Notice on 29 October 2007. The appeal to the Tribunal 10. The HPC’s grounds of appeal have been refined during the course of the proceedings and certain have been dropped. Counsel for the HPC at the hearing set out the appeal on the grounds that the Information Commissioner had either (a) erred in exercising his discretion to issue an Information Notice and/or (b) the Information Notice was not in accordance with the law on the basis that the Commissioner had failed to have regard to relevant matters, namely the way in which the Process would be undermined as a result of the Notice. It was argued that, as registrants believed that the information they provided to HPC at the ‘case to answer’ stage was confidential, the effect of the Information Notice would be to discourage the provision of information at this early stage, for fear of disclosure to the Commissioner and onward disclosure by the Commissioner to the public. Counsel for the HPC accepted at the hearing that the two grounds of appeal were, for practical purposes, identical. The questions for the Tribunal 11. The Tribunal considered: 4



	Appeal NumberEA/2007/0116:

	a. whether the net effect of: i. the practises and procedures of the Information Commissioner; and ii. the prohibition against disclosure under section 59 of the Data Protection Act 1998 (DPA), was a sufficient guarantee of the Information Commissioner keeping the disclosed information confidential to negate or at least substantially reduce the perceived fears of registrants and therefore the purported damage to the Process; b. whether, in the light of the above, the purported damage to the Process was, as argued, sufficiently serious to mean that the Information Commissioner ought to have exercised his discretion differently and not to have issued the Information Notice; c. whether the Information Commissioner had failed to take into account relevant considerations, namely the potential damage to the Process in the exercise of his discretion. Evidence 12. The Tribunal heard evidence from Mr Jonathan Bracken from Bircham Dyson Bell, solicitors for the HPC. Mr Bracken has been involved in the setting up of the HPC, had advised on many of its processes and drafted its rules. 13. Mr Bracken explained to the Tribunal that the HPC had moved away from a punitive disciplinary scheme and had put in its place the Fitness to Practise regime, common to many health profession regulators. The HPC seeks to strike a balance between the regulator’s primary function of public protection and having non- punitive methods of addressing concerns about the competence and conduct of registrants. 14. The Process is in two stages. The first is to investigate the allegation, including taking statements where appropriate. The investigation papers are put before the Investigating Committee which decides in a private meeting, whether there is a

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	Appeal NumberEA/2007/0116: She told the Tribunal that the standard letter referred to at paragraph 18 above was a “carry-over” from an old letter and not in line with the HPC’s current procedures. 22. It was Ms Johnson’s evidence that not all registrants would in fact contact the HPC by phone and she accepted that given this, not all registrants would have been given an assurance as to the confidentiality of the information provided. 23. Ms Johnson was asked why, if the confidentiality of the registrants’ information was considered so important by the HPC, their guidance and standard documentation did not reflect this. She responded that their practice and procedure guidance were living documents and in certain respects in need of revision. She was of the view however that given that the Investigating Committee decision was made in private, a matter made clear to all registrants in their leaflets and letters, they would assume from this that their information would be treated confidentially. 24. Finally, she told the Tribunal that there was a theoretical possibility that fitness to practise information at this early stage could be shared with the competent authorities of other European Union states. In addition, circumstances could arise in which the HPC gave the police a registrant’s information prior to a no case to answer determination. Registrants were not warned of these possible public interest disclosures. 25. The real concern, she said, was the disclosure to the public that may follow a disclosure to the Information Commissioner. In particular, registrants would fear that complainants would thereby have access to the information. The examples given were where the registrant had raised physical or mental health or relationship issues. She accepted however that this information would likely all be personal data such that the Information Commissioner would not be free, on account of the DPA, to make disclosure to third parties. 26. In the light of this Ms. Johnson further accepted that, given the possible applicable exemptions, the Information Commissioner’s own policies on non-disclosure and the operation of section 59 DPA, the registrants’ fears might be said to be misplaced or exaggerated.

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	Appeal NumberEA/2007/0116: unless the disclosure is made with lawful authority.” (2) For the purposes of subsection (1) a disclosure of information is made with lawful authority only if, and to the extent that – (a) the disclosure is made with the consent of the individual or of the person for the time being carrying on the business, (b) …….. (c) the disclosure is made for the purposes of, and is necessary for, the discharge of: (i) any functions under the information Acts, or

	(e) having regard to the rights and freedoms or legitimate interests of any person, the disclosure is necessary in the public interest” Breach of this provision is a criminal offence. 33. He took the Tribunal to paragraph 42 of an earlier case of the Tribunal, Friends of the Earth v Information Commission and DTI (Appeal no. EA/2006/0036)(“the FOE case”), in which it considered the effect of section 59(2)(c) of the DPA: ”If a public authority withheld its consent to publish harmless information that could not be regarded as confidential, in the Tribunal’s view no offence would be committed if the Commissioner or his staff disclosed it. Although the Commissioner decided on balance in this case that disclosure would have been likely to impede the free flow of information, a decision which was in the Tribunal’s view justifiable, an alternative decision was available to him. The Commissioner and his staff should in the Tribunal’s view consider themselves free to strike a responsible balance between the conflicting considerations favouring disclosure or non-disclosure as the facts of each case require. Section 59 is a sanction against unauthorised or reckless breach of

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	Appeal NumberEA/2007/0116: Conclusion 42. The Tribunal noted at the outset that the Information Notice itself did not adequately make clear the matters that the Commissioner had taken into account or the reasons for the need for the Notice. As such it had been necessary to look at the correspondence leading up to the decision to issue the Notice. Inevitably, the letters in question were not as tightly written as a formal document. The Tribunal gave a broad construction of the letter of 31st August 2007 (set out at paragraph 30 above) and concluded that the Information Commissioner had indeed taken into account the alleged damage to the Process. This included the purported damage to the Process that would follow from both disclosure to the Information Commissioner himself and possible onwards transmission to the public. The impugned wording in that letter (underlined and set out in paragraph 30 above) were, in the Tribunal’s view, an indication that he had taken the purported damage into account and represented his conclusions why nevertheless the Notice needed to be issued. 43. The Tribunal recommended that in future cases the Information Commissioner set out in greater detail, as he does for Decision Notices, the matters taken into account and the reasons for the decisions taken. 44. The Tribunal did not accept the HPC’s argument that the Commissioner should have considered asking for just some of the disputed information as it was self evidently the case that he would not know what to call for without having sight of the documents themselves. 45. With regard to section 59 DPA the Tribunal was of the view that the extent to which it protected information in the hands of the Information Commissioner from onwards disclosure could not be said to be coterminus with the restrictions on disclosure that arose from the duty of confidentiality on the HPC. Thus it was accepted that there could potentially be circumstances in which the Information Commissioner would make onwards disclosure against the wishes of the HPC or the author of that information (registrant, third party witnesses etc.) This was however unlikely to happen given that the protection afforded by section 59 was extensive and in some respects broader than a duty of confidentiality – thus section 59 applies to all

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United Kingdom Information Tribunal including the National Security Appeals Panel