GR-N GIA 0433 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 10 August 2015 |
| Neutral Citation | 2015 UKUT 449 AAC |
| Subject Matter | Information rights |
| Respondent | (1) Information Commissioner, (2) Nursing and Midwifery Council |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 0433 2014 |
| Appellant | GR-N |
Decisions of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference EA/2013/0163, made on 1 November 2013, did not involve the making of an error on a point of law.
GIA/1626/2014 (Mrs Foster)As the decision of the First-tier Tribunal (made on 13 January 2014 under reference EA/2013/0176) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel. That panel must undertake a complete reconsideration of the issues that are raised by the appeal in accordance with the analysis in this decision.
Reasons for Decision
A. Abbreviations DPA: Data Protection Act 1998
FOIA: Freedom of Information Act 2000
GMC: General Medical Council
NCND: neither confirm nor deny
NMC: Nursing and Midwifery Council
- I held an oral hearing of these appeals on 30 June 2015. Mrs Rodriguez-Noza and Mrs Foster attended; each spoke on her own behalf, supported by her husband. Robin Hopkins of counsel represented the Information Commissioner. Timothy Pitt-Payne QC represented the NMC. I am grateful to all of them for their written and oral submissions
- The same issue arises in both appeals. It is this. A complaint is made to the NMC, which it rejects as without foundation. The person who made the complaint then asks for information that was before the NMC when it made its decision. How should the NMC respond? Should it give a NCND decision or should it confirm that it holds the information, but argue that it is exempt
- I emphasise that the request was not to disclose information that there had been a complaint. This was already known, as the person making the request was the person who made the complaint.
- This case arises from the inadequate support that Mrs Rodriquez- Noza feels that she received from the Abertawe Bro Morgannwg University Health Board when she was employed the Board as a nurse. She brought proceedings against her employer in the employment tribunal and, eventually, in the Employment Appeal Tribunal. She also made a complaint to Unison, the trade union. What concerns me in this case is her complaint to the NMC about the conduct of the six senior nurses who were her line managers. That complaint was made on 1 May 2012. The NMC decided that there was no basis for a complaint in respect of the nurses’ fitness to practice; employment issues were outside its remit, as it explained in its letters of 9 and 28 May 2012. Mrs Rodriguez-Noza wrote a letter on 21 November 2012, which was treated as a request under FOIA for
a copy of comments or response made by all of the people named in my complaint.
The NMC made a NCND response, which it confirmed on internal review. On Mrs Rodriquez-Noza’s complaint, the Information Commissioner decided that this response was in accordance with Part I of FOIA. On Mrs Rodriquez-Noza’s appeal, the Information Commissioner applied for her appeal to be struck out. The First-tier Tribunal did so on the ground that ‘it is inevitable that the appeal must fail.’ I gave her permission to appeal to the Upper Tribunal, following an oral hearing before me in Cardiff. Having done so, I joined the NMC, which had not been a party before the First-tier Tribunal.
Mrs Foster- This case arises from the sad death of Mrs Foster’s son, Gary, on 14 October 2007. He had testicular cancer and took part in a research trial. In the course of that trial, he was administered an excess dosage of Bleomycin over several weeks, which eventually led to his death on 14 October 2007. This led to an inquest, a civil action against the hospital, a referral of two doctors to the GMC, and a referral of one of the nurses to the NMC.
- At the hearing, there was some uncertainty about the time when this referral occurred. Mrs Foster was sure that she had not made a complaint until after 30 August 2012, whereas the NMC gave the date as January 2011. Nothing turns on the precise date, but Mr Pitt-Payne agreed to clarify this and provided me with detailed evidence. On 5 January 2011, the investigating officer of the GMC referred the case to the NMC, which wrote to Mrs Foster, who wrote setting out her concerns on 17 January 2011. That is the time when the case first came to the NMC’s attention.
- The NMC investigated and decided that the nurse had no case to answer. Mrs Foster was dissatisfied with the outcome and made a request under FOIA on 8 December 2012. She wrote:
Please can you forward to us the names of the five witnesses interviewed at the Investigating Committee hearing which took place on 29 August 2012.
Also we would appreciate a copy of all the case material which we have not received as yet.
The NMC made a NCND response by letter dated 11 January 2013. At Mrs Foster’s request, the NMC carried out an internal review and confirmed its decision by letter dated 13 February 2013.
- On Mrs Foster’s complaint to the Information Commissioner, he decided that the NCND response was in accordance with Part I of FOIA. On Mrs Foster’s appeal, the First-tier Tribunal decided that the NMC was obliged to confirm or deny whether it held the information requested and, if it did, whether disclosure should be made. Mrs Foster told the tribunal that she was not interested in knowing the names of the witnesses; she only wished to be sure that they were not part of the team involved in the trial.
- I gave the Information Commissioner permission to appeal to the Upper Tribunal. Having done so, I joined the NMC, which had not been a party before the First-tier Tribunal.
- The basic right to information is conferred by section 1(1):
1 General right of access to information held by public authoritiesI.
(1) Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.
- The authority to give a NCND response derives from section 2 and, in these cases, section 40(5):
2 Effect of the exemptions in Part III.
(1) Where any provision of Part II states that the duty to confirm or deny does not arise in relation to any information, the effect of the provision is that where either—
(a) the provision confers absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information,
section 1(1)(a) does not apply.
(3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption-
…
(f) in section 40-
(i) subsection (1), and
(ii) subsection (2) so far as relating to cases where the first condition referred to in that subsection is satisfied by virtue of subsection (3)(a)(i) or (b) of that section,
40 Personal information
(1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.
(2) Any information to which a request for information relates is also exempt information if—
(a) it constitutes personal data which do not fall within subsection (1), and
(b) either the first or the second condition below is satisfied.
(3) The first condition is—
(a) in a case where the...
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