Transparency: GDC Shields Behind Freedom Of Information Act Again

Transparency: GDC Shields Behind Freedom Of Information Act Again

The General Dental Council is facing further calls for transparency, following its latest response to a Freedom of Information request regarding the regulator’s use of private investigators.

The GDC has used the Freedom of Information Act to exempt itself from answering a question on the details surrounding the GDC’s process for the shortlisting of companies providing private investigatory services.

The GDC has faced much criticism from members of the profession and professional organisations recently, for its use of private investigators in under-guise operations.

In April 2021, it was reported that the General Dental Council had admitted to Dental Protection that it acted  ‘unlawfully in undertaking an under-guise operation without reasonable justification.’

As a result of Dental Protection’s successful defence of their member, the GDC had to pay an undisclosed sum of damages to a clinical dental technician who was subjected to an under-guise operation.

It was reported that two private investigators posed as relatives of an ill fictitious relative, in an attempt to induce a clinical dental technician to act outside his scope of practice.

The technician’s case caused outrage and a FOI request revealed that between 2013 and 2016, the GDC spent £42,050 on private investigators.

Between 2017 and 2019, the GDC spent £17,208 on investigators, totalling £59,258.85 between 2013 and 2019.

The GDC’s latest claim to be exempt from answering an FOI request said that release of the information requested by dentist Dr Dominic O’Hooley, would “Be likely to prejudice the commercial interests of the GDC.”

Although the GDC granted Dr O’Hooley’s request to list the investigation companies, service providers or individuals who submitted tenders to the GDC for their services, the regulator cited Section 43 (2) of the Act to exempt itself from the disclosure of information the dentist requested.

Dr O’Hooley asked for “All written details of the shortlisting of these tenders, specifically, who shortlisted and who signed off the short list?”

But the GDC said “The GDC does not hold any information on who shortlisted or signed off the short list.”  It said that the information which fell into the scope of the request was an “overall weighting model from the tendering exercise.”

The GDC said it was withholding the information under an exemption clause.

The GDC’s FOI response 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.”

“Section 43 is a qualified exemption which requires a public interest test.”

“Reasons favouring disclosure include an inherent public interest in ensuring transparency about how the GDC spends its revenue and seeks best value for money. It would also show that the procurement process in question was undertaken fairly and transparently.”

“However, arguments against releasing this information include disclosure of the information would be likely to affect future tendering exercises. Companies would be less likely to submit tenders if they felt the evaluation summary would be released into the public domain. This would be likely to limit the procurement options for the GDC in future and undermine efforts to achieve best value for money.”

“Disclosing this information publicly would be likely to risk the GDC’s procurement process by making it known the type of application that would score highly. The information on the evaluation summary is limited. It is not clear how the evaluation has been carried out and cannot be validated in terms of accuracy as there are no comments included in the evaluation. This may lead to bidders having advanced knowledge of what may be flawed information. This in turn may lead to the GDC awarding future contracts to less able firms. Although the tendering process in question was carried out seven years ago, the GDC currently uses a similar process when awarding contracts.”

“We therefore consider the balance of public interest weighs in favour of withholding the information under Section 43 (2).”

The GDC replied in May that it was unable to answer a previous FOI request by Dr O’Hooley. The GDC said it couldn’t identify the actual date when the GDC first started to undertake under-guise investigations because it would require a manual search of paper records prior to 2013.

The GDC said “We estimate there are approximately 3,000 boxes in offsite storage which may hold this information. A manual search of this information to determine if this information is held would greatly exceed the cost and time limits set by Section 12 of the FOI Act (£450 or 18 staff hours). We are therefore unable to provide this information.”

In June the GDC wrote “We agree that transparency is important and that there should be a duty on regulators to act transparently,” as part of its response to the Department of Health and Social Care’s consultation ‘Regulating healthcare professionals, protecting the public.’  

Despite that statement, the GDC decided last month to appeal against a demand from the Information Commissioner, to reveal the contents of an email relating to the regulator’s decision to make controversial top-up furlough payments to its staff during the first wave of the pandemic.

The Information Commissioner’s Office (ICO) had originally instructed the GDC to disclose a copy of an email sent by the GDC Chair Dr Bill Moyes to colleagues on 27th April 2020. 

In that instance, the GDC originally withheld requested information, citing on that occasion, section 36 of the Freedom of Information Act to do so.

The decision by the ICO’s office again followed the hard work of Leeds-based Dr O’Hooley, who had been attempting to get straight answers out of the GDC since the late Spring of 2020 with Freedom of Information requests.

Dr O’Hooley complained to the ICO’s office in August 2020 about the regulator’s handling of his request for further information on the GDC’s controversial decision to top up the salaries of some of its staff.

Had the regulator failed by the regulator to comply with the ICO office’s decision notice, it would have enabled the Information Commissioner, Elizabeth Denham, to make written certification of the fact to the High Court, which could subsequently have been dealt with as contempt of court.

But GDPUK was told by a GDC spokesperson that the regulator has decided to appeal the ICO’s decision notice.

The GDC representative told a GDPUK reporter “The ICO decision raises important issues. We have therefore appealed the decision and requested a hearing.”

The GDC appeal against the ICO’s decision notice will go through the HM Courts and Tribunals Service.

GDPUK understands Dr O’Hooley will be requesting an internal review by the GDC, into his FOI requests regarding the regulator’s use of private investigators.

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