Records Have Been Deleted – GDC’s Response To FOI Internal Review Request
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- Published: Wednesday, 08 September 2021 08:39
- Written by Chris Tapper
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The ‘transparency’ of the General Dental Council has once again been called into question after the regulator revealed the results of an internal review into its response to a Freedom of Information Request.
The original FOI request came from GDP Dr Dominic O’Hooley, who was seeking information about the GDC’s tendering process when engaging private investigators.
The GDC caused controversy in April, when the regulator admitted to Dental Protection that it had 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, as well as costs.
The GDC instructed an under-guise operation creating a fictitious scenario with two private investigators posing as relatives of “Evelyn”, an elderly relative who needed dentures but was too ill to attend in person, in 2016.
The investigators acting for the GDC were said to have been attempting to induce the clinical dental technician to acting out of his scope of practice.
In April, Raj Rattan, Dental Director at Dental Protection, said “The GDC targeting its own registrants without a sufficiently justified cause is extremely concerning for dentists.”
“The use of an entirely contrived scenario about a sick pensioner in very difficult circumstances was designed to trigger an emotional response and lure a registrant into acting outside of their scope. This is hardly an ordinary opportunity for wrongdoing, and it is unfair and invasive.”
The technician’s case caused widespread outrage and an 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.
In July, GDPUK reported that the GDC had used the Freedom of Information Act to exempt itself from answering a question from Dr O’Hooley on the details surrounding the GDC’s process for the shortlisting of companies providing private investigatory services.
The GDC said that release of the information requested by Dr O’Hooley in his original FOI request would “Be likely to prejudice the commercial interests of the GDC.”
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 replied “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.”
In his request for an internal review, Dr O’Hooley wrote “It is not plausible that a public body tendering process would not be liable for future FOI and to this, it is not plausible that the GDC have such a paucity of information on said process.”
“Regarding withholding of information as prejudicial to future tendering processes, it is simply facile to expect the public to accept this level of opacity from an organisation that not only expects accurate record keeping from registrants, but that has publicly committed itself to improved transparency.”
In its reply, the GDC confirmed that the contract for private investigatory work was awarded to Invicta Investigation Limited.
Legal and Governance Executive Director Lisa-Marie Williams wrote “I apologise for the oversight that resulted in us not disclosing the information previously.”
The GDC confirmed that it was unable to find any other information relevant to Dr O’Hooley’s request.
Ms Williams wrote “Many of our records from that time have been deleted in accordance with our records retention schedule.”
“This states that unsuccessful tender documents are only retained for two years and we believe documents relating to the tender process would have been deleted at the same time.”
The GDC said the tender would have been initiated by the regulator’s Fitness to Practice division and that no senior members of staff from the FtP division were still working at the GDC.
“The majority of their files would have been deleted when they left the organisation.”
The GDC said that a search of Council records “Found no reference to this tender.”
The GDC revealed there was one possible source of information that might contain information related to Dr O’Hooley’s request – “116 boxes of files in our archives that are not indexed.”
The GDC said there was a small possibility of the boxes containing relevant information, but the review of the boxes would require a manual search of the paper records.
“As we estimate this would take over 38 hours, it exceeds the cost and time limits set by section 12 of the FOA Act (i.e. £450 or 18 staff hours).”
“I have examined the weighting model and have decided to disclose a redacted version as it is in the public interest to show how GDC seeks best value for money,” the GDC said.
Notably, the GDC’s response was not able to be publicly viewed on the What Do They Know website, being presented to Dr O’Hooley in files which were limited in time and number.
The GDC generally confirmed its original position with regard to Dr O’Hooley’s first FOI request.
It’s currently not clear whether Dr O’Hooley will appeal to the Information Commissioner.
In August 2020, the Leeds-based dentist complained to the ICO’s office 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 during the first wave of the coronavirus pandemic.
The regulator was directed to comply with the ICO office’s decision, which meant the GDC should release a relevant email from chair Dr William Moyes to staff.
Had the regulator failed to comply with the ICO office’s decision notice, it would have enabled the Information Commissioner to make written certification of the fact to the High Court, which could subsequently have been dealt with as contempt of court.
But not long before the ICO’s deadline for compliance, GDPUK was told by a GDC spokesperson that the regulator had decided to appeal the ICO’s decision notice.
The GDC representative told a GDPUK reporter at the time “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 is going through the HM Courts and Tribunals Service.
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