Aaalamani, R (on the application of) v General Medical Council

The Data Protection Act 1998 gives domestic effect to the permitted restrictions in Article 13 of the data-protection directive. Its exemptions are not incompatible with that provision. Legal professional privilege, qualifying third-party information, examination questions and candidates’ recorded examination answers may therefore restrict disclosure where the statutory conditions apply. A general question bank does not constitute personal data relating to the applicant. Data-protection disclosure rights are distinct from disclosure required for the fair conduct of separate litigation under Article 6 of the European Convention on Human Rights.

The claimant sought disclosure from the General Medical Council of documents relating to professional-competence proceedings under the data-protection directive and the Data Protection Act 1998. The GMC had disclosed extensive material and accepted that further documents would be provided. It withheld or limited other material, including legally privileged documents, third-party information, examination questions and answers, and material concerning an alleged examination recording.

The central issues were whether the domestic statutory exemptions were compatible with Article 13 of the directive and whether the particular documents fell within those exemptions. The claimant also relied on the need to defend separate proceedings.

1. Disclosure application dismissed. The material the GMC was required to provide under the Data Protection Act 1998 had, on the information before the court, been provided or was to be provided.
2. Article 13 of the directive sets out general categories in which member states may restrict data-protection obligations and rights. The domestic legislation gives practical content to those general provisions. The court rejected the submission that the Act was irrelevant or that its exemptions were incompatible with Article 13.
3. Documents protected by legal professional privilege were exempt under Schedule 7, paragraph 10 of the Act.
4. Section 7(4) governed information relating to an identifiable third party. Disclosure was not required without consent unless it was reasonable in all the circumstances to disclose without consent. Information could be supplied in a form concealing the identities of informants.
5. The general bank of performance-test questions was not personal data relating to the claimant. It was also distinctly arguable that section 31(1) provided an additional basis for withholding it.
6. The claimant’s answers in professional tests were personal data, even if the answers might identify particular questions. They were nevertheless exempt from section 7 by Schedule 7, paragraph 9, which applied to personal data recorded by candidates during an academic, professional or other examination. The court considered that any videotape, if one existed, would likely fall into the same category, although no specific argument on that issue had been heard.
7. The judgment did not determine what documents might be disclosable in separate court proceedings. Article 6 of the European Convention on Human Rights raised distinct issues from those arising under the Act and the directive.
8. The other three Administrative Court proceedings were stayed pending the Privy Council hearing, with liberty to the claimant to apply on 14 days’ notice. There was no order as to costs.

First-instance decision. The judgment records other pending proceedings and an intended Privy Council hearing, but no appellate history for this application.