B v The General Medical Council

In a mixed personal-data case, section 7(4) of the Data Protection Act 1998 requires an evaluative balance of all the circumstances. There is no substantive presumption or threshold favouring either the requesting data subject or the objecting data subject. Only if the competing considerations are in exact equilibrium does a weak residual presumption against disclosure arise.

A litigation motive does not invalidate a subject access request or ordinarily reduce the requester’s protected interest in disclosure. It may be relevant in an exceptional case. The data controller is the primary decision-maker and has a wide margin in assessing relevant factors and their weight. A court should not substitute its own view if the controller’s assessment that disclosure is reasonable was lawful and rational.

P complained to the General Medical Council about Dr B’s treatment. The GMC obtained an independent expert report, decided to take no further action, and gave P a summary of the report. P then made a subject access request for the full report. It was accepted that the report comprised the mixed personal data of P and Dr B.

The GMC decided that disclosure was reasonable under section 7(4) of the Data Protection Act 1998. Dr B obtained an injunction from Soole J restraining disclosure: [2016] EWHC 2331 (QB). The GMC appealed. The central issues were whether mixed data attracted a presumption against disclosure, the relevance of P’s possible litigation motive, and the proper judicial approach to the GMC’s balancing decision.

1. Appeal allowed by majority. Lord Justice Sales, with whom Lady Justice Arden agreed, held that the GMC’s decision to disclose the expert report was lawful. Lord Justice Irwin would have dismissed the appeal.

2. Section 7(4) of the Data Protection Act 1998 required the GMC to decide whether disclosure of mixed personal data without Dr B’s consent was reasonable in all the circumstances. The balancing exercise did not begin with a substantive presumption in favour of the objecting data subject. The observation in Durant v Financial Services Authority [2003] EWCA Civ 1746 suggesting such a starting point was not part of that decision’s ratio and was wrong. At most, where all material considerations were exactly balanced, the statutory structure supplied a weak residual tie-breaker against disclosure.

3. P had a legitimate data-protection interest in checking the accuracy and completeness of the personal data used by the GMC and its expert when deciding not to pursue his complaint. Disclosure could also assist him to assess whether to seek a review under the General Medical Council (Fitness to Practise) Rules 2004. A possible wish to use information in litigation neither invalidated the request nor normally diminished that legitimate interest. It was not necessary for P first to seek disclosure under CPR Part 31.

4. The GMC had considered Dr B’s objections, including his concern about litigation, and was entitled rationally to give them limited weight. It could regard the additional intrusion into Dr B’s privacy, beyond the summary already supplied, as modest. There was no evidence that P proposed improper publication or dissemination.

5. The GMC was the primary decision-maker. In the absence of an unreasonable assessment, the judge should not have substituted his own view of the relevant considerations and their weight. The injunction was therefore set aside and disclosure could proceed.

• Court of Appeal (Civil Division): allowed the GMC’s appeal and held that its decision to disclose the mixed personal data was lawful: [2018] EWCA Civ 1497.
• High Court, Queen’s Bench Division: Soole J granted an injunction restraining the GMC from disclosing the expert report: [2016] EWHC 2331 (QB).