The First-tier Tribunal has upheld a decision of the Information Commissioner upholding a decision by the GMC to refuse a FOI disclosure on legal advice.
In Jewish Medical Association (UK) v Information Commissioner & Anor  UKFTT 61 (GRC) (21 January 2024), the Association requested the General Medical Council (GMC) to disclose the legal advice that it received on the matter of definition(s) to be used by the GMC in response to allegations of antisemitism by UK registered doctors. Specifically, the requested:
“…for sight in full of the Legal advice that was both requested and received on the matter of the definition/s to be used by the GMC in response to allegations of antisemitism by UK registered doctors.”
The GMC responded refusing to disclose the requested information, citing legal professional privilege (LPP).
A complaint to the Information Commissioner was turned down, saying, in summary, they were:
satisfied that it is a confidential communication between client and lawyer for the dominant purpose of seeking and giving of legal advice. It falls within the definition of advice privilege and is therefore subject to LPP.
Therefore, the Commissioner decided that the public interest in favour of disclosure was outweighed by the public interest in favour of maintaining the exemption and that GMC had correctly applied section 42(1) FOIA.
The Association appealed, arguing that the commissioner’s decision was wrong and not in accordance with the law, inter alia because:
(1) Other than recording that the Commissioner “took note” of JMA’s arguments, it fails to consider those arguments.
(2) To the extent that the Commissioner did take note of JMA’s arguments, the Decision Notice does not give adequate reasons for finding that the balance of public interest fell in favour of maintaining the exemption: paragraphs 16-18 go little further than stating points of general principle in relation to FOIA, and the section 42 exemption.
Recorder Stephen Cragg KC said in his judgement:
“…the central question in this case is whether the Commissioner was correct to find that the public interest in relation to information covered by LPP favoured the withholding rather than the disclosure of those documents.”
“We accept that the issue to which the legal advice refers is still very much a live one, which will attract additional weight. Disclosure of legal advice could have a significant prejudicial impact on the ability of the GMC to defend its legal position if challenged.
“In relation to public interest factors in favour of disclosure, there is a clear public interest in knowing the content of legal advice obtained by the GMC in relation to controversial issues, and disclosure would support transparency and accountability. We also accept that there is a public interest in disclosure of legal advice to the JMA given the specific role that the JMA has played in referring complaints to the GMC. However, in relation to this latter we must also bear in mind that disclosure to the Appellant would also mean disclosure to the world at large, as there would be no restrictions placed on the JMA as to how it used the information once disclosed.
“In this case, we do not support the Commissioner’s approach that, because relatively few people may be affected by the disclosure of the information, then this in some way diminishes the public interest in disclosure. In our view there can be high public interest where the information in question may impact on the fundamental rights of even a few people.”
Ultimately, however, he ruled in favour of the Commissioner’s ruling saying:
“We recognise that there may be cases where the public interest in disclosure will outweigh the in-built public interest in protecting LPP, and that s42 FOIA does not provide for a blanket exemption. However, there is a strong element of public interest built into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest.
“However, in our view this is not one of those cases. Although the Appellant has explained why it is of the view that there is a strong public interest in disclosure, it has not made submissions as to why that public interest is strong enough to outweigh the built-in public interest against disclosure where LPP applies. In essence, the Appellant’s public interest submissions amount to a call for disclosure to inform the debate in relation to the definition adopted by the GMC in relation to antisemitism, and in our view that is a debate which can happen without disclosure of the legal advice sought.
“In our view the Commissioner was correct to find that the balance of public interest lies in withholding the information and protecting the GMC’s ability to obtain free, frank and high quality legal advice without the fear of premature disclosure.”
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