Key Facts
- •The Jewish Medical Association (JMA) requested the General Medical Council (GMC) to disclose legal advice received on defining antisemitism in complaints against doctors.
- •The GMC refused, citing legal professional privilege (LPP) under section 42 of the Freedom of Information Act (FOIA).
- •The Information Commissioner upheld the GMC's refusal, finding the public interest in maintaining LPP outweighed the public interest in disclosure.
- •The JMA appealed to the First-tier Tribunal (FTT).
Legal Principles
Legal professional privilege (LPP) protects confidential communications between client and lawyer for the dominant purpose of seeking or giving legal advice.
Section 42 FOIA; R v Derby Magistrates Court, ex p B [1996] AC 487
The public interest test under FOIA requires balancing the public interest in maintaining the exemption against the public interest in disclosure. The inherent public interest in non-disclosure of LPP carries significant weight.
Section 2(2)(b) FOIA; DBERR v O’Brien v IC [2009] EWHC 164 QB; Corderoy and Ahmed v Information Commissioner [2017] UKUT 495 (AAC)
The public interest balance is assessed as it stood at the date of the public authority’s initial response.
Montague v Information Commissioner [2022] UKUT 104 (AAC)
Outcomes
The FTT dismissed the JMA's appeal.
The FTT agreed that LPP applied and that the public interest in maintaining the privilege outweighed the public interest in disclosure. While acknowledging the public interest in transparency and accountability, particularly concerning the GMC's handling of antisemitism complaints, the FTT found the JMA's arguments for disclosure insufficient to outweigh the strong public interest in protecting LPP. The FTT also noted that much of the requested advice related to individual complaints and thus fell outside the scope of the request.