Tribunal Upholds Exemption for Legal Advice in FOIA Case, Stresses Public Interest Test Importance

Citation: [2024] UKFTT 61 (GRC)
Judgment on

Introduction

In the First-tier Tribunal case of Jewish Medical Association (UK) v The Information Commissioner & Anor [2024] UKFTT 61 (GRC), the tribunal analyzed legal principles surrounding the Freedom of Information Act 2000 (FOIA), particularly exemptions based on Legal Professional Privilege (LPP), and the public interest test applied in the context of section 42(1) FOIA. This article critically examines the decision, highlighting how tribunal members applied existing legal principles to determine whether the withheld legal advice should be disclosed.

Key Facts

The Jewish Medical Association (UK) (Appellant) sought disclosure of legal advice received by the General Medical Council (GMC) concerning definitions to use when responding to complaints of antisemitism by UK registered doctors. The GMC refused disclosure, invoking section 42 FOIA, which protects information subject to LPP. The Appellant contended that the Information Commissioner’s decision to uphold GMC’s application of section 42 FOIA was incorrect and lacked adequate reasoning in the public interest test. The crux of the dispute centered on whether the public interest in disclosing the advice outweighed the interest in maintaining the exemption.

The tribunal’s decision rested on several established legal principles:

  1. Legal Professional Privilege (LPP): Identified in R v Derby Magistrates Court, ex p B [1996] AC 487, the court underscored the necessity for clients to consult lawyers in confidence, creating a foundational principle for LPP. It shapes the understanding that LPP is more than an evidentiary rule; it is essential to the administration of justice.

  2. Section 42 FOIA - Exemption for LPP: This section exempts information from disclosure if LPP could be claimed in legal proceedings. The tribunal confirmed the Information Commissioner’s finding that the exemption applied because the withheld information was a confidential communication for legal advice purposes.

  3. Public Interest Test: Section 42 FOIA is a qualified exemption, meaning that even if LPP applies, there needs to be a balancing of the public interest in disclosure against the interest in maintaining the exemption. The seminal guidance in DBERR v O’Brien v IC [2009] EWHC 164 QB and Corderoy and Ahmed v Information Commissioner and Cabinet Office [2017] UKUT 495 (AAC) requires the authority to demonstrate that the weight of maintaining the exemption prevails over the public interest in disclosure.

  4. Relativity of Public Impact: The tribunal disputed the notion that the number of individuals affected by disclosure reduces the public interest in the information, arguing that high public interest exists where fundamental rights are concerned, even for a few.

  5. Disclosure of Live Issues: The tribunal stated that advice on ongoing matters carries additional weight against disclosure to avoid prejudicing the ability of a public authority to defend its legal position.

  6. Transparency and Accountability: There is an overarching public interest in understanding how public authorities make decisions, particularly concerning controversial issues. This principle was considered against the built-in public interest of protecting LPP.

  7. Case Precedents: The tribunal aligned its reasoning with precedents on the application of the public interest test, such as Montague v Information Commissioner and the Department for International Trade [2022] UKUT 104 (AAC), which emphasized assessment of the public interest balance at the initial response date.

Outcomes

After carefully considering both sides of the public interest test, the tribunal held that the Commissioner was correct in deciding that the public interest in maintaining the exemption outweighed that of disclosure. It dismissed the appeal, underpinning its decision on the substantial in-built public interest against the disclosure of information covered by LPP and the sufficiency of public debate on the issue without the need for the legal advice’s content.

Conclusion

The case effectively illustrates the robust nature of LPP as an exemption under FOIA and the weight it carries in the public interest balancing exercise. The tribunal affirmed that the public interest in maintaining LPP’s safeguarding of confidential legal advice generally prevails over disclosure, unless particularly compelling counterarguments are presented. This decision provides legal professionals with a clear understanding of the significance attributed to LPP and the parameters for the public interest test under FOIA.

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