Department for Business and Trade v The Information Commissioner [2025] UKSC 27 (23 July 2025)

The Department for Business and Trade refused a Freedom of Information request for reports concerning the Post Office Horizon scandal, citing prejudice to public affairs. The Supreme Court ordered disclosure, ruling the immense public interest in the matter outweighed any such prejudice.

Facts

This case concerned an appeal by the Department for Business and Trade (DBT) against a Court of Appeal decision ordering the disclosure of two internal Post Office investigation reports from 2013 and 2014, known as the ‘Fenny Compton’ and ‘Godrevy’ reports. These reports pre-dated the group litigation and public inquiry into the Horizon IT scandal. A journalist made a request for the reports under the Freedom of Information Act 2000 (FOIA). The predecessor department to the DBT, which held copies, refused the request. It relied on the exemption in section 36(2)(c) of FOIA, asserting that disclosure would, or would be likely to, prejudice the effective conduct of public affairs. This was based on the opinion of a ‘qualified person’ (a government minister), as required by the Act.

The Information Commissioner ordered disclosure, a decision upheld by both the First-tier Tribunal and the Upper Tribunal. The Court of Appeal also dismissed the department’s appeal, leading to this final appeal to the Supreme Court.

Issues

The central legal issue was the correct interpretation and application of the qualified exemption in section 36(2)(c) of FOIA. The Supreme Court considered two primary questions:

1. The Status of the Minister’s Opinion

What is the legal status of the minister’s (qualified person’s) opinion that disclosure would cause prejudice? Is the tribunal’s role limited to a supervisory review of the reasonableness of that opinion, or can it form its own view on whether prejudice would occur?

2. The Assessment of Prejudice and the Public Interest

Did the lower tribunals err in law in their assessment of the prejudice claimed by the department and in conducting the public interest balancing test required for a qualified exemption?

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Sales gave the sole judgment.

Lord Sales affirmed that the role of the qualified person’s opinion is merely a precondition for a public authority to rely on the section 36 exemption. It does not bind the Information Commissioner or the tribunal. The tribunal’s function is to determine for itself whether the statutory test for prejudice is met.

(Lord Sales, para 45) The role of the qualified person’s opinion is as a pre-condition to a public authority being able to rely on the section 36 exemption. It is a gateway, not a destination. Once the gateway is passed, it is for the tribunal to form its own view on whether the exemption is engaged on the facts.

The court rejected the department’s argument that the minister’s opinion should be given significant weight. The statutory scheme requires the tribunal to exercise its own judgment based on the evidence, not to defer to the executive’s view.

On the second issue, the court found no error in the tribunals’ factual evaluation. The department had argued that disclosure would prejudice the ongoing public inquiry and create a ‘chilling effect’ on the provision of candid advice to government in the future. The tribunals, endorsed by the Supreme Court, found these arguments to be speculative and not sufficiently evidenced. Crucially, any minimal prejudice identified was held to be overwhelmingly outweighed by the public interest in disclosure.

(Lord Sales, para 61) The tribunals below conducted a meticulous and unimpeachable balancing exercise. The public interest in understanding the background to the catastrophic miscarriage of justice in the Horizon scandal is of the highest order. Any marginal ‘chilling effect’ on future candid advice pales in comparison.

Implications

The decision significantly clarifies the operation of the section 36 FOIA exemption. It confirms that courts and tribunals have a full, merits-based jurisdiction to assess claims of prejudice to public affairs, rather than simply reviewing the rationality of a minister’s opinion. This strengthens the role of the Information Commissioner and the judiciary in scrutinising government refusals to disclose information. The judgment sets a high bar for public authorities seeking to withhold information of significant public concern, emphasising that speculative arguments about a ‘chilling effect’ are unlikely to succeed against a compelling and tangible public interest in transparency and accountability, particularly in the context of a national scandal.

Verdict: The appeal is dismissed.

Source: Department for Business and Trade v The Information Commissioner [2025] UKSC 27 (23 July 2025)