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

The Information Commissioner appealed against the cumulative approach to assessing qualified exemptions under the Freedom of Information Act 2000. The Supreme Court held that where multiple qualified exemptions apply to requested information, public interest factors against disclosure may be aggregated rather than assessed independently for each exemption.

Facts

In November 2017, journalist Brendan Montague requested information from the Department for International Trade about trade working groups established to prepare for post-Brexit arrangements. The Department disclosed some information but withheld agendas and minutes of meetings, relying on two qualified exemptions under the Freedom of Information Act 2000 (FOIA): section 27 (prejudice to international relations) and section 35 (formulation of government policy).

The Information Commissioner upheld the Department’s refusal. On appeal, the First-tier Tribunal raised of its own motion whether qualified exemptions could be assessed cumulatively rather than independently. The Upper Tribunal held the independent approach was correct, but the Court of Appeal reversed this, holding that cumulative assessment was permissible.

Issues

Principal Issue

Where information triggers more than one qualified exemption under FOIA, should the public interest assessment under section 2(2)(b) be conducted independently for each exemption, or can the public interest factors against disclosure across all applicable exemptions be aggregated cumulatively?

Judgment

The Supreme Court dismissed the appeal by a 3-2 majority (Lord Lloyd-Jones, Lord Sales, and Lord Burrows; Lord Richards and Sir Declan Morgan dissenting).

Majority Reasoning

The majority held that the cumulative approach was correct. Lord Sales and Lord Burrows identified several textual indicators in section 2(2)(b) supporting this interpretation:

• The phrase ‘any provision of Part II’ naturally refers to one or more provisions
• ‘Maintaining the exemption’ refers to the exempt status of the information rather than a particular provision
• ‘The public interest in maintaining the exemption’ naturally encompasses all relevant provisions
• The opening words ‘in all the circumstances of the case’ indicate all applicable exemptions should be considered

The majority reasoned that since section 2(2)(b) concerns a public interest assessment, it is natural to take into account all specified public interest reasons for non-disclosure under identified qualified exemptions, enabling a more complete and accurate picture of the public interest.

Dissenting Judgment

Lord Richards and Sir Declan Morgan would have allowed the appeal. They emphasised that the statutory language, particularly ‘the provision’ in section 2(1), focuses on individual exemptions assessed separately. They noted the absence of any external aids supporting either interpretation and warned that aggregation would undermine the transparency and accountability purposes of section 17 of FOIA.

Implications

This judgment clarifies that public authorities, the Information Commissioner, and tribunals may aggregate public interest factors across multiple qualified exemptions when determining whether to disclose information under FOIA. This approach simplifies the balancing exercise by avoiding the need to assess each exemption in isolation. The decision has significant implications for freedom of information practice, potentially making it easier for public authorities to justify non-disclosure where multiple qualified exemptions apply but none individually outweighs the public interest in disclosure.

Verdict: Appeal dismissed. The cumulative approach to assessing qualified exemptions under section 2(2)(b) of the Freedom of Information Act 2000 is correct, permitting aggregation of public interest factors against disclosure across multiple applicable exemptions.

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