Supreme Court Clarifies The Public Interest Test Under The Freedom Of Information Act 2000

In Department for Business and Trade v The Information Commissioner [2025] UKSC 27 the Supreme Court considered whether multiple qualified exemptions should be assessed cumulatively or independently, for the purpose of the public interest balancing test in the Freedom of Information Act 2000 (FOIA). Judicial examination of FOIA very rarely reaches this level, and the decision is made even more notable by dissenting views being expressed by two judges.

Key points

• The judgment considers the correct statutory interpretation of FOIA and will affect how public authorities, the Information Commissioner (IC) and tribunals assess multiple qualified exemptions when considering the public interest assessment under sections 2(1)(b) and 2(2)(b) of FOIA.
• Multiple qualified exemptions should be assessed cumulatively, rather than independently (without regard to each other), when deciding whether to confirm or deny that information is held and/or disclose it under FOIA.
• While the majority view was that a cumulative approach will be more workable in practice and avoid a distorted public interest balancing exercise, the dissenting judges suggested that this could lead to reduced transparency and accountability from public authorities in relation to information requests.

Background

FOIA created rights of access to information held by public authorities, including (i) a right to be informed in writing of whether the requested information is held by a public authority per section 1(1)(a) (which correlates to the "duty to confirm or deny"); and (ii) if so, a right to have that information communicated per section 1(1)(b) (effectively the "duty to disclose"). The exemptions relating to such rights are listed in Part II of FOIA and are either absolute or qualified. In the context of the duty to disclose, an absolute exemption means that information does not need to be disclosed, whereas a qualified exemption means that information may be withheld only if the public interest in maintaining the exemption outweighs the public interest in disclosure.

The case involved a FOIA request by a journalist for information on trade working groups who were tasked with examining post-Brexit arrangements. The Department for Business and Trade (DBT) refused to disclose information by relying on qualified exemptions relating to prejudice to international relations and the formulation of government policy in sections 27 and 35 of FOIA, resulting in the individual lodging a complaint with the IC and subsequently appealing through the tribunal and court system.

While the IC upheld the DBT's decision not to disclose information, its position was that where there are multiple qualified exemptions, each should be assessed independently. As part of its submissions, the IC argued that a cumulative approach would lead to greater non-disclosure of information which would be contrary to the purpose of the statute and difficult to operate.

Conversely, the DBT argued that the exemptions should be assessed cumulatively so that the evaluation reflects all public interest factors for and against disclosure holistically, which it submitted is straightforward to apply in practice. The DBT suggested that Parliament would have expected all the relevant public interest aspects in the applicable provisions of Part II to be considered when conducting the balancing exercise such that the overall public interest is taken into account.

In practice the issue is important in any situation where, looking at each relevant exemption independently, the public interest in maintaining the exemption does not outweigh the public interest in disclosure of the information, but looking at all the relevant exemptions together, the public interest factors taken together do outweigh the public interest in disclosure.

Judgment

Majority judgment

A majority of the court ultimately favoured the DBT's interpretation and found that section 2(2)(b) permits the public interest recognised in two or more provisions of Part II to be aggregated in determining whether the public interest in maintaining the exemption outweighs the public interest in disclosure. The court considered this primarily to be an issue of statutory interpretation and found various textual indications in the language of the provision preferring a cumulative approach. The court described it as a "natural inference" that all public interest reasons for non-disclosure are considered, otherwise a public authority is disregarding relevant considerations which have been listed in FOIA as reasons for non-disclosure. It is not plausible to infer that Parliament's objective was to disregard some aspects of the public interest which are applicable.

The court disagreed with the IC's submission that the cumulative approach is more difficult to apply and took the view that it will be easier for those conducting the public interest balancing exercise to be able to consider all the relevant factors. The cumulative approach will also save public authorities, the IC and tribunals the trouble of separating out various exemptions and giving them distinct weightings, which is difficult due to the overlapping nature of many of the exemptions. Further, the court concluded that an independent approach would lead to a distorted and inaccurate public interest balancing exercise and could give rise to the potential for arguments at every level of assessment.

Although this case related to the duty to disclose specifically, the court was clear that a consistent interpretation also applied to the duty to confirm or deny.

The judgment noted in passing that a similar conclusion had been reached by both the Supreme Court and the CJEU in relation to the Environmental Information Regulations 2004 (SI 2004/339), although this was obviously not a determinative factor when interpreting FOIA.

Dissenting opinion

In their dissent, Lord Richards and Sir Declan Morgan took the view that an independent approach is correct. They considered that an independent approach would keep the decision-making process more transparent, hold public authorities accountable and reduce the risk of decision-makers taking a broad view of the need to disclose rather than weighing individual items to assess the overall balance. The dissenting judges highlighted that there is no support outside of the actual FOIA terms (eg in any external aids to interpretation) for concluding that Parliament intended for separate public interest factors to be aggregated despite this point being central to the DBT's submissions. They also voiced their concern that once the cumulative approach has been authoritatively established, it may be regularly raised as a basis for objection to disclosure by public authorities, albeit this may be unsuccessful.

Comment

The decision means that public authorities may be able to deny disclosure requests under FOIA with greater ease where there are multiple qualified exemptions, as they can combine various public interest factors which may not independently justify such action. However, as noted in the judgment, it is unclear how significant the difference between the independent and cumulative approaches will be in practice and how often the situation will arise.

The majority took the view that the cumulative approach will be more workable and prevent a skewed public interest balancing exercise, however, the dissent suggests that there could be knock on effects including reduced transparency and accountability and situations where public authorities are more reluctant to disclose information when multiple public interest factors are in play.

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