Department for Business and Trade (Respondent) v The Information Commissioner (Appellant)

Case summary

Case ID

UKSC/2023/0178

Parties

Appellant(s)

The Information Commissioner

Respondent(s)

Department for Business and Trade

Intervener(s)

Brendan Montague

Issue

Where information falls within multiple qualified exemptions in the Freedom of Information Act 2000 (“FOIA”), does section 2(2)(b) of FOIA require the public interest in maintaining each of those exemptions to be aggregated (“the cumulative approach”), or does it require the public interest in maintaining each exemption to be considered separately (“the independent approach”)?

Facts

FOIA provides a right of access to information held by public authorities, subject to the exemptions set out in the Act. Mr Montague, a journalist, made a request to the Department of Business and Trade (“the Department”) on 15 November 2017, seeking information about the Trade Working Groups set up to conduct preliminary work on post-Brexit trade deals. The Department disclosed some information on 8 February 2018, and further information on 25 March 2019 (during the course of the Commissioner’s investigation), but withheld the remainder relying on exemptions contained in section 27 of FOIA, which related to international relations, and on section 35(1)(a) relating to the formulation of government policy. These sections are ‘qualified exemptions’ as they are subject to the public interest balancing test in section 2(2)(b) FOIA which provides that “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure of the information”. Mr Montague complained to the Information Commissioners Office (“ICO”) on 19 March. The ICO upheld the Department’s position in a Decision Notice dated 29 March 2019. Mr Montague appealed to the First-tier Tribunal (“FTT”). On 26 August 2020, the FTT partially upheld Mr Montague’s appeal and ordered limited further information to be disclosed. The FTT also decided that the public interest factors relating to both section 27 and section 35(1)(a) should be aggregated together when considering the public interest test under section 2(2)(b), i.e. that the cumulative approach was correct. On appeal the Upper Tribunal disagreed, holding that the different public interest factors should not be aggregated and that the independent approach was correct. The Court of Appeal allowed the Department’s appeal, holding that the cumulative approach was correct. The ICO appeals to the Supreme Court.”

Date of issue

20 December 2023

Judgment appealed

Judgment details

Judgment date

23 July 2025

Neutral citation

[2025] UKSC 27

Appeal

Justices

Lord Lloyd-Jones

Lord Sales

Lord Burrows

Lord Richards

Rt Hon Sir Declan Morgan

Hearing dates

Start date

28 January 2025

End date

28 January 2025

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