New Case Law Clarifies Aggregation of Public Interests in Freedom of Information Act Disclosures

Introduction

The recent case of The Department for Business and Trade v The Information Commissioner & Anor [2023] EWCA Civ 1378 presents a pivotal discussion on the interpretation of provisions within the Freedom of Information Act 2000 (FOIA). Central to the appeal was the determination of whether the public interest underpinning different statutory exemptions can be aggregated when assessing whether to disclose requested information. This case highlights the tension between the right to access public information and the protection of interests deemed essential for non-disclosure.

Key Facts

Mr. Montague, the second respondent and a journalist, requested information from the Department for Business and Trade concerning trade working groups formed prior to the withdrawal of the UK from the EU. The Department declined to provide the minutes of meetings, citing exemptions under sections 27 and 35 of FOIA, which relate to the prejudice of international relations and the formulation of government policy, respectively.

The Information Commissioner, supporting Mr. Montague’s request, held that the exemptions individually outweighed the public interest in disclosure. This decision was upheld by the First-tier Tribunal (FTT), which combined the interests under the two sections (referred to as “aggregation”) to arrive at its decision.

The Upper Tribunal, however, concluded that FOIA does not permit aggregation of separate public interests for different exemptions when balancing against the interest in disclosure and remitted the case to the FTT for a separate assessment of each exemption.

Legal Principals

The case turned on the interpretation of section 2(2) of FOIA, particularly the meaning of “the public interest in maintaining the exemption” for information exempt under any provision of Part II of FOIA. Whether this interest should be considered alone for each exemption or collectively, where several exemptions apply, formed the core of the legal debate.

The Court of Appeal’s analysis rested on statutory interpretation principles—considering the wording and context, and the purpose behind the legislation. The court had to determine the natural meaning of the term “exemption” as used within section 2(2)(b) and whether the language supports an aggregated consideration of public interests across different exemptions.

The appellant argued that the natural meaning of “in all the circumstances of the case” within the section supported aggregation, as the phrase suggests that all relevant factors, including potentially numerous exemptions, should be considered together. Contrarily, the respondents submitted that “exemption” refers to a particular provision conferring exemption, implying that each provision should be assessed individually.

Outcomes

The Court of Appeal allowed the appeal, concluding that section 2(2)(b) of FOIA enables the aggregation of public interests recognized in different Part II provisions. The judgment elucidates that “exemption” refers to the exempt status of information, and not synonymously to a provision within Part II, thus allowing the totality of public interest against disclosure to be considered against the public interest in favor of disclosure.

Conclusion

In a comprehensive and systematic approach, the Court of Appeal has provided clarity on the scope of public interest assessment within the FOIA. This decision affirms that when multiple exemptions apply to a request for information, a holistic approach can be employed to evaluate whether the public interest supports non-disclosure. This interpretation aligns with the broader objective of FOIA, which balances the right to public information against other significant public interests. Legal professionals must note that when faced with multiple exemptions, it is now appropriate to consider the public interests underlying those exemptions collectively in the decision-making process.