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In a significant judgment for freedom of information practitioners, the Supreme Court has ruled in Department for Business and Trade v The Information Commissioner [2025] UKSC 27 (“Montague”) that public authorities can combine the weight of multiple qualified exemptions when refusing a request. A “cumulative” approach to the public interest test is the correct one.
The case originated from a 2017 request by journalist Brendan Montague for information concerning post-Brexit trade working groups. The department withheld certain information, relying on the qualified exemptions for international relations (section 27 of FOIA) and the formulation of government policy (section 35). The key question for the Supreme Court was whether the public interest in maintaining these two exemptions could be aggregated, even if neither was individually sufficient to outweigh the public interest in disclosure.
The First-tier Tribunal had initially raised the prospect of aggregation and found in the department’s favour on that basis. While the Upper Tribunal overturned this, arguing for an “independent” silo-based assessment for each exemption, the Court of Appeal restored the cumulative approach.
The Supreme Court, by a 3-2 majority, has now settled the debate. The majority judgment, delivered by Lord Sales and Lord Burrows, focused on the wording of section 2(2)(b) of FOIA. They found that phrases like “in all the circumstances of the case” and “the public interest in maintaining the exemption” pointed towards a holistic assessment. They reasoned it would be illogical and impractical to force a decision-maker to artificially separate and ignore relevant, overlapping public interest factors specified by Parliament. Lords Sales and Burrows noted that a similarly worded provision exists under the EIR, and the Supreme Court and the European Court of Justice have approved its application as allowing different public interests to be aggregated.
The dissenting judges, Lord Richards and Sir Declan Morgan, argued that the structure of FOIA, particularly the focus on specifying “the exemption in question” in section 17, points to an independent assessment for each exemption relied upon. They observed that if two separate arguments for non-disclosure fail on their own, it is not obvious that their failures should combine to create a success. In their dissenting judgment, they described FOIA not as consisting of a single public interest test but rather a series of standalone qualified exemptions. Where the public interest test in respect of any one exemption is not satisfied so as justify disclosure being withheld, that qualified exemption does not allow information to be withheld. However, it is the majority’s view that now represents the law, giving public authorities a stronger hand when relying on multiple, finely balanced exemptions.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
