When does exemption mean exemption? Montague in the Court of Appeal

In Department for Business & Trade v Information Commissioner & Montague [2023] EWCA Civ 1378, the Court of Appeal considered the meaning of ‘the public interest in maintaining the exemption’ in s.2(2)(b) FOIA and held that it did not mean the public interest in each specific provision giving rise to an exemption, but the public interest in the information being exempt from disclosure overall. That means that you can aggregate the public interest in (say) s.27 in relation to prejudice to international relations, and s.35 in respect of formulation of government policy, and even if individually the public interest would favour disclosure, if the public interest taken cumulatively falls against disclosure, the information will remain exempt.

Lewis LJ reached that route by considering the natural meaning of the word ‘exemption’ in s.2(2) FOIA. He had little time for arguments based on the Interpretation Act 1978 or the relevance of the position under the Environmental Information Regulation (although this decision does align FOIA and the EIR). He held that ‘exemption’ in s.2(2)(b) does not mean ‘provision of Part II’ FOIA, but instead means ‘the exemption of the information from disclosure’ generally. ‘The natural inference is that it permits the decision-maker to weigh the combined, or aggregated, public interest reflected in the different applicable provisions of Part II’. That overturns the previously understood approach to FOIA, and notably was not in accordance with the Information Commissioner’s position on the appeal.

Andrews and Bean LJJ concurred, with Andrews LJ suggesting that it will ‘rarely’ be the case that this makes a practical difference to the outcome of FOIA applications. But it will certainly affect how public bodies formulate their decisions, and the IC their Decision Notices. Particularly where the IC decides that information should be disclosed, it will have to justify this by reference to the totality of the public interests for any Part II provisions which are engaged, not just by reference to them individually. The IC has said that it is considering the decision – it may be that this issue is taken further.

Further reading: Department for Business & Trade v Information Commissioner & Montague [2023] EWCA Civ 1378

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Authors

Francesca Whitelaw KC

Call 2003 | Silk 2023

John Goss

Call 2015

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