“One Balance to Rule Them All” – The Supreme Court Authorises Aggregated Public-Interest Balancing under FOIA 2000

Introduction

Department for Business and Trade v The Information Commissioner [2025] UKSC 27 resolves, for the first time in the 21-year life of the Freedom of Information Act 2000 (“FOIA”), whether a public authority may aggregate different public-interest considerations arising under separate qualified exemptions when deciding to withhold information.

The dispute began with a 2017 request from journalist Mr Montague for documents relating to post-Brexit trade working groups. The Department for Business and Trade (“the Department”) relied on two qualified exemptions—international relations (s 27) and formulation of government policy (s 35)—but, taken individually, neither exemption’s public-interest case outweighed the public-interest case for disclosure. The First-tier Tribunal (“FTT”) nevertheless upheld non-disclosure by adding together the distinct public-interest factors from both exemptions. The Upper Tribunal rejected that reasoning; the Court of Appeal reinstated it. The Information Commissioner appealed to the Supreme Court.

By a 3-2 majority (Lords Sales, Burrows and Lady Rose; dissenting: Lord Richards and Sir Declan Morgan), the Supreme Court dismissed the Commissioner’s appeal and endorsed the “cumulative” or “aggregated” approach. The ruling creates a new and significant interpretative principle:

When multiple qualified exemptions apply to the same information, the decision-maker may weigh all the public-interest factors lying behind those exemptions in combination against the public interest in disclosure (s 2(2)(b) FOIA).

Summary of the Judgment

Majority holding: Section 2(2)(b) FOIA, read “in all the circumstances of the case”, permits a single composite balancing exercise. Nothing in the statutory language, context or purpose mandates a siloed (“independent”) test.
Rationale: Parliament’s overarching concern was to ensure that sensitive public-interest harms (whatever their source) are fairly balanced against openness. Treating each exemption as a watertight compartment risks artificial results, whereas aggregation provides a “real-world” assessment.
Outcome: Non-disclosure of the trade-working-group minutes was lawful because—although neither s 27 nor s 35, standing alone, tipped the scales—their combined weight did. The Commissioner’s contrary view was rejected.
Dissent (Richards & Morgan): The text (“the exemption”, “the provision”) and structure of FOIA show that each qualified exemption is self-contained; aggregation is not mentioned, has never been practised, and undermines transparency and s 17 notice requirements. They would have allowed the appeal.

Analysis

Precedents Cited

The parties and the Court drew on four principal authorities:

R (O) v Secretary of State for the Home Department [2022] UKSC 3, in which Lord Hodge restated the modern principles of purposive statutory construction. Both majority and dissent quoted its emphasis on textual primacy yet disagreed on where that led.
R (Office of Communications) v Information Commissioner [2010] UKSC 3 (concerning the Environmental Information Regulations 2004). There aggregation was found permissible because the underlying EU Directive expressly endorsed it. The present majority distinguished but found the case supportive of a broad purposive reading.
Interpretation Act 1978, s 6(c) (“singular includes the plural”). The majority relied on it to read “the exemption” as potentially plural; the dissent said s 6 cannot override clear contextual signals limiting the term to a single exemption.
FOIA architecture itself: Sections 2, 17, 27, 35. Competing readings of their cross-references lay at the heart of the dispute.

Legal Reasoning of the Majority

Textual Flexibility: The phrase “any provision of Part II” in s 2(2) naturally includes the plural; the definite article in “the exemption” does not compel singularity, especially given the Interpretation Act.
“All the circumstances of the case”: Parliament’s deliberate inclusion of this sweeping phrase signals an intention to capture the total matrix of public-interest factors. Requiring multiple separate balances would excise that phrase of meaningful effect.
Purpose of FOIA: FOIA seeks balanced transparency. A composite test avoids the oddity that information could be simultaneously subject to serious—but individually insufficient—harms yet still have to be disclosed. Parliament is unlikely to have intended the “two wrongs make a right” outcome.
Administrative Workability: Decision-makers already weigh competing factors; aggregation is simply the logical culmination of that process and does not, in the majority’s view, impose unmanageable burdens.
Comparative Insight: While acknowledging Australia’s single public-interest clause, the majority saw the UK model as functionally similar once aggregation is permitted; FOIA’s multi-exemption design reflects pragmatic drafting, not an intention to ban aggregation.

Impact on Future Cases and the Law

Practical Effect: Public authorities now have an additional (and often potent) defence to disclosure. Cases involving overlapping policy, security, commercial and international-relations sensibilities are most likely to invoke aggregation.
Information Commissioner’s Guidance: ICO codes will need revision to explain when and how to aggregate, and how to articulate the balance in s 17 refusal notices.
Judicial & Tribunal Scrutiny: The FTT and Upper Tribunal will need structured frameworks to test whether authorities have aggregated only the public-interest factors not already common to each exemption, and whether “double-counting” has occurred.
Transparency Culture: Critics fear a chilling effect, especially in politically sensitive arenas (e.g., trade, national security, health-policy negotiations). Advocates see a more coherent and realistic balancing exercise.
Legislative Prompt: Parliament may revisit FOIA to codify boundaries or impose safeguards (e.g., mandatory weighting, enhanced notice duties) if aggregation proves over-used.

Complex Concepts Simplified

Qualified vs. Absolute Exemptions: FOIA divides exemptions into “absolute” (information is withheld automatically) and “qualified” (disclosure depends on a public-interest balance).
Aggregation (Cumulative Approach): Adds together distinct harms—e.g., diplomatic damage (s 27) plus policy-making prejudice (s 35)—to see whether their combined gravity outweighs the benefits of transparency.
Independent Approach: Weighs the public-interest test separately for each exemption; unless one exemption single-handedly beats the transparency interest, the information is disclosed.
Section 2(2)(b) Test: The legal fulcrum—“in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” After this judgment, “the exemption” may be read in the plural.
Section 17 Refusal Notice: A letter explaining why information is withheld. Post-judgment, the notice must set out how various exemption-based factors were aggregated and why, in the round, they prevail.

Conclusion

Department for Business and Trade v The Information Commissioner establishes a pivotal precedent: public authorities may conduct a single, aggregated public-interest test where multiple FOIA qualified exemptions apply. The decision tips the balance modestly in favour of government confidentiality by closing what the majority viewed as an illogical gap in the statutory scheme, though the dissent warns of reduced transparency and administrative opacity.

Whether aggregation proves a limited, “rare-case” tool or becomes a routine shield remains to be seen. What is clear is that practitioners, public bodies and tribunals must now master a more sophisticated, multi-factorial balancing act—and articulate it with clarity—to remain within the newly charted contours of FOIA compliance.