Department for Business and Trade v The Information Commissioner

Factual and Procedural Background

On 15 November 2017, Intervenor submitted a Freedom of Information Act 2000 (“FOIA”) request to The Department for material concerning post-Brexit trade working groups. After initially refusing most of the request, the Department released a substantial amount of information only after an information notice was issued by Appellant. It continued to withhold agendas and minutes (“the withheld information”) under the qualified exemptions for prejudice to international relations (section 27) and formulation of government policy (section 35).

The Appellant’s Decision Notice (29 March 2019) upheld the withholding of the remaining information. On appeal:

• The First-tier Tribunal (FTT) disagreed with the Appellant’s analysis under sections 27 and 35 individually, but nevertheless upheld withholding by aggregating the separate public-interest factors arising under each exemption.
• The Upper Tribunal (UT) overturned the FTT, rejecting aggregation.
• The Court of Appeal reinstated the FTT’s approach, accepting aggregation.
• The Supreme Court is now considering the Appellant’s further appeal; the present text is the dissenting opinion of Judge Richards and Judge Morgan.

Legal Issues Presented

1. Whether, under section 2(2)(b) FOIA, a public authority may lawfully withhold information by aggregating the public-interest factors arising under two or more qualified exemptions when none of those exemptions, if considered separately, would justify nondisclosure.

Arguments of the Parties

Appellant's Arguments

• FOIA’s text focuses on individual exemptions; the phrase “the exemption” in section 2(2)(b) and the parallel wording of section 2(1) show Parliament required a separate balance for each exemption.
• Section 17 mandates that a refusal notice must “specify the exemption” and explain why it applies, reinforcing a non-aggregated approach and promoting transparency.
• Allowing aggregation would undermine accountability and create practical difficulties for public authorities and the Appellant when reviewing decisions.
• No external aids, Parliamentary materials, or prior practice over 20 years support an aggregation power; the doctrine should not be inferred merely because it might seem convenient.

Respondent's Arguments

• Section 2(2)(b) directs decision-makers to consider the issue “in all the circumstances of the case,” naturally inviting a combined assessment of all relevant public-interest factors.
• The public interest in disclosure is a single, weighty factor applicable across all qualified exemptions; fairness demands that it be balanced against the combined weight of all interests favouring nondisclosure.
• It would be illogical for Parliament to require disclosure simply because no individual exemption tips the balance, when, collectively, the recognised harms plainly outweigh the benefits of disclosure.

Table of Precedents Cited

Court's Reasoning and Analysis

The dissenting judges begin by rejecting the “natural inference” relied upon by the Court of Appeal that Parliament must have intended aggregation. They emphasise:

1. Statutory Text. Repeated references to “the provision” and “the exemption” in sections 2(1) and 2(2) indicate an exemption-by-exemption analysis. Applying section 6(c) of the Interpretation Act 1978 to read “exemption” in the plural would create inconsistent tests for confirming the existence of information and for disclosure, disrupting FOIA’s scheme.
2. Structure of Part II. FOIA establishes multiple, distinct categories of absolute and qualified exemptions, unlike foreign statutes (e.g., Australia’s s.11A(5)) that use a single public-interest test. Parliament’s detailed categorisation suggests a deliberate choice to require discrete balancing exercises.
3. Section 17 Transparency Obligations. A refusal notice must identify “the exemption in question” and the reasons it applies. Aggregation would obscure the basis of refusal and weaken accountability, contrary to section 17’s purpose.
4. Absence of External Support. No Hansard material, White Paper, or long-standing administrative practice endorses aggregation. In over 92,000 complaints before the Appellant, no public authority advanced an aggregation argument until the FTT raised it sua sponte in this case.
5. Practical Difficulties. Aggregation invites inconsistent, piecemeal application and complicates oversight, as acknowledged even by Attorney Eadie.

Consequently, the judges conclude that “maintaining the exemption” in section 2(2)(b) refers to the particular exemption engaged, not a composite of several exemptions, and that Parliament did not confer any express or implied power to aggregate public-interest factors across different exemptions.

Holding and Implications

Holding: APPEAL ALLOWED.

These judges would overturn the Court of Appeal and restore the Upper Tribunal’s ruling that FOIA does not permit aggregation of public-interest factors across multiple qualified exemptions. Each exemption must independently outweigh the public interest in disclosure for information to be withheld.

Implications: The decision, if it commanded a majority, would reinforce transparency by preventing public authorities from combining disparate public-interest harms to justify nondisclosure. It would clarify the statutory framework, require granular justification under section 17, and maintain consistency with two decades of administrative practice. No new cause of action or broader doctrinal shift is introduced; the immediate effect limits how public authorities may invoke sections 27 and 35 (and other qualified exemptions) in future FOIA determinations.