Brendan Montague v The Information Commissioner & Anor

Under Freedom of Information Act 2000, where more than one qualified exemption is engaged, the public interest in maintaining each exemption must be assessed separately against the public interest in disclosure. The interests favouring maintenance of distinct exemptions cannot be aggregated.

The public-interest balance is assessed at the date of the public authority’s initial refusal decision. A later internal review is not part of the decision-making required by Part I of the Act. Later events may be relevant only insofar as they illuminate the position at that date.

A tribunal acts unfairly if it upholds an exemption on a materially different basis which was not advanced and which the requester had no opportunity to answer.

Mr Brendan Montague, an investigative journalist, sought information from the Department for International Trade about Trade Working Groups established before the United Kingdom left the European Union. The Department withheld material, principally minutes of meetings, relying on sections 27 and 35 of the Freedom of Information Act 2000.

The First-tier Tribunal upheld the withholding of most minutes, holding that the public interest narrowly favoured maintaining the exemptions. It ordered disclosure of limited material, including bare agendas. Both Mr Montague and the Department appealed from the First-tier Tribunal’s decision of 26 August 2020.

The central issues were whether public interests in maintaining separate qualified exemptions could be aggregated, and the date at which the public-interest balance had to be assessed.

1. Mr Montague’s appeal was allowed; the Department’s appeal was dismissed. The First-tier Tribunal’s decision was set aside and Mr Montague’s appeal was remitted for fresh determination.

2. Section 2(2)(b) of the Freedom of Information Act 2000 requires an exemption-specific balancing exercise. Its reference to maintaining the exemption means that, where several qualified exemptions apply to the same information, the public interest in maintaining each must be weighed separately against disclosure. Aggregation would inhibit the statutory right of access and was not supported by the differently worded environmental-information regime. The First-tier Tribunal therefore erred in aggregating the section 27 and section 35 interests.

3. The balance must be assessed as at the public authority’s initial decision on the request. An internal review is not a requirement of Part I of FOIA and does not extend that decision-making period. The First-tier Tribunal wrongly treated later disclosures, and information which it was itself ordering to be disclosed, as reducing the public interest in disclosure at the earlier refusal date.

4. Those errors were material because the First-tier Tribunal had found the public interest in maintaining the exemptions only narrowly outweighed disclosure.

5. The First-tier Tribunal also acted unfairly in finding section 35(1) engaged on a new “chilling effect” basis that the Department had not advanced and Mr Montague had not had an opportunity to meet.

6. The challenge to the First-tier Tribunal’s conclusion that section 27 was engaged disclosed no error of law. Nor did the Department establish error in the order for disclosure of bare agendas; its grounds merely challenged factual evaluative judgments open to the First-tier Tribunal.

• Upper Tribunal (Administrative Appeals Chamber): Allowed Montague’s appeal, dismissed the Department’s cross-appeal, set aside the First-tier Tribunal’s decision and remitted the appeal for fresh determination: [2022] UKUT 104 (AAC).
• First-tier Tribunal (General Regulatory Chamber): On 26 August 2020, upheld withholding of most Trade Working Group minutes under sections 27 and 35 of the Freedom of Information Act 2000, but required disclosure of certain less detailed information including bare agendas.