The Department for Business and Trade v The Information Commissioner & Anor

The sole issue was the proper interpretation of section 2(2)(b) of the Freedom of Information Act 2000 (FOIA): when a single item of information is caught by more than one qualified exemption, may the public interest considerations underlying those separate exemptions be aggregated when weighing non-disclosure against disclosure?

The Court of Appeal held that the phrase "the public interest in maintaining the exemption" in section 2(2)(b) means the public interest in maintaining the exemption of the information from disclosure, and thus permits consideration of the combined public interest reflected in two or more applicable provisions in Part II of FOIA. The court reasoned that "exemption" refers to the exempt status of the information (not to an individual statutory provision), that the statutory structure (including section 2(2)(a) dealing with absolute exemptions) is consistent with aggregation, and that section 17 and other contextual provisions do not require the separate sequential balancing advocated by the Upper Tribunal.

The Court therefore allowed the appeal and remitted the matter to the First-tier Tribunal for reconsideration in light of the correct legal test (including issues remaining concerning section 35).

Background and parties: The second respondent, a journalist, requested information from the Department for International Trade (now the Department for Business and Trade) about trade working groups established before the United Kingdom left the European Union, including meeting minutes. The Department withheld the minutes relying on qualified exemptions in FOIA, principally section 27 (international relations) and section 35 (formulation of government policy). The Information Commissioner found the minutes exempt and upheld the Department's refusal.

Procedural history: The complainant appealed to the First-tier Tribunal, which accepted the exemptions and, applying an "aggregation" approach, concluded that the combined public interest in maintaining the exemptions outweighed disclosure. The Upper Tribunal (UA-2020-000324-GIA) reversed, holding that section 2(2)(b) requires the decision-maker to weigh the public interest in each applicable statutory exemption separately and not to aggregate. The Department appealed to the Court of Appeal.

Nature of the application / relief sought: The appellant sought to overturn the Upper Tribunal's ruling and to establish that public interest considerations underpinning different qualified exemptions in Part II of FOIA can be aggregated when considering whether disclosure is required.

Issues framed by the court:

• whether the public interest recognised in two or more different qualified FOIA provisions may be aggregated in the balancing exercise under section 2(2)(b),
• the meaning of "the public interest in maintaining the exemption" in section 2(2)(b),
• whether statutory aids such as section 6(c) of the Interpretation Act 1978 or regulation 12 of the Environmental Information Regulations 2004 affect interpretation, and
• how section 17(1) and (3) interacts with the balancing exercise.

Reasoning and disposition: The Court found that "exemption" in section 2(2)(b) denotes the exempt status of the information and that, on its natural meaning and in context, the provision permits the decision-maker to assess the combined public interest reflected in multiple qualified exemptions. The court explained that the structure of section 2—in particular the separate treatment of absolute exemptions at section 2(2)(a)—is compatible with allowing aggregation for qualified exemptions and that the phrases "in all the circumstances of the case" and the wording of section 17(3)(b) do not require the separate sequential approach adopted by the Upper Tribunal. The Court rejected reliance on the Environmental Information Regulations as an aid to interpreting FOIA because those regulations implement EU law and were interpreted in a different context. The matter was remitted to the First-tier Tribunal for reconsideration applying the correct legal test; the Court noted unresolved issues about section 35 that will require further consideration below. Lady Justice Andrews observed that, practically, the construction will rarely change outcomes but agreed the appeal should be allowed.

Appeal allowed. The Court held that section 2(2)(b) of FOIA permits the public interest recognised in two or more different provisions in Part II to be aggregated when determining whether the public interest in maintaining the exemption of the information from disclosure outweighs the public interest in disclosure. The case was remitted to the First-tier Tribunal for reconsideration applying that test and to address remaining section 35 issues.

First-tier Tribunal (HHJ Shanks, Stephen Shaw and Pieter de Waal): partial allowance of the complainant's appeals; FTT applied aggregation and refused disclosure of minutes. Upper Tribunal (Wikeley, Wright and Church) UA-2020-000324-GIA: allowed the Department's appeal on construction grounds, held aggregation not permitted and remitted to FTT. Court of Appeal [2023] EWCA Civ 1378: allowed the Department's appeal, held aggregation permitted and remitted to FTT for reconsideration.