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

Under section 2(2)(b) of the Freedom of Information Act 2000, “the public interest in maintaining the exemption” means the public interest in maintaining the exemption of the information from disclosure. Where information engages more than one qualified Part II exemption, the decision-maker may assess together the relevant and overlapping public interests favouring non-disclosure, and weigh their combined force against the public interest in disclosure.

The Act does not require a sequential, provision-by-provision balance. Its purpose of openness does not require the qualified exemptions to be construed without giving proper weight to their role in the statutory scheme. Aggregation will not be appropriate where the relevant interests are too distinct to combine.

A journalist sought information from the Department concerning trade working groups established before the United Kingdom’s withdrawal from the European Union. The Department withheld minutes of meetings, relying on the qualified exemptions for international relations and formulation of government policy in sections 27 and 35 of the Freedom of Information Act 2000.

The First-tier Tribunal held that the public interests maintaining those exemptions could be combined and found that they narrowly outweighed disclosure. The Upper Tribunal held that each qualified exemption had to be weighed separately against disclosure and remitted the matter. The Department appealed on the single issue whether section 2(2)(b) permits aggregation of public interests arising under different Part II exemptions.

1. Appeal allowed unanimously. Section 2(2)(b) of the Freedom of Information Act 2000 permits the public interests recognised by two or more applicable qualified exemptions in Part II to be assessed in combination when deciding whether non-disclosure outweighs disclosure.

2. The phrase “the public interest in maintaining the exemption” refers to maintaining the exemption of the information from disclosure. It does not mean maintaining an individual statutory provision. The statutory provisions are the means by which information acquires exempt status; the balance concerns whether that information should remain exempt from disclosure.

3. The scheme of section 2(2) supports that construction. A single applicable absolute exemption ends the inquiry under section 2(2)(a). For qualified exemptions, section 2(2)(b) requires the relevant public interest in maintaining the information’s exemption to be weighed against disclosure. Parliament did not prescribe sequential, separate balances for each provision.

4. FOIA’s objective of openness does not justify giving insufficient weight to its carefully drawn qualifications and exemptions. The relevant public interests may be aggregated where they overlap or are capable of combination. Where they are too distinct, no cumulative exercise will arise.

5. Section 17 distinguishes the requirement to identify each statutory exemption relied upon from the section 2(2)(b) balancing exercise. Regulation 12 of the Environmental Information Regulations 2004, enacted later to implement a Directive, was not a legitimate aid to construing FOIA. It was unnecessary to rely on section 6(c) of the Interpretation Act 1978, although Lewis LJ would have read the singular as including the plural if it had been necessary.

• Court of Appeal (Civil Division): Allowed the Department’s appeal and held that section 2(2)(b) of the Freedom of Information Act 2000 permits aggregation of relevant public interests supporting qualified exemptions: [2023] EWCA Civ 1378.

• Upper Tribunal (Administrative Appeals Chamber): Held that separate public interests maintaining different qualified exemptions could not be aggregated and remitted the matter to the First-tier Tribunal.

• First-tier Tribunal: Aggregated the public interests underlying sections 27 and 35 and held that they narrowly outweighed disclosure of the meeting minutes.