Department for Business and Trade v The Information Commissioner

The Supreme Court decided that, under section 2(2)(b) of the Freedom of Information Act 2000, where more than one qualified exemption in Part II is engaged the public interest factors favouring non-disclosure reflected in those separate exemptions may properly be taken into account together when deciding whether the public interest in maintaining the exemption outweighs the public interest in disclosure. The court read the words "any provision of Part II", "in maintaining the exemption" and "in all the circumstances of the case" as directing attention to the exempt status of the information and the overall public interest balance rather than to narrowly compartmentalised assessments under individual provisions. The decision emphasised coherence between section 2(1) and section 2(2), the notice requirements in section 17 and practical workability. The appeal was dismissed, with a separate dissent arguing that the statutory text and transparency considerations favoured an independent, provision-by-provision approach.

Background and facts:

• In November 2017 a journalist, Brendan Montague, requested information from the Department for International Trade (now the Department for Business and Trade) about trade working groups. The Department disclosed some material but withheld agendas and minutes relevant to post-Brexit trade discussions (the "withheld information").
• The Department relied principally on two qualified exemptions in Part II of FOIA: section 27 (international relations) and section 35 (formulation of government policy). The Information Commissioner initially upheld the Department's refusal in a decision notice of 29 March 2019.

Procedural history:

• Mr Montague appealed to the First-tier Tribunal (EA/2019/0154) which dismissed his challenge to withholding of the material, applying a cumulative approach to the public interest test.
• The Upper Tribunal allowed Mr Montague's appeal, holding that FOIA required an independent assessment of each qualified exemption and remitted the matter to the FTT: [2022] UKUT 104 (AAC); [2023] 1 WLR 1565.
• The Department appealed to the Court of Appeal, which allowed the appeal and held that the public interest factors under multiple qualified exemptions could be aggregated: [2023] EWCA Civ 1378; [2024] 1 WLR 2185.
• The Information Commissioner appealed to the Supreme Court, which heard argument on whether section 2(2)(b) requires independent assessment or permits a cumulative approach.

Nature of the claim and issues:

• The Information Commissioner sought to overturn the Court of Appeal and to establish that each qualified exemption must be evaluated independently against the public interest in disclosure.
• The central issue framed by the court was whether, when more than one qualified exemption applies to the same item of information, the public interest reasons for non-disclosure reflected in those exemptions must be weighed separately (the "independent" approach) or may be considered cumulatively (the "cumulative" approach) under section 2(2)(b).

Court's reasoning and conclusion:

• The majority analysed section 2(2)(b) in its statutory context and concluded that textual indicators support the cumulative approach: the phrase "any provision of Part II" can embrace more than one provision, "in maintaining the exemption" is naturally read as referring to the exempt status of the information rather than only to a single statutory provision, and "in all the circumstances of the case" points to consideration of all relevant public interest factors identified in the applicable exemptions.
• The court emphasised coherence between the tests in section 2(1) (duty to confirm or deny) and section 2(2) (duty to disclose), the requirements of section 17 to specify exemptions and reasons, and practical workability — finding the cumulative approach both coherent with the scheme of FOIA and more practicable than an artificially compartmentalised alternative.
• The majority observed that the Environmental Information Regulations case law (including the Supreme Court and CJEU authorities) supported the practical and lawful application of a cumulative approach in an analogous statutory setting, though that was not determinative.
• The majority accordingly dismissed the Information Commissioner's appeal and upheld the Court of Appeal's conclusion permitting aggregation of public interest factors across engaged qualified exemptions. Two members of the court dissented, favouring an independent approach on grounds of statutory text, transparency and concern about practical consequences of aggregation.

Appeal dismissed. The majority held that section 2(2)(b) of the Freedom of Information Act 2000 should be read so that where two or more qualified exemptions in Part II apply to the same information the public interest factors favouring non-disclosure reflected in those exemptions may be considered together in the public interest balancing exercise. The court relied on the language of section 2(2)(b) (including "any provision of Part II", "in maintaining the exemption" and "in all the circumstances of the case"), coherence with section 2(1) and section 17, and considerations of practicability. A dissenting judgment argued for an independent, provision-by-provision approach grounded in the statutory wording and transparency concerns.

Request to Department for International Trade in November 2017; Information Commissioner decision notice 29 March 2019 upholding non-disclosure; First-tier Tribunal EA/2019/0154 largely dismissed Montague's appeal while raising the aggregation point; Upper Tribunal allowed Montague's appeal and required an independent assessment [2022] UKUT 104 (AAC); Court of Appeal allowed the Department's appeal and endorsed a cumulative approach [2023] EWCA Civ 1378; Supreme Court dismissed the Information Commissioner's appeal [2025] UKSC 27.