Department for Business and Trade v The Information Commissioner

Where information falls within two or more qualified exemptions under the Freedom of Information Act 2000, the public interests recognised by all applicable exemptions must be assessed cumulatively. Under section 2(2)(b), those interests are weighed together against all public interests favouring disclosure.

The exercise remains structured and transparent. A public authority may rely only on interests recognised by applicable statutory exemptions, rather than invoke an open-ended public interest against disclosure. The same cumulative approach applies to the corresponding duty to confirm or deny under section 2(1)(b). A refusal notice relying on multiple qualified exemptions should identify them and explain the relevant reasons cumulatively.

A journalist requested information from the Department concerning trade working groups established before the United Kingdom's withdrawal from the European Union. The Department withheld agendas and minutes under the qualified exemptions for international relations and government policy in sections 27 and 35 of the Freedom of Information Act 2000.

The First-tier Tribunal held that the public interests protected by the two exemptions could be aggregated. The Upper Tribunal disagreed and ordered reconsideration under an independent approach: [2022] UKUT 104 (AAC); [2023] 1 WLR 1565. The Court of Appeal restored the cumulative approach: [2023] EWCA Civ 1378; [2024] 1 WLR 2185.

The Information Commissioner appealed. The central issue was whether section 2(2)(b) requires each qualified exemption to be balanced independently against disclosure or permits the interests protected by all applicable exemptions to be assessed cumulatively.

1. By a majority, the appeal was dismissed. Lord Sales and Lord Burrows, with whom Lord Lloyd-Jones agreed, held that section 2(2)(b) of the Freedom of Information Act 2000 requires the cumulative approach. Where information engages two or more qualified exemptions, all specified public-interest reasons for non-disclosure recognised by those exemptions must be weighed together against all public-interest factors favouring disclosure.

2. The statutory scheme is structured and transparent, rather than an open-ended public-interest assessment. Each qualified exemption identifies both a category of exempt information and a public interest which Parliament has recognised as capable of justifying non-disclosure. Cumulation therefore extends only to interests reflected in applicable Part II exemptions; it does not admit unrelated reasons for secrecy.

3. The language and structure of section 2(2) support cumulation. “Any provision” naturally covers one or more provisions. “Maintaining the exemption” concerns the exempt status of the information, rather than maintaining the effect of one provision. References to “the public interest” and “all the circumstances of the case” require the strength of all relevant interests on both sides to be evaluated. Excluding an applicable statutory interest would produce an incomplete and distorted assessment.

4. The same construction applies to section 2(1)(b), which governs the duty to confirm or deny. Sections 2(1) and 2(2) are aligned and must operate coherently. The singular language does not require separate assessments because the singular embraces the plural. Under section 17, a refusal notice may specify several exemptions and should explain the relevant reasons according to their cumulative effect.

5. The cumulative approach is practically workable. It avoids artificial attempts to isolate overlapping interests protected by provisions concerning research, international relations, the economy and policy formation. The analogous environmental-information authorities offered limited but supportive confirmation that cumulation can be workable even where legislation refers to an exception in the singular.

6. Dissenting: Lord Richards and Sir Declan Morgan would have allowed the appeal. They considered that sections 2 and 17 focus on individual exemptions, that no legislative material supported aggregation, and that cumulation could impair transparency and create practical difficulty. In their view, each qualified exemption had to justify non-disclosure independently.

1. United Kingdom Supreme Court: By a 3–2 majority, dismissed the Information Commissioner's appeal and affirmed the Court of Appeal's cumulative interpretation of section 2(2)(b) of the Freedom of Information Act 2000: [2025] UKSC 27.
2. Court of Appeal: Allowed the Department's appeal, holding that public interests recognised by two or more qualified exemptions could be assessed cumulatively: [2023] EWCA Civ 1378; [2024] 1 WLR 2185.
3. Upper Tribunal: Allowed the appeal and remitted the matter to the First-tier Tribunal, holding that each qualified exemption had to be balanced separately: [2022] UKUT 104 (AAC); [2023] 1 WLR 1565.
4. First-tier Tribunal: EA/2019/0154. Dismissed the material part of the requester's appeal after aggregating the public interests protected by sections 27 and 35.