Supreme Court backs cumulative approach under freedom of information regime to public interest and qualified exemptions
Where information falls within multiple qualified exemptions, the Freedom of Information Act 2000 (FOIA) requires the public interest in maintaining each of those qualified exemptions to be aggregated, the Supreme Court has ruled by a 3-2 majority.
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In Department for Business and Trade v The Information Commissioner [2025] UKSC 27, the Supreme Court majority said it favoured this “cumulative approach” ahead of an “independent approach” which would have required the public interest in maintaining each qualified exemption to be considered separately.
Information falling within a qualified exemption can be withheld but only if, under section 2(2)(b) of FOIA, “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure of the information”.
The background to the appeal before the Supreme Court was that, in November 2017, Mr Montague, a journalist, made a FOIA request to the Department for Business and Trade for information about the trade working groups working on post-Brexit trade deals.
The Department withheld some requested information. The Department relied on two qualified exemptions in FOIA, covering information: (i) likely to prejudice international relations (section 27); and (ii) relating to the formulation of government policy (section 35).
Mr Montague complained to the Information Commissioner, who upheld the Department’s decision to withhold the information.
Mr Montague appealed to the First-tier Tribunal, which itself raised the issue of whether the cumulative approach or independent approach was correct. It adopted the cumulative approach and, as a result, dismissed the relevant part of Mr Montague’s appeal.
The ICO disagreed with the FTT’s approval of the cumulative approach and so joined Mr Montague in appealing that decision.
The Upper Tribunal allowed the relevant part of the appeal, finding that the independent approach was correct.
The Court of Appeal then allowed the Department’s appeal on this issue. The ICO appealed that decision to the Supreme Court.
The Supreme Court by a 3-2 majority dismissed the ICO’s appeal last week, finding that the cumulative approach is correct.
Lord Sales and Lord Burrows, with whom Lord Lloyd-Jones agrees, gave the majority judgment. Lord Richards and Sir Declan Morgan gave a joint dissenting judgment.
Lord Sales and Lord Burrows said: “It is particularly important to have in mind that one is ultimately concerned under section 2(2)(b) with a public interest assessment. Given that that is so, it is a natural inference, because it enables a more complete and accurate picture of the public interest to be obtained, that all the specified public interest reasons for non-disclosure of the information, under the identified qualified exemptions, ought to be taken into account and weighed against the public interest favouring disclosure of the information.
“One is otherwise ignoring relevant public interest considerations against disclosure of the information even though they have been specified in FOIA as reasons for non-disclosure of the information.
“Put another way, unless the words contradict this, why should the public authority be required to examine the qualified exemptions with only a part of the overall picture of the public interest reflected in the qualified exemptions in mind?”
Lord Sales and Lord Burrows said all the qualified exemptions reflect aspects of the public interest in favour of non-disclosure of the information which Parliament had specifically considered should in principle be capable of justifying the non-disclosure of that information, “so it is not plausible to infer that Parliament's object is that some aspects of the public interest which can be seen to be applicable in a particular case should nonetheless be left out of account”.
The two judges said that the words of section 2(2)(b) did not contradict that inference. In fact, there were six textual indications that the cumulative approach was to be preferred.
Lord Sales and Lord Burrows added that other relevant FOIA provisions could be interpreted as being consistent with the cumulative approach.
In particular, it was natural to interpret the duty to disclose information (section 1(1)(b)) and the public interest test applicable to it (section 2(2)(b)) consistently with the separate duty on a public body to confirm whether information is held (section 1(1)(a)) and the public interest assessment applicable to that duty (section 2(1)(b)).
The duties have the same scheme and substantially the same wording. Insofar as the wording differs, it did not provide significant support for the independent approach, Lord Sales and Lord Burrows added.
Lord Sales and Lord Burrows rejected a submission from the ICO that the cumulative approach would be more practically difficult or complex to apply than the independent approach.
“On the contrary, where more than one qualified exemption is in play, it will straightforwardly allow those conducting the public interest balancing exercise to take into account all the specified public interest reasons in the identified qualified exemptions favouring non-disclosure of the information and to weigh them against all the public interest factors favouring disclosure of the information.”
Lord Sales and Lord Burrows said: “In our view that is a much simpler way to approach the public interest balancing exercise required under both section 2(1)(b) and section 2(2)(b). Applying the cumulative approach, the staff of the public authority (who have to conduct that exercise in the first place), then the Information Commissioner and his or her staff (who have to conduct the same exercise), then the tribunals which have to do the same, are all spared the mental gymnastics which would otherwise be required under the independent approach.
“Under the independent approach they would have to tease out, and consider separately and seriatim, distinct aspects of the public interest, as though hermetically sealed off from each other, even though in reality they are closely related aspects of the public interest tending in favour of maintaining exemption from disclosure.”
As a footnote, Lord Sales and Lord Burrows observed that a similarly structured (and worded) disclosure regime to FOIA exists in the Environmental Information Regulations (“EIRs”). Both the UK Supreme Court and Court of Justice of the European Union had approved the cumulative approach to public interest in non-disclosure under the EIR.
Lord Richards and Sir Declan Morgan would have allowed the ICO’s appeal, however. They noted that FOIA contains no express provision requiring the cumulative approach and, until this case, it had never been relied upon since FOIA was enacted.
They added that FOIA does not contain a single public interest test against disclosure, but a series of different QEs.
The cumulative approach will only be relevant where the public interest test for each individual QE would result in non-disclosure, Lord Richards and Sir Declan Morgan said.
Absent external aids or an identified policy indicating the cumulative approach, there was no basis for a “natural inference” that it is what Parliament intended, they suggested.
The terms of section 2(2)(b) and scheme of FOIA contained the answer: the cumulative approach was not permissible, Lord Richards and Sir Declan Morgan said.
They added: “There is also a real risk that on the cumulative approach the decision maker will be free to take a broad view of the need to disclose rather than carefully weighing in each case the weight that can properly be placed on the individual items and then assessing how, if at all, the multiple interests affect the overall balance. That the purpose of the statute is that all this should be read in without any indication as to how this should be approached is highly unlikely.”
This article is principally based on the Supreme Court’s press summary
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