Supreme Court clarifies cumulative approach to qualified exemptions under FOIA

Recently in the world of information governance, the UK General Data Protection Regulation (GDPR) has put freedom of information in the shade somewhat.

However, on the 23 July 2025, Freedom of Information Act (FOIA) was back in the spotlight when the Supreme Court ruled on the approach to aggregating public interest arguments when applying exemptions under the Freedom of Information Act 2000 (FOIA).

The central issue in this case is the interpretation of section 2(2)(b) of FOIA. The Court was asked to consider whether multiple qualified exemptions should be assessed independently or cumulatively when determining the public interest in disclosing information.

The Information Commissioner argued for the independent approach, where each qualified exemption is assessed separately. The Department for Business and Trade (DBT) supported the cumulative approach, where the public interest factors from multiple exemptions are aggregated.

The case had a close majority with two dissenting judgements. Overall, however, the Court dismissed the appeal and held that the public interest test can be considered cumulatively, ruling in favour of DBT.

The Court reasoned that by aggregating the public interest and considering it cumulatively, it provides a more complete and accurate picture.

It allows the authority to consider all specified reasons for non-disclosure across the identified exemptions. The judgement acknowledged however that the outcome of the case will only make a difference to rare cases.

The key section of FOIA that was being debated in this case was section 2(2) which reads as follows:

In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—

1. the information is exempt information by virtue of a provision conferring absolute exemption, or
2. in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

The Court considered the interpretation in particular of section 2(2) and whether Parliament’s intention had been that the public interest must only be considered for each exemption individually, or whether the wording allowed the public interest to be considered cumulatively.

Overall, the Court held that the section meant the public interest could be considered cumulatively for the following reasons:

1. Section 2(2) uses the phrase “any provision of Part II“, not “a” provision. Suggesting that the provision could refer to one or more provisions, supporting a cumulative approach to exemptions.
2. The words “in maintaining the exemption” are not referring to a specific provision.
3. The phrase “the public interest in maintaining the exemption” should be interpreted as referring to the public interest across all relevant provisions, rather than being limited to individual provisions.
4. Section 2(2)(b) requires balancing the public interest in maintaining the exemption against the public interest in disclosure, and the public interest may have many aspects. Where two or more exemptions are considered, the Court was of the view that it is a natural inference that all aspects of the public interest are brought into account.
5. There is no good reason to exclude consideration of multiple factors when balancing the public interest. Excluding any relevant factors would lead to an unbalanced and inaccurate assessment of the public interest.
6. Section 2(2)(b) starts with “in all the circumstances of the case”, and this should be given weight. If an independent approach was followed, the Court considered it unclear as to what these words would be adding. This is a point on which the Supreme Court differed from the Court of Appeal which had considered the phrase to be neutral.

The Supreme Court also looked at the wording of section 17 (Refusal of request) of FOIA. Section 17(3)(b) requires that when an authority explains why a request is refused, they must state their reasoning in respect of the public interest “in all the circumstances of the case”.

Lord Richards and Sir Declan Morgan delivered the dissenting opinion and argued that FOIA’s structure supports the independent approach, as it focuses on individual exemptions and does not explicitly provide for aggregation.

The dissenting opinion disagreed that a natural inference could be made regarding the interpretation of section 2(2). It was also noted that whilst in Australia, there is a single public interest test, Parliament did not choose to adopt that approach for FOIA.

It is of note that the issue of considering the public interest independently or cumulatively did not arise when this query first arose in 2017. It did not feature in DBT’s reasoning when it refused the request, and it was not a consideration of the ICO when they considered the complaint from the requestor.

In fact, the ICO upheld DBT’s decision and agreed that the information should not be disclosed. The issue then only arose when the First-tier Tribunal (FTT) heard the requestor’s appeal and the FTT itself raised the question.

Therefore, in practice, this Supreme Court decision may not have a material effect on the way in which public authorities consider freedom of information requests.

However, in those rare cases, in particular when relying on multiple similar exemptions, then public authorities now have a clear authority that the public interest test can be considered cumulatively. The Supreme Court is also optimistic that the cumulative approach is a simpler approach and will avoid the mental gymnastics required to apply an independent approach.