The requester made requests to the second defendant, the Department for International Trade (now the Department for Business and Trade), under the Freedom of Information Act 2000 (“FOIA”), seeking certain information regarding trade working groups that had been formed in the period before the United Kingdom left the European Union. The department issued a refusal notice under section 17 of FOIA by which it refused the request in respect of much of the information sought, upholding that response following an internal review. The requester submitted a complaint to the Information Commissioner under section 50 of FOIA. During the course of the commissioner’s investigation the department disclosed further information, consisting of extensively redacted documents, and issued a revised refusal notice. The department justified withholding the redacted information by reference to various of the qualified exemptions from disclosure provided by FOIA, including those contained in sections 27 (international relations) and 35 (formulation of government policy). The commissioner issued a decision upholding the department’s application of the exemptions. On the requester’s appeal the First-tier Tribunal upheld the commissioner’s decision in relation to the main substantive material sought by the requester, holding that for the purposes of section 2(2)(b) of FOIA the public interest in maintaining the exemptions in sections 27 and 35 outweighed the public interest in disclosing the information. In reaching that decision, the tribunal: (i) aggregated the separate public interests in maintaining those two exemptions before weighing them against the public interest in disclosure; and (ii) took account of information which had come into the public domain well after the department had made its initial decision to refuse the requester’s request. The Upper Tribunal allowed an appeal by the requester, holding that the tribunal had been wrong to aggregate the separate public interests I maintaining the exemptions. On appeal by the department, the sole issue was whether the public interest recognised in two or more different statutory provisions exempting information should be assessed in combination or “aggregated” in determining whether that public interest outweighed the public interest in disclosure; or whether the public interest recognised in each provision to be weighed separately against the public interest in disclosure.
On the appeal—
Held, appeal allowed. On its true interpretation section 2(2)(b) of the Freedom of Information Act 2000 permitted the public interest recognised in two or more different provisions of Part II of the Act to be assessed in combination or aggregated in determining whether the public interest in maintaining the exemption of the information from disclosure outweighed the public interest in disclosure. In particular, the phrase “the public interest in maintaining the exemption” in section 2(2)(b), fell properly to be interpreted as meaning “the public interest in maintaining the exemption of the information from disclosure” and the word “exemption” was not to be taken as meaning “provision of Part II”. Furthermore, since the subsection was concerned with the public interest in maintaining the exemption of the information from disclosure, the natural inference was that it permitted the decision-maker to weigh the combined, or aggregated, public interest reflected in the different applicable provisions of Part II, there being no reason why the public interest underlying each one of the provisions conferring non-absolute exemption should be considered separately in deciding whether the public interest in maintaining the exemption of the information from disclosure outweighed the public interest in disclosure. In principle, all the public interest considerations for and against disclosure should be weighed in the balance together. Accordingly, the Upper Tribunal had been wrong to conclude that the public interests in the exemptions under sections 27 and 35 being maintained had fallen to be considered separately (paras 3, 25, 33, 34, 37, 48, 56, 58, 59).
Sir James Eadie KC and Robin Hopkins (instructed by Treasury Solicitor) for the department.
Peter Lockley (instructed by Information Commissioner’s Office) for the commissioner.
Christopher Knight and Sam Fowles (instructed by Leigh Day) for the requester.