Supreme Court Narrows the Route To FOI Disclosure
In its decision in Department for Business and Trade and Anor (Respondent) v Information Commissioner (Appellant) [2025] UKSC 27, the Supreme Court has made it more difficult for citizens to obtain information from the government and public bodies. The Freedom of Information Act 2000 creates a right to disclosure of information held by public bodies unless that information falls within one of the provisions of Part II of the Act. Some of those provisions confer “qualified exemptions”. The information falling within those provisions is only exempt from disclosure where the public interest in “upholding the exemption” outweighs the public interest in disclosure. The Supreme Court held that, where information falls within multiple provisions of Part II, the interests weighing against disclosure can be aggregated.
The decision marks the end of one of (if not the) longest running freedom of information cases since FOIA became law. In 2017 journalist Brendan Montague (Editor of The Ecologist) requested information about the UK’s post-Brexit trade talks with several other states. The sole issue for the Supreme Court was the aggregation of public interests weighing against disclosure.
Lord Sales and Lord Burrows (with whom Lord Lloyd-Jones agreed) held that (a) the language of the Act (particularly the reference to information being exempt if “any” provision of Part II applied and the use of the term “maintaining the exemption”) supported aggregation and (b) given that Parliament had designed a scheme which inevitably involved the aggregation of the relevant public interests for disclosure, the lack of a contrary intention suggested the contrary interest should be treated the same way. Lord Richards and Sir Declan Morgan held that the language of the Act, rather, supported the view that aggregation was not permissible and the assumption that Parliament must have intended for the interests against disclosure to be aggregated was based on a presumption of Parliament’s intention which was not supported by the language or structure of the Act.
The court acknowledged that there will be relatively few cases in which matters will be so finely balanced as for this rule to apply. In such cases, the Supreme Court has not permitted unrestricted aggregation of the interests against disclosure, only of those identified in Part II. The case nevertheless raises some difficult questions which go beyond the four corners of FOIA. The minority’s reasoning was more orthodox. With the majority’s reasoning prevailing, however, will courts now feel able to assume an intention on the part of Parliament simply because the contrary intention is not clearly evidenced?
39 Essex Chambers’ Sam Fowles acted for intervenor Brendan Montague, the Editor of the Ecologist and the person who made the request for information relating to the government’s post-Brexit trade talks, on which the Supreme Court’s decision was based (instructed by Erin Alcock of Leigh Day and led by Christopher Knight of 11KBW).
Link to the judgment is here.
