Court Of Appeal Decision On The Interpretation Of The Freedom Of Information Act 2000

The Department for Business and Trade v The Information Commissioner & Anor [2023] EWCA Civ 1378

Statutory Framework

Under Section 1 of the Freedom of Information Act 2000 (FOIA), individuals can request information held by public authorities. Individuals are entitled to confirmation of whether the information requested is held, and if so, copies of the information should be provided to them.

Part II of the FOIA sets out several specific pieces of information that are regarded as “exempt information”. There are two sections relevant to this particular case, Sections 27 and 35 of the FOIA. Section 27 of the FOIA relates to information that would or is likely to prejudice relations with the UK. Section 35 of the FOIA relates to information held by a Government department relating to the formulation or development of Government policy.

Background

Mr Montague made a request to the Department for Information (Appellant) concerning trade working groups established in advance of trade negotiations following the UK’s withdrawal from the EU. The request included information on the existence of such groups, their membership, the dates of meetings, agendas and minutes of meetings. The Appellant disclosed some of the information requested but refused to disclose the minutes of the meetings. In support of the refusal, the Appellant relied on the fact that the minutes were exempt information within the meaning of Sections 27 and 35 of the FOIA.

Mr Montague was unhappy with the response and made a complaint to the Information Commissioner’s Office (ICO). The ICO confirmed, in a decision notice dated 29 March 2019, that the information was exempt under Sections 27 and 35. The ICO also found that the public interest in maintaining the exemptions outweighed the public interest in the disclosure of the information. The ICO applied Section 2(2)(b) of FOIA to each exemption separately.

Mr Montague appealed to the First-Tier Tribunal. The First-Tier Tribunal held that the public interest in different exemptions could be aggregated. They concluded that the public interest in Sections 27 and 35 of the FOIA together outweighed the public interest in disclosure. Mr Montague appealed to the Upper Tribunal. The Upper Tribunal concluded that aggregation was not permitted. The Appellant appealed against the decision of the Upper Tribunal.

The Appeal

All of the parties recognised that the sole issue to be determined was the proper interpretation of Section 2(2) of FOIA. Section 2(2) of the FOIA provides:

The Court of Appeal upheld the appeal. They concluded that Section 2(2)(b) of FOIA does permit the public interest exemptions set out in Part II of FOIA to be aggregated when deciding whether the public interest in maintaining the exemption outweighs the public interest in disclosure. The Court of Appeal took the view that this is reflected in the specific wording of the section, namely “in respect of any information” and “in all the circumstances of the case”.

The Court of Appeal did, however, recognise that it may not be possible in some cases to aggregate the different provisions in Part II of FOIA because of the subject matter of the provisions being relied upon. It therefore should be considered on a case-by-case basis whether aggregation is possible.

Comment

As set out above, the ICO, when making their decision, looked at both of the relevant provisions in Part II of FOIA separately rather than aggregating the two. The ICO has noted the Court of Appeal’s ruling and has confirmed that they will carefully consider the next steps accordingly. It will be interesting to see what the ICO decide to do in light of the judgment.