“Exemption means Exemption” doesn’t cut it for the Court of Appeal: aggregation of exemptions is permitted under FOIA

The Court of Appeal has just handed down judgment in Dept for Business and Trade v IC and Montague [2023] EWCA Civ 1378, confirming that ‘aggregation’ of public interests for exemptions under FOIA is permissible. This, I promise you, is much more exciting than that opening line implies. 

Not all exemptions under Part II of FOIA are created equally; some are ‘absolute’ and some are ‘qualified’. The latter only allow a public authority to withhold requested information if the public interest in the exemption outweighs the public interest in disclosure. This is the ‘public interest test’ under s.2(2) FOIA. 

When resisting FOIA requests, public authorities frequently seek to rely on several qualified exemptions. The question that raises is whether the public interest test has to be considered for each applicable exemption separately, or whether there is an overall test in which all of the public interests in favour of the various exemptions can be aggregated and considered cumulatively. Under the equivalent provisions of the EIR, an aggregated approach should be taken. Thanks to Montague, we now know that is the case for FOIA as well.

The requested information in Montague was Brexit-related (specifically, information about the operation of ‘trade working groups’ whose job it was prepare for Brexit by negotiating trade arrangements with other countries). The Department (for International Trade, later for Business and Trade) resisted the request in reliance on two qualified exemptions in s.27 (prejudice to international relations) and s.35 (formulation of government policy). The Department argued that the public interest test should involve the aggregation of the public interests under both exemptions. The Commissioner and the Requester disagreed. 

You may recall that around the time the trade working groups were getting going, the Prime Minister declared that “Brexit means Brexit”. Unfortunately, the judgments do not record whether Christopher Knight or Peter Lockley, who appeared for the Requester and Commissioner respectively, opened their submissions with “Exemption means Exemption”. It would, however, have been a neat summary of the central argument.

Section 2(2)(b) FOIA provides the public interest test with the words “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”. The Requester and the Commissioner argued that this provided for the public interest in an exemption (singular) to be balanced against the public interest in disclosure. The Court rejected this, opting instead for the Department’s argument which, had it been represented by Theresa May rather than Robin Hopkins, may have been summarised as: “Exemption means Any And All Exemptions”. 

The Court of Appeal accepted the Department’s argument, holding that aggregation is possible. The key passage is §37 of Lewis LJ’s judgment:

“I turn then to the wording of section 2(2) of FOIA. The key issue is the meaning of the phrase ‘the public interest in maintaining the exemption’ in section 2(2)(b). That phrase, properly interpreted, means ‘the public interest in maintaining the exemption of the information from disclosure’ and that public interest has to be weighed against the public interest in disclosure. The word ‘exemption’ does not mean ‘provision of Part II’.”

This, Lewis LJ explained, was the “natural” meaning of the words, and also “the natural inference” of what Parliament must have intended. 

On a practical level, Montague helpfully aligns FOIA with the EIR, under which exceptions can be aggregated (per the CJEU judgment in Case C‑71/10 Ofcom v Commissioner). Notably, however, Lewis LJ did not think that achieving this harmony was a reason in favour of his conclusion. He explained that the EIR post-date FOIA and were brought in to implement an EU directive (itself to implement the Aarhus Convention) and that the EIR could not, therefore, be used as an aid to the interpretation of FOIA (§46). 

That rejection of the possibility of reading across from the EIR to FOIA may ultimately be one of the more influential consequences of this case; given the overlaps between the regimes, there is often a temptation to copy the interpretation from one regime into the other. This is an argument that could be raised to affect the interpretation of other provisions, as a result. In contrast, and despite the importance to the construction of FOIA of the central point in Montague, it is hard to imagine the aggregation of exemptions really making much difference in practice. As Andrews LJ observed in the opening line of her concurring judgment: “I anticipate that it will rarely be the case that the issue of statutory construction that we have been asked to resolve would make a practical difference to the outcome of an application for disclosure under FOIA.” (§49) 

Provided the parties are not dissuaded by Andrews LJ’s scepticism, we may yet get to learn what the Supreme Court thinks of “Exemption means Exemption”. The rumour in the halls of Panopticon is that the Requester and the Commissioner had applied for permission to appeal from the Court of Appeal, so watch this space.

Robin Hopkins appeared for the Department for Business and Trade 

Peter Lockley appeared for the Information Commissioner 

Christopher Knight appeared for the Requester, Mr Montague