Cumulative Public Interest Exemptions in the Supreme Court

Posted on | by samuelwillis

Section 1(1)(b) of the Freedom of Information Act 2000 (“FOIA”) creates the right to have information held by a public authority communicated to a requestor. But as night follows day, this is not an absolute right. Part II of the Act sets out a series of exemptions to the right in section 1(1)(b). Some of these are absolute exemptions. Others are qualified. Section 2(2)(b) FOIA provides as follows:

(2) 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–

                        …

(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

This is the public interest balancing test. But what if a public authority relies on more than one qualified exemption? This was the issue in Department for Business and Trade v Information Commissioner [2025] UKSC 27. Where information falls within multiple qualified exemptions in the FOIA, does section 2(2)(b) require the public interest in maintaining each of those exemptions to be aggregated (“the cumulative approach”), or does it require the public interest in maintaining each exemption to be considered separately (“the independent approach”)?

This question split the Court. Lord Sales JSC (formerly of this parish) and Lord Burrows JSC (with whom Lord Lloyd-Jones JSC agreed) concluded that the cumulative approach was correct. Dissenting, Lord Richards JSC and Sir Declan Morgan concluded that the independent approach was correct.

Reflecting the finely balanced nature of this outcome, Lord Sales and Lord Burrows acknowledged at [34] that “the interpretation put forward by the Information Commissioner and Mr Montague”, and accepted by their dissenting colleagues, was not “an impossible one to take”.

It should also be noted that there was no disagreement as to the underlying principles to be applied – both majority and dissent conducted an analysis in line with the authoritative statement of the principles of statutory interpretation in Lord Hodge DPSC’s judgment in R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] A.C. 255.

So why did the majority conclude that the cumulative approach was correct?

At the core of their reasoning was the following assessment of the overall purpose and design of the statutory scheme ([35]):

[U]nless the words contradict this, why should the public authority be required to examine the qualified exemptions with only a part of the overall picture of the public interest reflected in the qualified exemptions in mind? All the qualified exemptions reflect aspects of the public interest in favour of non-disclosure of the information which Parliament has specifically considered should in principle be capable of justifying the non-disclosure of that information, so it is not plausible to infer that Parliament’s object is that some aspects of the public interest which can be seen to be applicable in a particular case should nonetheless be left out of account.

This conclusion as to the purpose of the statutory regime followed the conclusion of Lewis LJ (also formerly of this parish) to the same effect at [37] of his judgment in the Court of Appeal.

The important caveat to this starting point comes at the beginning of the excerpt: “unless the words contradict this”. Lord Sales and Lord Burrows tested their assessment of the overall purpose and design of the scheme against the wording of section 2(2) (see [38]-[43]), of section 2(1) ([44]-[46]), and section 17 (which makes provision for refusing requests) ([47]-[48]). They concluded, in short, that the textual features of the relevant provisions, read together and individually, were consistent with the cumulative approach.

Finally, Lord Sales and Lord Burrows considered the workability of the regime and concluded that the cumulative approach was the more workable and effective of the two approaches ([49]-[52]). They noted that a majority of the Supreme Court and the CJEU had concluded that the cumulative approach applied to the separate, EU directive-derived, Environmental Information Regulations 2004 in R (on the application of the Office of Communications) v Information Commissioner [2010] UKSC 3, [2010] Env. L.R. 20. Whilst a separate regime, Lord Sales and Lord Burrows considered that “the majority of the Supreme Court and the CJEU must have regarded [a cumulative] approach as practically workable and appropriate” ([57]) – a view that buttressed their own conclusion as to the workability of the cumulative approach under the FOIA regime.

The differences between the majority and the dissent flow from the rejection by Lord Richards and Sir Declan of the “natural inference” identified by Lewis LJ at [37] of his judgment (and adopted at [35] of the majority in the Supreme Court). At [79], Lord Richards and Sir Declan stated that “there is no basis for any “natural inference” which can provide a basis for arriving at the correct construction. As is common ground, there is no external aid. Equally, and importantly, it was not suggested that a policy of either permitting or precluding aggregations was somehow improbable, still less absurd” ([79]).

This divergence of approach with the majority led the dissenters to make more of the textual features of sections 2(1), (2) and 17 that suggest an independent approach (for example, the fact that section 2(1) provides for the effect of “theprovision” (emphasis added)) ([85]). The dissenters also considered it relevant that, when enacting the FOIA, Parliament did not create a single public interest test, like that found in section 11A(5) of Australia’s Freedom of Information Act 1985. Rather, Parliament had created “a complex system of separate categories of public interest, both absolute and qualified, by which the issue of whether to withhold disclosure is to be decided” ([79]).

This judgment, therefore, is a good example of how senior judges can reach diverging conclusions applying the same settled principles of statutory interpretation when confronted with relatively open-textured statutory wording. The issue produced a 3-2 split in the Supreme Court, the majority agreeing with Lewis, Andrews and Bean LJJ in the Court of Appeal, the minority agreeing with the three-judge panel in the Upper Tribunal (UT Judges Wikeley, Wright and Church).

What does this mean in practice?

As Lord Sales and Burrows acknowledged at [25], some of the difficulty with this case “lies in pinpointing the precise difference between the independent and cumulative approaches”. At [25]-[28] of their judgment, Lord Sales and Lord Burrows helpfully provide two hypothetical examples to illustrate the differences between the cumulative and the independent approach.

The first example, which is in the abstract:

  • The information in question triggers two qualified exemptions;
  • In respect of qualified exemption 1, the public interest in non-disclosure of the information comprises factor (a);
  • Looking at exemption 1 independently, factor (a) does not outweigh the public interest in disclosure of the information;
  • In respect of qualified exemption 2, the public interest for non-disclosure of the information comprises factor (b);
  • Looking at exemption 2 independently, factor (b) does not outweigh the public interest in disclosure of the information;
  • But if one looks at both exemptions 1 and 2 together, the public interest factors (a) and (b) taken together do outweigh the public interest in disclosure of the information;
  • Following the judgment in this case, the cumulative approach will be applied so that the information need not be disclosed. Under the rejected independent approach, the opposite conclusion would have been reached.

The second example, which is not abstract:

  • The information requested is of the information contained in the UK Government’s minutes of internal meetings for working out a strategy for trade negotiations between the UK Government and another state;
  • The UK Government wants the best deal it can get overall but it does not know where the other state might be inclined to be difficult or generous, has to consider carefully what might cause irritation, and does not want to reveal its negotiation tactics;
  • At the same time, the UK Government’s objectives in negotiating the deal have to take account of how particular parts of the deal might impact on different countries within the UK: e.g. should the UK Government press for a special deal in relation to Scotch whisky which will benefit Scotland more than England, or on financial services which will have the reverse effect?
  • On top of that, the UK Government has to consider its industrial policy (e.g. whether to press for special terms on transfer of AI technology) and its regional policy (should it press for particular forms of trade benefit which are likely to support its levelling up agenda generally and/or in relation to, say, the North East?);
  • The internal consideration bearing on these issues may well also involve information the disclosure of which would be likely to prejudice the economic interests of the UK or the financial interests of one mor more of the administrations in the UK;
  • Moreover, the UK Government has to consider its overall policy as to how all these moving parts should fit together in a coherent negotiating strategy;
  • The requested internal Government information on all these issues therefore falls within one or more of the qualified exemptions under section 27(1) (“international relations”), section 28 (“relations within the UK”), section 29 (“the economy”), and section 35(1)(a) (“formulation of government policy”).
  • Following the majority judgment in this case, once the relevant exemptions have been identified in relation to a particular item of information, all aspects of the public interest in favour of non-disclosure of the information under the identified exemptions can be brought into account in answering the following question: does the public interest in maintaining the non-disclosure of the information outweigh the public interest in disclosing the information?

In the view of the majority, this is “a much simpler way to approach the public interest balancing exercise” ([50]). Whatever one might think of that conclusion, the correct approach is now clear. It is not correct to “tease out, and consider separately and seriatim, distinct aspects of the public interest” ([50]). The correct approach is a holistic assessment of the “public interest against, and the public interest for, disclosure of the information across all the qualified exemptions that are in play” ([2]).

11KBW was well-represented in this important information law judgment, accounting for four of the six barristers who appeared before the Supreme Court.

Timothy Pitt-Payne KC and Peter Lockley acted for the Appellant, the Information Commissioner.

Robin Hopkins acted for the Respondent, the Department for Business and Trade.

Christopher Knight acted for the Intervener, Brendan Montague.