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”)? Continue reading →

The case is of interest for the Upper Tribunal’s construction of section 11(1) of the Freedom of Information Act 2000 (“FOIA”).

The appeal concerned a request for information that was held in audio form by the second respondent, the Maritime and Coastguard Agency (the “MCA”). The appellant, Mr Walawalkar, on behalf of Liberty Investigates, requested distress calls made to the coastguard over a period of a week from people in the English Channel. Mr Walawalkar requested that the calls be provided in transcribed form if the audio calls could not be disclosed.

Section 11(1) FOIA provides as follows:

(1) Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely–

(a) the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant,

(b) the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and

(c) the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant,

the public authority shall so far as reasonably practicable give effect to that preference (emphasis added).

The key question in this appeal was whether the “so far as reasonably practicable” test in section 11(1) FOIA is an “all or nothing” test or a “sliding scale”. Continue reading →