Yesterday the Supreme Court (Lords Lloyd-Jones, Sales, Burrows, Richards and Sir Declan Morgan) gave its judgment in Department for Business and Trade (Respondent) v The Information Commissioner (Appellant). In this case the Supreme Court was concerned with a discrete issue in relation to the public interest test and how it is to work where more than one qualified exemption applies to information that falls within the scope of a FOI request.

Background

On 15 November 2017 Brendan Montague, an investigative journalist, made a request to what was then the Department for International Trade (now the Department for Business and Trade) for information concerning trade working groups that had been established by the Department as part of the work being undertaken in preparation for the United Kingdom leaving the European Union following the 2016 referendum. The request ended up before the First-tier Tribunal on an appeal by Mr Montague against a decision of the Information Commissioner upholding the decision of the Department to withhold information. Before the FtT the main issue was whether the contents of agendas and minutes should have been withheld or disclosed. The exemptions in play were sections 27 (international relations) and 35 (formulation of government policy) of the Freedom of Information Act 2000 (FOIA). The First-tier Tribunal issued its decision, allowing the appeal in part, in July 2020.

Both Mr Montague and the Department appealed to the Upper Tribunal, which allowed the appeal by Mr Montague and dismissed the appeal by the Department. By this time the issue of how the public interest test should be approach where multiple qualified exemptions apply to the same information was a primary area of focus. The Upper Tribunal held that that the FtT had misdirected itself when it decided that it could and should aggregate the public interests in maintaining different exemptions rather than considering the public interest in relation to each exemption separately.

The Department appealed to the Court of Appeal, which allowed the appeal determining that the Upper Tribunal had been wrong to reject the aggregated approach which had been adopted by the First-tier Tribunal.

The Information Commissioner appealed to the Supreme Court with Mr Montague intervening in the appeal. The Supreme Court, by a majority of 3-2 (Lord Richards and Sir Declan Morgan dissenting), dismissed the appeal upholding the decision of the Court of Appeal.

Judgment of the Supreme Court

The majority judgment was given by Lord Sales and Lord Burrows (with whom Lord Lloyd-Jones agreed). The majority recognised that the interpretation advanced by the Information Commissioner and Mr Montague was not one which was impossible to take; however, they took the view that it is not the correct one. [34]

The majority judgment states, at [35]:

It is particularly important to have in mind that one is ultimately concerned under section 2(2)(b) with a public interest assessment. Given that that is so, it is a natural inference, because it enables a more complete and accurate picture of the public interest to be obtained, that all the specified public interest reasons for non-disclosure of the information, under the identified qualified exemptions, ought to be taken into account and weighed against the public interest favouring disclosure of the information. One is otherwise ignoring relevant public interest considerations against disclosure of the information even though they have been specified in FOIA as reasons for non-disclosure of the information.

In their judgment, the majority give six textual indications in section 2(2) that the the cumulative, or aggregate, approach is to be preferred over the individual approach advanced by the Information Commissioner and Mr Montague:

1. Section 2(2)(b) uses the words “any provision of Part II” rather than “a provision of Part II”. The words used refer to one or more provisions of Part II and that this approach is supported by section 6 of the Interpretation Act 1978. [38]
2. That the words “in maintaining the exemption” do not relate to the exemption in part II, but rather, relate to the exemption from the duty of disclosure in section 1(1)(b). That the words used by parliament indicate that the issue is the overall result of the public interest balancing exercise. [39]
3. That the words “the public interest in maintaining the exemption” refers, on a natural reading of the words, to the public interest across all the relevant provisions. [40]
4. The exercise in section 2(2)(b) is one of balancing the public interest in maintaining the exemption from the duty of disclosure and the public interest in disclosure of the relevant information. The exercise requires “an evaluation of the strength of the public interest for and against disclosure.” It is a natural inference that where two or more exemptions apply to the same information that the strength of evaluating the public interest in non-disclosure have to be brought together. [41]
5. The balancing exercise under section 2(2)(b) requires balancing different aspects of the public interest, recognising that multiple factors may weigh for and against disclosure. Leaving out aspects of the overall argument against disclosure while considering all of the public interest factors in favour of disclosure would lead to an unbalanced an inaccurate assessment, especially in circumstances where Parliament has identified multiple exemptions as relevant to non-disclosure. [42]
6. Weight requires to be given to the words “in all the circumstances of the case” in section 2(2)(b). Where more than one exemption applies to particular information, several aspects of the public interest in favour of non-disclosure of the information apply and those constitute part of the circumstances of the case. It is unclear what those words add were the independent approach advanced by the Information Commissioner and Mr Montague the correct approach. [43]

The majority in the Supreme Court also considered that the structure of section 17 follows the structure of sections 2(1) and (2) and therefore is consistent with the view that the aggregate approach is the correct approach to adopt in relation to the public interest balancing exercise. [47] They also considered that the aggregate approach was a much simpler approach to adopt than the individual approach advocated by the Information Commissioner and Mr Montague. [49]-[50]

While the focus of the appeal had been on the public interest in relation to disclosure, the structure of section 2(1)(b) and 2(2)(b) mean that the effect of the balancing exercise is the same when considering whether to issue a “neither confirm nor deny” response. [44]

Therefore, the correct approach to be adopted to the public interest balancing exercise where more than one qualified exemption applies to the same information is to look at the public interest holistically aggregating the public interest factors for and against disclosure in relation to all exemptions that apply rather than looking at each exemption individually.

The minority view

This was not, as indicated earlier, a unanimous decision of the Supreme Court with two members of the bench disagreeing with the majority. Lord Richards and Sir Declan Morgan gave a joint dissenting judgment and it is worth looking at some of what they said. They disagreed with with the majority and with the Court of Appeal below that there was a “natural inference” which was capable of being a basis for arriving at the correct construction. [79] They continued at [79], that :

[i]t is entirely plausible that Parliament’s purpose was to require the balance of public interests to be struck by reference to the factors relevant to each exemption relied on by the public authority. If the public interest in non-disclosure was insufficient to overcome the public interest in disclosure in the case of each exemption, there is nothing surprising in a policy that the information should be disclosed. It is not often that two or more failures are said to create a success.

Lord Richards and Sir Declan Morgan were also critical of the idea that looking at the individual exemptions separately would create an unbalanced assessment of the public interest. They stated that “this too is based on a presumption as to the policy that Parliament would have been likely to adopt.” [81] They also considered the words “in all the circumstances of the case” in section 2(2)(b) to be “at most a neutral point.” [89]

They also thought that the view of the Commissioner that real practical difficulties would be caused for both him and public authorities deserved respect on account of his and his office’s “immense experience.” [102] Senior Counsel for the Department (Sir James Eadie KC) did not, they record, dismiss that concern and accepted that there were some public interest factors against disclosure that would be very difficult to combine. This, the minority felt, “tells against an interpretation which, without clear words, would permit or require aggregation on a piecemeal basis.” [102]

They would have allowed the appeal. [103].

It will be interesting to see how those cases are dealt with where some of the public interest factors against disclosure are difficult to combine. The commissioner clearly foresees there being some difficulties in the approach that he is now required to adopt in light of the majority decision.

^{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}