The Supreme Court considered whether, under the Freedom of Information Act 2000, where multiple qualified exemptions apply to requested information, the public interest factors favouring non-disclosure can be assessed cumulatively across exemptions rather than independently for each. By a 3-2 majority, the Court held the cumulative approach is correct.
Background
In November 2017, journalist Brendan Montague requested information from the Department for International Trade (now the Department for Business and Trade) concerning trade working groups established to consider post-Brexit arrangements. While some information was disclosed, the Department withheld the agendas and minutes of trade working group meetings, relying on two qualified exemptions under the Freedom of Information Act 2000 (‘FOIA’): section 27 (prejudice to international relations) and section 35 (formulation of government policy).
Mr Montague complained to the Information Commissioner, who upheld the Department’s refusal. On appeal to the First-tier Tribunal (‘FTT’), the FTT raised of its own motion the question of whether multiple qualified exemptions could be assessed cumulatively. The FTT held that while neither exemption individually justified non-disclosure, their cumulative effect did. The Upper Tribunal reversed, holding that the independent approach was required. The Court of Appeal reinstated the cumulative approach. The Information Commissioner appealed to the Supreme Court.
The Issue
The sole issue was whether, when more than one qualified exemption under Part II of FOIA applies to particular information, the public interest factors favouring non-disclosure under each exemption must be assessed independently (the ‘independent approach’), or whether they may be aggregated and weighed together against the public interest in disclosure (the ‘cumulative approach’).
As the majority explained:
The question raised in this appeal is, what is the correct approach under section 2(2)(b) where the item of information in question involves more than one qualified exemption?
The Parties’ Arguments
The Information Commissioner and Mr Montague
They argued that FOIA’s structure of separate exemption provisions indicated that each must be assessed independently. They submitted that ‘the exemption’ in section 2(2)(b) referred to the particular provision relied upon, that the cumulative approach would lead to greater non-disclosure contrary to the statute’s purpose, and that it would be difficult to operate in practice.
The Department
The Department argued that the wording and structure of FOIA supported the cumulative approach. It submitted that ‘maintaining the exemption’ in section 2(2)(b) referred to maintaining the exempt status of the information, not to a particular provision. Sir James Eadie KC asked: why would Parliament, in an exercise concerned with weighing the public interest, require that the overall public interest in non-disclosure under identified qualified exemptions should not be taken into account?
The Court’s Reasoning
The Majority (Lord Sales, Lord Burrows, and Lord Lloyd-Jones)
The majority held that the cumulative approach was correct, identifying several textual and purposive indicators in FOIA.
First, section 2(2)(b) refers to information exempt ‘by virtue of any provision of Part II’, with ‘any’ naturally meaning one or more provisions:
If the correct approach is to focus exclusively on one particular provision separately from the others, there would have been no good reason for the word ‘any’ to have been used instead of the word ‘a’.
Second, the phrase ‘maintaining the exemption’ was best read as maintaining the exempt status of the information from disclosure, not as a reference to a single provision:
The words ‘in maintaining the exemption’ are naturally read as meaning the maintenance of the exemption from the duty to disclose the information and not as a reference to one particular provision: ie the exemption being referred to is the exempt status of the information.
Third, ‘the public interest in maintaining the exemption’ naturally referred to the public interest across all relevant provisions. Fourth, since it was common ground that the public interest in favour of disclosure could have various cumulative aspects, there was no good reason to restrict the non-disclosure side of the balance:
There is no good reason to exclude consideration of multiple relevant factors bearing on the public interest on one side of the balancing assessment of where the overall public interest lies whilst taking all relevant factors bearing on the public interest into account on the other side of the balance.
Fifth, the opening words ‘in all the circumstances of the case’ pointed towards cumulation, since the existence of multiple applicable exemptions formed part of the circumstances.
The majority strongly endorsed the reasoning of Lewis LJ in the Court of Appeal:
As [section 2(2)(b)] is concerned with the public interest in maintaining the exemption of the information from disclosure, the natural inference is that it permits the decision-maker to weigh the combined, or aggregated, public interest reflected in the different applicable provisions of Part II.
On practical workability, the majority held the cumulative approach was simpler, sparing decision-makers the ‘mental gymnastics’ of teasing out closely related public interest factors as though ‘hermetically sealed off from each other’.
The majority also noted the analogous position under the Environmental Information Regulations 2004, where the Supreme Court majority and the CJEU had favoured a cumulative approach to similar wording, though they accepted the precedent was of limited weight.
The Minority (Lord Richards and Sir Declan Morgan)
The dissenters considered there was no basis for a ‘natural inference’ favouring either approach. They emphasised that section 2(1) focused on ‘the provision’ (singular), indicating each exemption should be assessed individually. Lord Richards observed:
It is not often that two or more failures are said to create a success.
They highlighted the transparency purpose of section 17, which requires specification of individual exemptions, and cautioned that aggregation would be raised regularly by public authorities, undermining FOIA’s accountability mechanisms. They gave weight to the Information Commissioner’s practical experience:
Given the immense experience of the Commissioner and his office in the application of FOIA, this assessment deserves respect. A court is not well-placed to substitute its own view.
Practical Significance
This decision establishes that where multiple qualified exemptions under Part II of FOIA apply to the same information, decision-makers may — and should — aggregate all the public interest factors favouring non-disclosure across the applicable exemptions and weigh them collectively against the public interest in disclosure. This applies to both the duty to confirm or deny under section 1(1)(a) and the duty to disclose under section 1(1)(b).
The decision has significant implications for the practical operation of FOIA. Public authorities may now present a cumulative case for non-disclosure drawing on multiple exemptions, even where no single exemption would independently justify withholding the information. The Information Commissioner and tribunals must conduct the public interest balancing exercise on this cumulative basis. The decision resolves an issue of principle that had produced divergent views through the tribunal and appellate hierarchy, and provides certainty for the many thousands of FOIA requests processed annually.
Verdict: The Supreme Court dismissed the appeal by a majority of 3-2 (Lord Sales, Lord Burrows and Lord Lloyd-Jones; Lord Richards and Sir Declan Morgan dissenting). The Court held that the cumulative approach to assessing multiple qualified exemptions under section 2(2)(b) of the Freedom of Information Act 2000 is correct, upholding the decision of the Court of Appeal.
Source: Department for Business and Trade v The Information Commissioner [2025] UKSC 27
