Supreme Court to hear key case this week on aggregation of public interest factor when applying freedom of information exemptions
The Supreme Court will this week (28 January) consider whether public interest factors for and against disclosure when applying exemptions under the Freedom of Information Act 2000 can be aggregated.
The case of Department for Business and Trade and another (respondents) v The Information Commissioner (appellant) will consider whether section 2(2)(b) of FOIA permits aggregation.
The background to the case is that the intervener, journalist Brendan Montague, made a request to the Department for Business and Trade on 15 November 2017, seeking information about the Trade Working Groups set up to conduct preliminary work on post-Brexit trade deals.
The Department disclosed some information on 8 February 2018, and further information on 25 March 2019 (during the course of the Information Commissioner’s investigation), but withheld the remainder relying on varying exemptions contained in section 27 FOIA, which related to interactional relationships, and on section 35(1)(a) FOIA, which concerns formulation of government policy.
Mr Montague complained to the ICO under s.50(1) FOIA on 19 March.
The ICO upheld the Department’s position in a decision notice dated 29 March 2019.
Mr Montague appealed to the First-tier Tribunal (FTT).
On 26 August 2020, the FTT partially upheld Mr Montague’s appeal and ordered limited further information to be disclosed. The tribunal also decided to aggregate the public interest points in the exemptions under sections 27 and 35 FOIA.
On appeal the Upper Tribunal allowed Mr Montague’s appeal in part and dismissed the Department’s appeal.
On the question of aggregation, the Upper Tribunal concluded that the FTT had erred in law in concluding that aggregation of different public interests against disclosure is permitted.
The Department appealed to the Court of Appeal on the aggregation issue.
On 22 November 2023, the Court of Appeal held that aggregation was permitted.
The Information Commissioner was given permission to appeal that judgment.
The case will be heard by a Supreme Court panel comprising Lord Lloyd-Jones, Lord Sales, Lord Burrows, Lord Richards and Sir Declan Morgan (former Lord Chief Justice of Northern Ireland).
