Jurisdiction(s):
United Kingdom

UK Supreme Court: cumulative public interest test applies across multiple Freedom of Information Act 2000 qualified exemptions, including the confirm-or-deny duty

Published on: 23 July 2025

Published by a LexisNexis Public Law expert

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Article summary

Department for Business and Trade (Respondent) v The Information Commissioner (Appellant) [2025] UKSC 27

Background

FIA 2000 grants a right to access information held by public bodies, save where the Act’s exemptions apply. On 15 November 2017, journalist Mr Montague asked the Department of Business and Trade (‘the Department’) for material about the Trade Working Groups established to undertake preliminary work on post‑Brexit trade agreements. The Department released some material on 8 February 2018 and added more on 25 March 2019 (while the Commissioner’s investigation was ongoing), but retained the rest, invoking FIA 2000, s 27, concerning international relations, and s 35(1)(a) concerning the development of government policy. Those provisions are ‘qualified exemptions’, as they are governed by the public interest balancing exercise in FIA 2000, s 2(2)(b), which states that ‘in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure of the information’. Mr Montague complained to the Information Commissioner’s Office (‘ICO’) on 19 March. In a Decision Notice dated 29 March 2019, the ICO endorsed the Department’s stance. That reliance was assessed against the statutory public interest test expressly set out in FIA 2000, s 2(2)(b). Mr Montague...

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