In DEPARTMENT FOR BUSINESS AND TRADE v INFORMATION COMMISSIONER and MONTAGUE (2023) EWCA Civ 1378 the Court of Appeal has ruled that the public interest recognised in two or more different provisions in the Freedom of Information Act 2000 (FOIA) exempting information from disclosure should be assessed in combination when determining whether that public interest outweighed the public interest in disclosure. In other words, the Court approved of aggregation. It rejected the contention that the public interest recognises in each exemption provision should be weighed separately against the public interest in disclosure.
The issue in the case depended upon the proper interpretation of Section 2(2)(b) of FOIA, and, in particular, the meaning, in its statutory context, of the phrase “the public interest in maintaining the exemption” from disclosure. Lewis LJ (with whom Bean and Andrews LJs agreed) said, at paragraph 37:-
“That phrase, properly interpreted, means “the public interest in maintaining the exemption of the information from disclosure” and that public interest has to be weighed against the public interest in disclosure. the word “exemption” does not mean “provision of Part II”. As the subsection 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. There is no reason why the public interest underlying each one of the provisions conferring non-absolute exemption should be considered separately in deciding whether the public interest in maintaining the exemption of the information from disclosure outweighed the public interest in disclosure. On a proper interpretation, therefore, section 2(2)(b) of FOIA permits the public interest recognised in two or more different provisions in Part II to be assessed in combination or aggregated in determining whether the public interest in maintaining the exemption of the information from disclosure outweighs the public interest in disclosure.”
Lewis LJ found that interpretation consistent with both the structure of FOIA as a whole and the wording and purpose of Sections 1 and 2(2). The right to information is qualified in significant respects. Appropriate weight must be given to these qualifications. The public interest underlying different non-absolute exemptions should be aggregated when they overlap or are otherwise capable of aggregation. None of the specific arguments to the contrary were persuasive. The Department’s appeal from the Upper Tribunal was allowed.