In the public interest 

This year marked the 20^th anniversary of the Freedom of Information Act 2000 coming into force. 

The UK Supreme Court also gave its judgment this year in a long-running appeal clarifying how public authorities are to assess public interest under the Freedom of Information Act 2000 where more than one qualified exemption to disclosure is in play: Department for Business and Trade -v- The Information Commissioner [2025] UKSC 27. 

In the leading judgment, it was noted that the Freedom of Information Act 2000 was a “landmark statute” which gave a general right of access to information held by public authorities. However, exemptions may be applied by the public authority, which are either classified as ‘absolute’ or ‘qualified’. If a qualified exemption is to be applied to the information requested, the public authority is required to undertake a balancing test under the legislation, namely whether “the public interest in maintaining the exemption outweighs the public interest in disclosure of the information”. 

The legislation provides a number of qualified exemptions, including, for example, where disclosure would, or would be likely to, prejudice the commercial interests of the public authority or a third party (section 43 (2)) or where a claim of legal professional privilege could be maintained in respect of the information requested (section 42). The first example is a “prejudice based” exemption and the second example is a “class based” exemption as it relates to the type of information requested.  

In the case in hand, the relevant government department had received a request from a journalist for information relating to trade working groups which had been set up to look at post-Brexit trade issues. Some information had been provided by the government department, but other information (minutes and agendas of meetings) had been withheld. The government department had applied two exemptions, namely: that disclosure would, or would be likely to, harm a range of UK interests as specified in the legislation, such as the relations between the UK and any other State (section 27); and information relating to the formulation of government policy and other specified classes of governmental information (section 35). 

The question for determination by the UK Supreme Court was whether the correct approach was for the public interest balancing test to be undertaken by a public authority on an “incremental” basis (the Information Commissioner’s position) or on a “cumulative” basis (the government department’s position). The incremental approach would require a balancing of the public interest to be assessed independently for each exemption where multiple exemptions are claimed. The cumulative approach would allow the public authority to consider all the public interest arguments in aggregate.  

The majority decision of their Lordships decided in favour of the cumulative approach as a matter of statutory interpretation, noting also that this would be simpler in practice: 

“where more than one qualified exemption is in play, it will straightforwardly allow those conducting the public interest balancing test to take into account all the specified public interest reasons in the identified qualified exemptions favouring non-disclosure of the information and to weigh them against all the public interest factors favouring disclosure of the information.” (paragraph 49) 

The Information Commissioner’s Office has stated that it is considering the judgment carefully and will be reviewing its guidance on the public interest test. 

The ICO’s existing guidance helpfully confirms that the public interest covers a range of “values and principles relating to the public good, or what is in the best interests of society”. It notes that there is a public interest inherent in many of the exemptions themselves but that the public interest can come in many forms, noting also: transparency and accountability, to promote public understanding and democratic processes; good decision-making by public bodies; upholding standards of integrity; ensuring justice and fair treatment of all, securing the best use of public resources; and, ensuring fair commercial competition in a mixed economy. 

In revisiting the existing ICO guidance, it was noted, for example, in the higher education sector that an argument had been rejected previously that the fact that there was external scrutiny of course material (then by the Quality Assurance Agency) did not mean that the public interest favoured non-disclosure: University of Central Lancashire -v- Information Commissioner and David Colquhoun EA/2009/0034 (8 December 2009). The information tribunal in that case had noted that “the public has a legitimate interest in monitoring the content and academic quality of a course” and that “it must be open to those outside the academic community to question what is being taught and to what level in our universities.” 

It is worth noting that the UK Supreme Court (and the European Court of Justice) has also concluded that the correct interpretation is the ‘cumulative’ approach for assessing the public interest for what are called ‘exceptions’ under analogous provisions in the Environmental Information Regulations 2004, which give a right of access to environmental information held by public authorities.