Clarification on public interest considerations under the Freedom of Information Act 2000
The Supreme Court of England and Wales in Department for Business and Trade v Information Commissioner [2025] UKSC 27 has clarified the interpretation of the Freedom of Information Act 2000 (the 2000 Act) where multiple qualified exemptions are engaged as to how the public interest test is applied.
The Freedom of Information (Jersey) Law 2011 (the Freedom of Information Law) is heavily based upon the 2000 Act. The Jersey Office of the Information Commissioner considers judgments from the English Courts on the 2000 Act assist in construing the provisions of the Freedom of Information Law (as most recently seen in its Decision Notice dated 29th April 2025 with reference CAS-04797-M4X8F6).
As such Scheduled Public Authorities in Jersey should take note of this judgment and may wish to refine their procedures to ensure that where multiple qualified exemptions apply, the public interest considerations in favour of non-disclosure under each exemption are identified, articulated and assessed collectively.
The Freedom of Information Law: A very brief introduction
The Freedom of Information Law, similar to the 2000 Act has created a general right of access to or ‘right to know’ information held by Scheduled Public Authorities, which includes government departments, Parishes and certain public bodies. This includes both a right to be informed of whether information requested is held by that Scheduled Public Authority and, if this is found to be the case, the right for this information to be disclosed.
However, both of these rights are limited by provisions in the Freedom of Information Law that exempt certain types of information from being disclosed, ranging from information regarding trade secrets to information that could prejudice commercial interests.
Information can be withheld under ‘qualified’ and ‘absolute’ exemptions. An absolute exemption means that a Scheduled Public Authority is permitted to withhold the supply of the information that is sought from it. A qualified exemption means that the Scheduled Public Authority is not obliged to disclose that type of information provided that “in all the circumstances of the case, the public interest in supplying the information is outweighed by the public interest in not doing so”.
Facts
The appeal arose from a journalist’s request for information about post-Brexit trade working groups. The Department for Business and Trade (the Department) withheld certain information, citing certain qualified exemptions under the 2000 Act. The journalist appealed that refusal to the Information Commissioner, which upheld the Department’s decision to withhold the information. The journalist appealed to the First-Tier Tribunal (the FTT), which first raised the issue of whether, when faced with multiple qualified exemptions, a public body should apply the public interest test separately for each exemption (the “independent approach”), or whether it should be aggregated (the “cumulative approach”). The FTT held that the cumulative approach should be applied and dismissed the relevant part of the journalist’s claim.
The journalist was permitted to appeal the FTT’s decision to the Upper Tribunal, which found that the public interest test for each qualified exemption should be weighed separately against the public interest in disclosing that information (i.e. it preferred the independent approach). It ruled that the FTT had erred in its decision and that its decision should be re-evaluated by the courts.
The central question that the Supreme Court had to grapple with was, when multiple qualified exemptions applied to a request for information, whether the independent or the cumulative approach is to be adopted.
As the Supreme Court noted: “It may be queried how significant the difference between those two approaches is likely to be in practice. Nevertheless, the premise of the appeal, accepted by both sides, is that it will make a difference in some cases even if those are rare cases; and it is further accepted that the difference in approach would make a difference as to whether information is required to be disclosed on the facts of this case”
Ultimately the Supreme Court held that the cumulative approach is the correct interpretation of the 2000 Act. The Supreme Court noted that such a conclusion was consistent with other recent rulings, both by the court and the Court of Justice of the European Union. It did emphasise that the cumulative approach should only be adopted when more than one qualified exemption is relied upon in relation to the same item of information.
Comment
Scheduled Public Authorities may wish to refine their procedures for dealing with requests for information under the Freedom of Information Law as a result of this judgment to ensure that, where multiple qualified exemptions apply, the public interest considerations in favour of non-disclosure under each exemption are identified, articulated and assessed collectively. However, Scheduled Public Authorities must remain alert to the risk that a cumulative assessment could inadvertently undermine transparency or accountability. It is essential that this method is not used to justify overly broad refusals of access.