Supreme Court rules public interest test can be aggregated

The UK Supreme Court has ruled in Case UKSC/2023/0178 that a cumulative approach should be applied to the public interest test when considering multiple qualified exemptions under the Freedom of Information Act 2000 (FOIA). This decision dismissed an appeal by the Information Commissioner’s Office (ICO).

The case originated from a 2017 FOIA request by journalist Brendan Montague for documents related to post-Brexit trade deals, which the Department for Business and Trade withheld citing prejudice to international relations and policy formulation. The ICO initially upheld the department's decision. However, the First-tier Tribunal (FTT) introduced the concept of a cumulative public interest test for multiple exemptions, ruling in favour of the department.

This FTT decision was later overturned by the Upper Tribunal, which argued for separate public interest tests for each exemption. The ICO then supported this stance in an appeal to the Supreme Court, with Montague intervening. The Supreme Court ultimately sided with the FTT's original decision, confirming that public bodies should use a cumulative approach when assessing the public interest in cases involving several qualified exemptions.

In a statement, the ICO said that it was "now considering the Court's findings and how we implement them in our own casework practice as well as the guidance we give to organisations responding to FOI requests."

Additional legal analysis by 11KBW Panopticon Blog. 

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