Information Commissioner to pursue appeal to Supreme Court over aggregation of public interest factors when applying exemptions under FOIA

The Information Commissioner’s Office (ICO) is to seek permission to appeal to the Supreme Court in a dispute over the aggregation of public interest factors for and against disclosure when applying exemptions under the Freedom of Information Act 2000.

The Upper Tribunal had ruled that the public interest exemption cannot be combined when more than one exemption applies to the same information.

The Department for Business and Trade appealed.

The ICO argued before the Court of Appeal that the Act is clearly structured to allow sequential consideration of single exemptions rather than aggregation.

However, in Dept for Business and Trade v IC and Montague [2023] EWCA Civ 1378 the Court of Appeal allowed the Department’s appeal and ruled that ‘aggregation’ of public interests for exemptions under FOIA is permissible.

Confirming its decision to apply for permission to appeal to the Supreme Court, the ICO said this was “to support information rights and access to information for individuals”.

Philip Hoult

See also: FOIA and aggregation of exemptions – Ben Mitchell of 11KBW analyses the Court of Appeal ruling.