UK Supreme Court confirms correct approach to the Freedom of Information public interest test
July 31, 2025
The UK’s Supreme Court ruled on the correct approach to the public interest test applied to qualified exemptions under the UK’s Freedom of Information act 2000 (“FOIA”) in a judgment dated 23 July 2025 [2025] UKSC 27.
The case involved an appeal from an earlier decision of the Court of Appeal on this topic involving the Department for Business and Trade (“DBT”) and the Information Commissioner (“ICO”).
As the Supreme Court noted: “The question raised in this appeal is, what is the correct approach” for this test “where the [refusal to disclose the requested] item of information in question involves more than one qualified exemption?
The ICO argued that “each qualified exemption must be assessed independently” i.e. one by one without regard to the others (the traditional approach). DBT argued that when “there is more than one qualified exemption in play, the qualified exemptions should be looked at cumulatively (or in aggregate or holistically or in combination).” The Court referred to these respectively as the “independent” and “cumulative” approaches.
The Supreme Court ruled against the ICO and the traditional “independent” approach and instead confirmed the cumulative approach to be correct. The judgment provides certainty and clarity to public authorities when considering FOIA qualified exemptions and determining the public interest test in future.
As the Supreme Court noted: “The question raised in this appeal is, what is the correct approach” for this test “where the [refusal to disclose the requested] item of information in question involves more than one qualified exemption?
The ICO argued that “each qualified exemption must be assessed independently” i.e. one by one without regard to the others (the traditional approach). DBT argued that when “there is more than one qualified exemption in play, the qualified exemptions should be looked at cumulatively (or in aggregate or holistically or in combination).” The Court referred to these respectively as the “independent” and “cumulative” approaches.
The Supreme Court ruled against the ICO and the traditional “independent” approach and instead confirmed the cumulative approach to be correct. The judgment provides certainty and clarity to public authorities when considering FOIA qualified exemptions and determining the public interest test in future.
Impact and actions
The Supreme Court judgment Department for Business and Trade (Respondent) v The Information Commissioner (Appellant) confirms that public authorities may aggregate public interest factors for and against disclosure when applying multiple exemptions under FOIA.
It should be noted that this cumulative approach is only permitted when more than one qualified exemption is relied upon in relation to the same item of information.
The ICO has stated “We acknowledge the Supreme Court's decision, which dismissed the Commissioner’s appeal by a close majority. We are 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.”
The judgment brings welcome certainty but will need public authorities to update their approaches to assessment and decision making in this area and related documentation, in particular refusal notices, explanations of public interest factors for and against disclosure and the resultant decision on balance.
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