The Court of Appeal has ruled against the Information Commissioner’s Office (ICO) in a Freedom of Information Act 2000 appeal regarding the ability to aggregate public interest factors for and against disclosure when applying exemptions under the Act.
The Department for Business and Trade appealed the Upper Tribunal’s judgment that the public interest exemption cannot be combined when more than one exemption applies to the same information. In response, the ICO argued the Upper Tribunal’s judgment was correct, and the Act is clearly structured to allow sequential consideration of single exemptions rather than aggregation.
Upholding the appeal, the Court of Appeal concluded that section 2(2)(b) of FOIA does permit the public interest to be aggregated when deciding whether the public interest in maintaining the exemption of information from disclosure, outweighs the public interest in its disclosure.
The ICO notes the ruling and will carefully consider next steps.
Update: 19 December 2023
The ICO has today sought permission to appeal the Court of Appeal ruling to support information rights and access to information for individuals.