ICO updates FOI guidance on the public interest test following Supreme Court ruling

The update follows a Supreme Court ruling (DBT v ICO [2025] UKSC 27), which confirmed that where multiple qualified exemptions are engaged by the same information, the public interest factors supporting those exemptions can be considered cumulatively when weighing them against the combined public interest in favour of disclosure.

The ICO has revised its detailed guidance to reflect the judgment and how the public interest test (PIT) should be applied in these circumstances.

The updated guidance also clarifies what the ICO expects public authorities to tell applicants in their refusal notice if the outcome of the PIT is to withhold the information, and what is expected from authorities if the ICO subsequently receives a complaint following their decision.

The ICO has also produced a summary guide to the public interest test for those who are new to FOIA or short on time, providing a concise introduction to the key principles and considerations involved in applying the test.

The revised guidance tells public authorities that where the same piece of information engages more than one qualified exemption, they should weigh the public interest in maintaining all of the applicable exemptions against the combined public interest in disclosure. The ICO had previously required each exemption to be balanced separately, so that information could only be withheld if at least one exemption succeeded on its own.

The Supreme Court rejected that reading, holding that section 2(2)(b) requires an evaluation of the strength of the public interest in non-disclosure taking account of every aspect of it, and that where two or more exemptions apply to the same item it is a natural inference that all of them are brought into account.

Section 2(2)(b) of FOIA provides that the duty to communicate information does not apply where, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. The test applies only to qualified exemptions; there is no balancing exercise for absolute exemptions. The guidance covers FOIA only, with the ICO directing authorities to its separate guidance on exceptions under the Environmental Information Regulations 2004, where regulation 12(1)(b) has always been read as permitting aggregation.

The ICO emphasises that aggregation is not an arithmetic exercise. The strength of the public interest depends on the overall weight of the factors identified, not the number of exemptions cited, and several weak factors will not add up to much. Authorities must not double count where two exemptions protect overlapping elements of the same strand of public interest.

The guidance provides an example in which a sentence engages two exemptions, neither of which is sufficient alone, and explains that the combined weight is more likely to tip the balance where the harm under each exemption would occur and be severe than where one of them is modest.

The guidance also sets a firm limit. Exemptions can only be weighed together if they are engaged by the same piece of information. If the first half of a paragraph engages one exemption and the second half engages another, the public interest in each must be balanced separately against disclosure of the relevant half. That follows from a related change requiring authorities to assess exemptions at the level of individual pieces of recorded information rather than whole documents, which is likely to have the most practical effect on how redaction is carried out.

A new opening section stresses that an exemption must be properly engaged before any public interest test is carried out, with separate treatment of class-based and prejudice-based exemptions. Drawing on the Upper Tribunal's decision in Cabinet Office v Information Commissioner [2015] UKUT 461 (AAC), the ICO says information falling within the description of a class-based exemption does not automatically bring the underlying public interest into play, and authorities must consider what disclosure of the actual content would reveal.

The section on identifying and weighing factors has been expanded on both sides of the scales. Public interest factors in maintaining an exemption must relate to the specific exemption relied on; a general interest in withholding, the authority's own embarrassment, the applicant's identity or motives, arguments that the information could be misunderstood, and the existence of other scrutiny mechanisms are all listed as irrelevant.

The guidance includes a grid combining likelihood and severity of harm to help weight the case for maintaining an exemption, and uses the Upper Tribunal's 2025 decision ordering disclosure of information about Priti Patel's alleged breach of the Ministerial Code as its example of a "transparency and accountability deficit" adding weight to disclosure.

New material on neither confirm nor deny responses, built around Savic v Information Commissioner [2016] UKUT 535 (AAC), makes clear the balance must be assessed by reference to what confirmation or denial would reveal, not the consequences of disclosing any information actually held, and that NCND provisions can be aggregated on the same basis as exemptions from disclosure.

Two further sections set out what a refusal notice under section 17 must tell the applicant and what the ICO will expect an authority to demonstrate if a complaint is made under section 50. The regulator recommends tabulating each factor and the weight given to it, citing the First-tier Tribunal's decision in Department of Health v Information Commissioner (EA/2013/0087) on a minister's diary as a model of how the exercise should be approached.

Warren Seddon, ICO Director of FOI and Transparency, said: "This ruling is an important clarification for public authorities, particularly those which are more likely to be considering multiple exemptions at the same time. Getting the public interest test right, and doing it at the right stage, is fundamental to good decision making under the Act.

"We've updated our guidance to help authorities apply this approach with confidence, and we've produced a summary version alongside the detailed guidance to provide a concise and accessible introduction to the topic.”