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Freedom of Information Act does not allow aggregation of separate public interests in maintaining different exemptions when weighing them against public interest in disclosure: Upper Tribunal

The Freedom of Information Act 2000 (“FOIA”) does not permit aggregation of the separate public interests in favour of maintaining different exemptions when weighing the maintenance of the exemptions against the public interest which favours disclosure of the information sought, the Upper Tribunal has ruled.

The appeal in Montague v The Information Commissioner and Department for International Trade (Information rights - Freedom of information - public interest test, qualified exemptions) [2022] UKUT 104 (AAC) was brought by Brendan Montague, an investigative journalist who made a FOIA request to the Department for International Trade in November 2017, seeking information about the Trade Working Groups that were formed in the run up to Brexit.

The Upper Tribunal said the appeal raised two legal issues of potential relevance to appeals under FOIA more generally.

The first was the question of whether, when multiple FOIA exemptions are engaged by a single piece of information, the separate public interests in maintaining those different exemptions may be aggregated when weighing them against the public interest in disclosure (“the Aggregation Issue”).

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The second issue was the question of whether information that is disclosed after a public authority’s decision on a request (“for example, during the Commissioner’s investigation, in the course of First-tier Tribunal proceedings or as a result of a Tribunal’s decision”) should be treated as in the public domain for the purpose of weighing the public interest in disclosure of any remaining requested information (“the Public Interest Timing Issue”).

Included within the second issue was whether a public authority’s decision on a request includes any later decision on review by it of its initial decision refusing the request.

Summarising its decision on the principal questions of law, the Upper Tribunal said:

“4. As to the Aggregation Issue, we conclude that FOIA does not permit aggregation of the separate public interests in favour of maintaining different exemptions when weighing the maintenance of the exemptions against the public interest which favours disclosure of the information sought.

5. As to the Public Interest Timing Issue, we conclude it is to be judged at the time the public authority makes its decision on the request which has been made to it and that decision making time does not include any later decision made by the public authority reviewing a refusal decision it has made on the request.”

The Upper Tribunal allowed the appeal by Mr Montague but dismissed an appeal by the Department for International Trade from the decision of the First-tier Tribunal dated 26 August 2020.

The Upper Tribunal set aside the First-tier Tribunal’s decision in EA/2019/0154, dated 26 August 2020, and remitted Mr Montague’s appeal to be considered afresh by the First-tier Tribunal. It added that, if possible, the First-tier Tribunal should have the same constitution as the First-tier Tribunal whose decision the Upper Tribunal had set aside.

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