Department for Business and Trade and another (Respondents) v The Information Commissioner (Appellant)

Case summary

Case ID

UKSC/2023/0178

Parties

Appellant(s)

The Information Commissioner

Respondent(s)

Department for Business and Trade

Intervener(s)

Brendan Montague

Issue

Whether section 2(2)(b) of the Freedom of Information Act permits aggregation.

Facts

Mr Montague, a journalist, made a request to the DBT on 15 November 2017, seeking information about the Trade Working Groups set up to conduct preliminary work on post-Brexit trade deals. DBT disclosed some information on 8 February 2018, and further information on 25 March 2019 (during the course of the Commissioner’s investigation), but withheld the remainder relying on varying exemptions contained in section 27 Freedom of Information Act (“FOIA”), which related to interactional relationships, and on section 35(1)(a) FOIA (formulation of government policy). Mr Montague complained to the ICO under s.50(1) FOIA on 19 March. The ICO upheld the DBT’s position in a Decision Notice dated 29 March 2019. Mr Montague appealed to the FTT. On 26 August 2020, the FTT partially upheld Mr Montague’s appeal and ordered limited further information to be disclosed. The FTT also decided to aggregate the public interest points in the exemptions under sections 27 and 35 FOIA. On appeal the Upper Tribunal (“the UT”) allowed Mr Montague’s appeal in part and dismissed DBT’s appeal. On the question of aggregation, the UT concluded that the FTT had erred in law in concluding that aggregation of different public interests against disclosure is permitted. The DBT appealed to the Court of Appeal (“the CoA”) on the aggregation issue. On 22 November 2023, the CoA held that aggregation was permitted. The ICO seeks permission to appeal this judgement.

Date of issue

20 December 2023

Judgment appealed

Appeal

Hearing dates and panels are subject to change

Justices

Hearing dates

Start date

28 January 2025

End date

28 January 2025

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