Freedom of Information requests – is disclosure really in the public interest?

We set out a short summary below of the FOIA regime and what the Supreme Court’s judgment will mean for how public authorities treat FOI requests in the future.

How do public authorities deal with Freedom of Information requests?

FOIA provides the public with a right of access to information held by public authorities. This means that public authorities have to confirm whether or not they have information that is requested by a member of the public. If they do hold the requested information, they must disclose it, unless an exemption under FOIA applies to the information.

According to UK government statistics, in 2024 there were 83,041 FOI requests received by monitored bodies, which is the largest number of requests since monitoring began in 2005. Just under 30% of those requests were withheld in full or in part, with approximately 17,000 being withheld as they fell under the exemptions.

There are two different types of exemptions that can apply to requested information: “absolute exemptions” and “qualified exemptions”.

• When an “absolute exemption” applies, the public body has an automatic right to withhold the requested information.
• the public interest in maintaining the exemption outweighs the public interest in disclosure of the information” (s. 2(2)(b) FOIA). Public authorities must therefore apply the so-called “public interest test” when deciding whether a qualified exemption applies to the requested information. The qualified exemptions themselves each reflect a certain aspect of the public interest: for example, section 43 of FOIA sets out that information may be exempt from disclosure where disclosure would harm a third party’s commercial interests, and section 22 sets out that information may be exempt from disclosure where that information is due to be published at a later date.

Private companies may provide information to the Government or to public authorities in a number of different circumstances, for example when entering into contracts, or as part of ongoing relationships with their regulators. When doing so, private companies should be conscious of the risk that the information provided could be disclosed as part of a response to a request under FOIA, unless the exemptions apply.

The appeal

In January 2025 the Supreme Court heard an appeal brought by the Information Commissioner’s Office (ICO) which concerned whether, when more than one qualified exemption applies to information sought to be disclosed under FOIA, the proper approach is the ‘independent’ approach or the ‘cumulative’ approach.

• Under the ‘independent’ approach, the public interest test should be applied in respect of each exemption independently, without reference to whether other qualified exemptions are ‘in play’. In practice this would mean apply the public interest test multiple times, on each occasion taking into account only those public interest factors relevant to the specific exemption in question (for example, commercial detriment to the third party whose information stood to be disclosed) and ignoring others.
• Under the ‘cumulative’ approach, the public interest test should be applied ‘in the round’, This would mean applying the public interest test only once, considering all of the public interest factors weighing for and against disclosure together in aggregate irrespective of which exemption they relate to.

In the particular case that was the subject of this appeal, a journalist had made a FOI request to the Department for Business and Trade (DBT) about the trade working groups working on post-Brexit trade deals. DBT relied on two qualified exemptions to withhold the information:

1. that disclosure of the information would be likely to prejudice international relations; and
2. the information related to the formulation of government policy.

The ICO argued that the correct approach to considering these exemptions is the ‘independent’ approach, highlighting its concern that the alternative would lead to greater non-disclosure of information, which would be contrary to the purpose of FOIA. DBT (the Respondent) argued that the cumulative approach should be taken instead. In addition to its arguments regarding the proper statutory interpretation of FOIA, DBT also submitted that the cumulative approach is straightforward and leads to less practical difficult than the independent approach.

The Supreme Court’s judgment

In a majority judgment given by Lord Sales and Lord Burrows, with whom Lord Lloyd-Jones agreed, the Supreme Court agreed that the cumulative approach was the correct one. 

The Supreme Court not only considered this as a question of statutory interpretation but also had regard to policy considerations, concluding that: “If the independent approach were followed, not only would the public interest balancing exercise be seriously distorted and inaccurate […]it would also be a minefield replete with the potential for error (and with the potential for argument about whether an error of assessment had been made) at every level at which it was to be conducted”.

Dissent in the Supreme Court

Split judgments in the UK Supreme Court are relatively rare, with just eight split judgments out of a total of 45 judgments in 2023-2024. In this case, Lord Richards and Sir Declan Morgan gave the dissenting judgment – they disagreed with the cumulative approach on the bases that (i) there was no evidence that Parliament’s intention was for a cumulative approach to be taken, and (ii) the wording of FOIA itself suggests each exemption should be considered individually. They also appeared to echo the ICO’s concerns that, if the cumulative approach was found to be the correct one, that this would regularly be used by public authorities as a basis for objecting to FOIA requests and could undermine the transparency of public authorities' decision-making in relation to FOIA:

“[cumulation] is likely to be raised ... as a basis for objection to disclosure by public authorities on a regular basis  ... The greater the number of discretionary variables available to the public authority in the determination of the public interest in maintaining the exemption of the information from disclosure, the more difficult it will be to hold the decision maker to account and the less transparent the process will become.”

What does this mean for organisations providing information to Government?

When considering whether to disclose information, public authorities should as a matter of good practice ask for the information provider’s submissions on whether any of the exemptions available under FOIA apply to that information. In addition, at the point that they provide information to public authorities, information providers often choose to bring applicable exemptions to the public authority’s attention. The Supreme Court’s judgment is therefore potentially relevant to any organisation providing information to Government.

Next Steps

If you have any questions on the Supreme Court judgment, or need any advice on how to best protect information provided to public authorities from disclosure under FOIA then please reach out to the Public Law and Policy team at Hogan Lovells, or your usual Hogan Lovells contact.

Authored by Fraser Eccles and Maddy Vincent.