Freedom of Information Requests (FOIR) provide an important mechanism to obtain information held by public authorities. Alongside their counterpart, the Environmental Information Regulations (EIR), these requests can be an important tool used by potential litigants or those looking to hold bodies to account such as journalists and activists. 

Because of the prominent role such requests can play in future litigation or public inquiries, public authorities often strongly resist disclosure based on exemptions. Commonly, satellite legal battles arise over whether such disclosure should have been given. 

A recent update to the Information Commission’s guidance, following a long-running case that ended in the Supreme Court, has arguably made it easier for public authorities to resist disclosure. We explore the guidance and its implications below.

Recap of the FOIA

Public authorities have a duty, in response to a valid FOIR, to provide information to a requester (and essentially the world at large). That duty is subject to a number of exemptions, which can be split into those that require assessment of the public interest and those that do not. Those subject to the public interest test (PIT) are described as “qualified exemptions.” Some important qualified exemptions include where the information:

• Is intended for future publication;
• Is likely to prejudice law enforcement; 
• Is likely to prejudice international relations or relations within the UK; or
• Is in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

The need to maintain the exemption must be balanced against the public interest in disclosing the information. But how do public authorities carry out this balancing act and what do they do in the instance when more than one qualified exemption applies?

Supreme Court decision

This was recently considered by the Supreme Court in Department for Business and Trade v The Information Commissioner [2025] UKSC 27. The original request in this case had been made by a journalist in 2017 who sought information about working groups set up to look at post-Brexit trading arrangements. The original request had been resisted on the basis of two separate qualified exemptions: the impact on international relations and the formulation of government policy. Plenty had, of course, changed by the time the case eventually arrived at the Supreme Court.

The Supreme Court had to decide where the information requested falls within multiple qualified exemptions, should the public interest in maintaining each of those exemptions be aggregated (the cumulative approach), or should the public interest in maintaining each exemption be considered separately (the independent approach)? It concluded that the cumulative approach was correct, finding that it “enables a more complete and accurate picture of the public interest to be obtained, that all the specified public interest reasons for non-disclosure of the information, under the identified qualified exemptions, ought to be taken into account and weighed against the public interest favouring disclosure of the information”.

Updated guidance

The FOI guidance on the public interest test has been updated to reflect this ruling and how the PIT should be applied in these circumstances. It states “This doesn’t mean that you can approach the balancing test as an arithmetic exercise by simply counting how many different factors are in play. The strength of the public interest isn’t about the number of public interest factors you can add on both sides of the scales. It’s about the overall strength of those different factors”. It clarifies that public authorities must consider how important each factor is based on the content of the information.

The guidance warns public authorities must be careful not to “double count” when more than one qualified exemption applies. Where two exemptions protect overlapping elements of the same public interest, that shared factor should carry the same weight.

Importantly, public interest arguments for multiple exemptions can only be combined where those exemptions are engaged by the same information. Where exemptions apply to different parts of the requested information, each must be weighed separately against the public interest in disclosing the relevant information.

This is now in line with the public interest test for requests for information under the EIR, which also provides that where more than one exception is engaged by the same information, the public interest in disclosure should be weighed against the aggregated weight of maintaining all the exceptions.

The updated guidance also clarifies what refusal notices should tell applicants where the PIT favours withholding, and what the ICO expects from authorities if a complaint follows.

Where a public authority refuses a FOIR and is relying on more than one exemption, the guidance states that it should explain in its refusal notice:

• Why the exemptions are engaged, including the reasoning for concluding disclosure would be harmful;
• Why each exemption is engaged by the information;
• Which public interest factors are relevant to which exemption;
• What the public interest factors in favour of disclosure are; and
• How the public authority reached the conclusion that, in the specific circumstances of the case, the public interest lies in maintaining the engaged exemptions.

Comment

The cumulative approach is likely to tip the balance further in favour of public authorities, potentially making it harder to obtain information that engages several qualified exemptions. However, the safeguards in the guidance matter: authorities cannot simply count factors, “double count” overlapping interests or aggregate exemptions covering different information, and must explain their reasoning in any refusal notice. Requesters should scrutinise refusal notices against these requirements, as any shortcomings may provide grounds for an internal review or a complaint to the Information Commission, although perseverance will be required to see these requests through to conclusion.