Montague v Information Commissioner and another
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] UKUT 104 (AAC) |
| Year | 2022 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2021 Sept 20, 21; 2022 April 13
Upper Tribunal Judges
Freedom of information - Disclosure - Exemption - Public authority refusing request for disclosure of information - Information Commissioner and First-tier Tribunal upholding refusal on basis of qualified exemptions - Whether separate public interests in maintaining different qualified exemptions to be aggregated before weighing them against public interest in disclosing information - Whether tribunal to weigh public interests as at date of public authority’s refusal -
The requester made requests to the Department for International Trade under the Freedom of Information Act 2000F1, seeking certain information regarding trade working groups that had been formed in the period before the United Kingdom left the European Union. The department issued a refusal notice under section 17 of the 2000 Act by which it refused the request in respect of much of the information sought, upholding that response following an internal review. The requester submitted a complaint to the Information Commissioner under section 50 of the 2000 Act. During the course of the commissioner’s investigation the department disclosed further information, consisting of extensively redacted documents, and issued a revised refusal notice. The department justified withholding the redacted information by reference to various of the qualified exemptions from disclosure provided by the 2000 Act, including those contained in sections 27 (international relations) and 35 (formulation of government policy). The commissioner issued a decision upholding the department’s application of the exemptions. On the requester’s appeal the First-tier Tribunal upheld the commissioner’s decision in relation to the main substantive material sought by the requester, holding that for the purposes of section 2(2)(b) of the 2000 Act the public interest in maintaining the exemptions in sections 27 and 35 outweighed the public interest in disclosing the information. In reaching that decision, the tribunal: (i) aggregated the separate public interests in maintaining those two exemptions before weighing them against the public interest in disclosure; and (ii) took account of information which had come into the public domain well after the department had made its initial decision to refuse the requester’s request.
On appeal by the requester—
Held, allowing the appeal, (1) that statutory cutting down of the general and important constitutional right of access to information that was conferred by section 1 of the Freedom of Information Act 2000 needed to be carefully construed; that, so construed, section 2(2)(b) of the 2000 Act provided that, where a qualified exemption applied, a requester’s right under section 1(1)(b) to have information communicated to him did not apply if, in all the circumstances of the case, the public interest in disclosing the information was outweighed by the public interest in maintaining that exemption singular (rather than that exemption together with any other applicable qualified exemptions); that, thus, section 2(2) of the 2000 Act set out a structured approach which involved the public authority deciding each applicable exemption separately, starting with any absolute exemption and then, if none applied, sequentially considering the public interest in maintaining each qualified exemption that was engaged and balancing that exemption-specific public interest against the public interest in disclosure; that it followed that the 2000 Act did not permit aggregation of the separate public interests in maintaining different qualified exemptions when weighing the maintenance of the exemptions against the public interest in disclosure of the information sought; and that the First-tier Tribunal had erred in law in taking the contrary view (post, paras 4, 24–29, 42, 44, 116).
(2) That the balancing of the public interest factors under section 2(2)(b) of the 2000 Act fell to be judged as at the date of a public authority’s original refusal of a request for information, which decision had to be made in accordance with the requirements of Part I of the 2000 Act; that, for that purpose, the public authority’s refusal decision did not include the upholding of that decision following an internal review since no such review was required by Part I of the Act; that, further, since the function of the Information Commissioner on a complaint made under section 50 of the 2000 Act was limited to determining whether the public authority had dealt with the request in accordance with the requirements of Part I of the Act, the comissioner was not charged with re-deciding the request as at the time of his decision on the complaint; that, likewise, since on appeal from the comissioner the role of the First-tier Tribunal under section 58 of the Act was focused on the correctness of the commissioner’s decision the tribunal did not re-decide the request as at the time of its decision; that, therefore, the tribunal in the present case had been required to ask, in respect of each piece of information sought by the requester, whether at the date of the department’s initial refusal decision the public interest in maintaining a given exemption outweighed the public interest in disclosing the information, taking account of anything that was already actually in the public domain at the date of that refusal; and that it followed that the tribunal had erred in law by not confining itself to assessing the balance of the competing public interests for and against disclosure on the basis of matters as they stood at the date of the department’s initial refusal decision (post, paras 5, 54, 60–70, 85–89, 116).
The following cases are referred to in the judgment:
All Party Parliamentary Group on Extraordinary Rendition v Information Comr
Chief Supplementary Benefit Officer v Leary [
Department of Health v Information Comr (EA/2013/0087) (unreported) 17 March 2014,
Dransfield v Information Comr
Evans v Information Comr
Firth, Ex p, In re Cowburn (
Foreign and Commonwealth Office v Information Comr
Gilchrist v Revenue and Customs Comrs
Home Office v Information Comr
Home Office v Information Comr
Home Office v Information Comr
Information Comr v Malnick
Information Comr v Revenue and Customs Comrs
Maurizi v Information Comr
Ministry of Justice v Information Comr (EA/2020/0136) (unreported) 25 March 2021,
Office of Communications v Information Comr
R v Montila
R (Evans) v Attorney General
R (Office of Communications) v Information Comr
RS v Information Comr
University and Colleges Admissions Service v Information Comr
The following additional cases were cited in argument or referred to in the skeleton arguments:
Amin v Information Comr
Cabinet Office v Information Comr
Department for the Environment, Food and Rural Affairs v Information Comr
Department of Health v Information Comr
Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services) [
GW v Information Comr
Helstrip v Information Comr (EA/2012/0201) (unreported) 29 January 2013,
Notting Hill Finance Ltd v Sheikh
Office of Communications v Information Comr (EA/2006/0078) (unreported) 12 December 2012,
Secretary of State for the Home Department v Information Comr
APPEALS from the First-tier Tribunal (General Regulatory Chamber)
By a decision dated 29 March 2019 the Information Commissioner rejected a complaint by the requester, Brendan Montague, about the refusal of the Department for International Trade to disclose certain information requested under the Freedom of Information Act 2000 and upheld the department’s refusal of disclosure on the basis of certain of the exemptions from disclosure provided by the 2000 Act, including section 27 (international relations) and section 35 (formulation of government policy).
The requester appealed. The First-tier Tribunal (General Regulatory Chamber) ordered disclosure of limited further information but, in relation to the main substantive material sought by the requester, concluded that the balance of the public interest narrowly favoured maintaining the exemptions in sections 27 and 35.
Pursuant to permission granted by the Upper Tribunal (Upper Tribunal Judge Wright) the requester appealed and the...
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Montague v The Information Commissioner and Department for International Trade
...GIA ADMINISTRATIVE APPEALS CHAMBER UA-2020-000325- GIA (previously GIA -1640-2020 and GIA -1644-2020) NCN : [2022] UKUT 104 (AAC) On appeal from the First-tier Tribunal (General Regulatory UA-2020-000324- GIA Mr Brendan Montague Appellant –v– The Information Commissioner 1st Res......