Montague v The Information Commissioner and Department for International Trade
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley,Judge Wright,Judge Church |
| Neutral Citation | [2022] UKUT 104 (AAC),[2022] UKUT 104 (AAC) |
| Subject Matter | Information rights - Freedom of information - public interest test,Information rights - Freedom of information - qualified exemptions,Three Judge Panel |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 05 May 2022 |
1
IN THE UPPER TRIBUNAL UA-2020-000324-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 Chamber)
Between: UA-2020-000324-GIA
Mr Brendan Montague Appellant
– v –
The Information Commissioner 1st Respondent
– and –
The Department for International Trade 2nd Respondent
UA-2020-000325-GIA
The Department for International Trade Appellant
– v –
The Information Commissioner 1st Respondent
– and –
Mr Brendan Montague 2nd Respondent
Before: Upper Tribunal Judge Wikeley
Upper Tribunal Judge Wright
Upper Tribunal Judge Church
Decision date: 13 April 2022
Decided after a hearing on: 20 & 21 September 2021
Further written submissions 16 February, 2 March and 15 March 2022
Representation (as in UA-2020-000324-GIA):
Appellant: Mr Christopher Knight and Dr Sam Fowles of counsel
1st Respondent: Mr Peter Lockley of counsel, instructed by the ICO
2nd Respondent: Mr Eric Metcalfe of counsel, instructed by the GLD
Montague -v- Information Commissioner and DIT [2022] UKUT 104 (AAC)
2
DECISION
The decision of the Upper Tribunal is to allow the appeal by Mr Montague but to
dismiss the appeal by the Department for International Trade from the decision
of the First-tier Tribunal dated 26 August 2020.
As a consequence of our decision, and pursuant to section 12(2)(a) and (b)(i) of
the Tribunals, Courts and Enforcement Act 2007, we set aside the First-tier
Tribunal’s decision in EA/2019/0154, dated 26 August 2020, and remit Mr
Montague’s appeal to be considered afresh by the First-tier Tribunal.
If possible, the First-tier Tribunal should have the same constitution as the First-
tier Tribunal whose decision we have set aside.
REASONS FOR DECISION
The principal questions of law raised by this appeal to the Upper Tribunal
1. The context of these two appeals concerns requests made by Mr Montague to
the Department for International Trade (“DIT”) about certain steps taken in the
period before the United Kingdom left the European Union (“Brexit”). However,
the primary appeal in these proceedings – Montague v Information Commissioner
and DIT, also referred to under file reference UA-2020-000324-GIA, raises two
legal issues of potential relevance to appeals under the Freedom of Information
Act 2000 (“FOIA”) more generally.
2. The first is 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”).
3. The second issue is 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 this issue is whether a public
authority’s decision on a request includes any later decision on review by it of its
initial decision refusing the request.
The Upper Tribunal’s decision on the principal questions of law (in summary)
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.
Montague -v- Information Commissioner and DIT [2022] UKUT 104 (AAC)
3
The factual context in which the principal questions of law arise
6. Mr Brendan Montague, the appellant in the primary appeal, is an investigative
journalist who made a FOIA request to the DIT. The context of that request, and
of these proceedings more generally, was the withdrawal of the United Kingdom
from the European Union and the particular significance given in public debates
about Brexit to the ability of the UK to negotiate and enter into its own trade deals.
7. Mr Montague made a FOIA request to the DIT in November 2017, seeking
information about the Trade Working Groups (“TWGs”) that were formed in the
run up to Brexit. The DIT responded in February 2018 providing limited
information, namely a list of countries that it was willing to confirm had
commenced TWGs and the names of those TWGs. It also released a list of senior
UK government representatives who had attended at least one TWG. The DIT
upheld its response following an internal review in March 2018.
8. Mr Montague then complained to the Information Commissioner. In December
2018, during the Commissioner’s investigation, the DIT confirmed it was content
to disclose further information. It disclosed that information, comprising 69
extensively-redacted documents, in March 2019 with a revised refusal notice. It
relied variously on section 27 FOIA (international relations), section 35 FOIA
(formulation of Government policy) and section 40 FOIA (personal data) as a
basis for withholding the redacted information. In some instances, it also relied
on section 27(4) FOIA to neither confirm nor deny whether requested information
was held.
9. On 29 March 2019, the Commissioner issued Decision Notice FS53733330,
upholding the DIT’s application of the exemptions. Mr Montague appealed to the
First-Tier Tribunal (“the FTT”). The FTT heard the appeal over four days in
December 2019 and February 2020, including hearing open and closed evidence
from Mr Alty (the DIT’s Director General: Trade Policy), as a witness on behalf of
the DIT, and open evidence from Mr Montague and four further witnesses on his
behalf.
10. The FTT gave a lengthy unanimous judgment, running to 121 paragraphs, in
which it upheld the Commissioner’s Decision Notice in relation to the main
substantive material sought by Mr Montague’s request, being the minutes of the
TWGs. The FTT agreed with the Commissioner that the balance of the public
interest narrowly favoured maintaining the exemptions at sections 27 and 35
FOIA. In relation to certain other and less detailed material (e.g. dates of
meetings, “bare agendas” (i.e. agendas in the usual sense of the word, being a
list of numbered headings of topics for discussion at a meeting, rather than more
detailed annotated agendas), plans for establishing further TWGs, and schedules
of forthcoming meetings) it found that the public interest favoured disclosure, and
allowed the appeal to that extent. The FTT also upheld the approach of the DIT
(as had been accepted by the Commissioner) to section 27(4) FOIA and section
40(2) FOIA and dismissed the appeal to that extent.
11. Mr Montague sought permission to appeal from the FTT, and in response to Mr
Montague’s appeal, the DIT sought permission to appeal out of time. On 16
October 2020, HHJ Shanks, who had presided at the FTT, refused Mr Montague
permission to appeal and refused an extension of time for DIT to appeal. Upper
Tribunal Judge Wright subsequently granted permission to appeal to both Mr
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