CASES TO KNOW - Department for Business and Trade (Respondent) v The Information Commissioner

Context

The Freedom of Information Act 2000 (‘FOIA’) creates a general right of access to information held by public bodies. This right, however, is subject to statutory exemptions. Such exemptions can be absolute or qualified, with qualified exemptions (‘QEs’) requiring a public interest test. 

In July 2025, Department for Business and Trade (Respondent) v The Information Commissioner (Appellant) raised significant commercial implications regarding the FOIA. In November 2017, journalist Brendan Montague sought information on post-Brexit trade groups from the Department for Business and Trade. The Department withheld disclosure, citing two QEs: s 27 (international relations) and s 35 (government policy). Subsequent appeals ultimately reached the Supreme Court.

Controversy

The central issue was whether, where multiple QEs apply, the public interest test in s 2(2)(b) FOIA should be applied independently to each QE or cumulatively across them. By a 3-2 majority, the Supreme Court endorsed the cumulative approach, preferring its suitability for public interest assessments. However, Lords Richards and Morgan dissented, warning that aggregations lacked statutory basis and could undermine transparency.

Commercial Implications

This ruling strengthens commercial certainty by confirming that s 2(2)(b) permits a cumulative assessment. Its effect is clearest in procurement: the disclosure of pricing or strategy is less likely, thus enhancing competition and bidder confidence. Beyond procurement, regulated sectors such as energy, defence, finance, and technology gain assurance that sensitive data shared with the government is better protected. Crucially, this could recalibrate negotiation dynamics, as firms are incentivised to share commercially valuable information, potentially increasing the State’s access to private expertise and data. The Oura Ring delivers a practical example of this: recent forensic analysis of the Gen 3 app shows user health and activity data stored across devices and cloud servers, highlighting privacy risks. Such examples highlight a broader concern that the government’s partnership with data-rich companies could restrict individuals from invoking the FOIA. 

Accordingly, transparency is further constrained. NGOs and journalists will face resistance, reflecting the dissent’s concern that aggregation dilutes accountability. Practically, this can result in a systemic shift against transparency, with recent data breaches, such as the 2025 Legal Aid Agency hack, evidencing the implications of weak government accountability. 

Overall, by reducing disclosure risks, this ruling is likely to increase the state’s access to valuable information, resulting in faster and more commercially informed policy decisions. However, it also signals the priority of commercial confidentiality at the expense of transparency. 

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BIBLIOGRAPHY

Legislation

• Freedom of Information Act 2000

  
  

Cases

• Department for Business and Trade v Information Commissioner [2025] UKSC 27

  
  

Articles

• M Stanković and others, ‘How Engaged Are You? A Forensics Analysis of the Oura Ring Gen 3 Application’ (2024) Intl J Info Sec doi:10.1007/s10207-024-00936-7

• The Guardian, ‘Legal aid hack: data from hundreds of thousands accessed’ (19 May 2025) https://www.theguardian.com/law/2025/may/19/significant-amount-of-personal-data-accessed-in-legal-aid-agency-data-breach-says-moj

  
  

Others Authorities

• Information Commissioner’s Office, FOIA Exemptions Guidance (ICO 2024) https://ico.org.uk/for-organisations/foi/guide-to-managing-an-foi-request/exemptions/