In a recent case involving High Speed Two Limited (HS2), the company responsible for the government’s new high-speed rail route between London and Birmingham, the First-tier Tribunal (Information Rights) (FTTIR) commented that where two different qualified exemptions under the Freedom of Information Act (FOIA) were engaged, it may be possible to aggregate the public interest factors under each exemption to state that the overall public interest was against disclosure.
The FOIA allows public authorities to refuse disclosure of information requested under it if one or more of the exemptions contained in the FOIA are engaged. Some of these exemptions are absolute, while others are qualified. Where a qualified exemption applies, the public authority does not have an automatic right to non-disclosure, but must instead consider whether the public interest in keeping the information confidential is greater than the public interest in disclosing the information.
In the recent case of Ian Helstrip v Information Commissioner and HS2 Ltd (EA/2012/0201), the FTTIR considered whether in a situation in which multiple qualified exemptions were engaged, but where no individual exemption in itself warranted maintaining confidentiality, the FTTIR should aggregate the various factors to create a 'composite basket' of factors favouring non-disclosure to be weighed against the advantages said to be likely to result from disclosure.
The case involved an application for details relating to the 'exceptional hardship scheme' operated by HS2 for those homeowners affected by the HS2 rail line. HS2 refused to disclose this information on the grounds that it would engage two qualified exemptions by causing prejudice to the effective conduct of public affairs under section 36(2)(c) FOIA and commercial interests under section 43(2) FOIA. HS2 believed that the public interest favoured non-disclosure under both qualified exemptions.
In its submissions, HS2 argued that if the FTTIR considered the qualified exemptions under both section 36 and section 43 were engaged and that the public interest was balanced in favour of disclosure under both exemptions when considered separately, the court should aggregate the public interest factors under both of the exemptions and consider whether, overall, the public interest favoured non-disclosure. In its arguments HS2 relied on a decision of the European Court of Justice (Case C-71/10  2 Info LR), which established that it is permissible for a tribunal to take into account, cumulatively, a number of available grounds for refusal of disclosure of information requested under the Environmental Information Regulations 2004, a regime similar to the FOIA regime that applies to information relating to the environment.
In the HS2 case the FTTIR stated that it was not required to rule on this point. On the specific facts of the case, the FTTIR found that section 36 was engaged but the public interest was in favour of disclosure, whereas section 43 was not held to have been engaged. However, the FTTIR also stated that it would 'be inclined' to accept HS2’s argument for aggregation. It went on to state that, in this case, even if the public interest factors in favour of maintaining the section 36 exemption were aggregated with those in favour of maintaining the section 43 exemption, the public interest would still nevertheless favour disclosure.
The FTTIR’s comments are of interest because they suggest that where multiple qualified exemptions are engaged in a particular case this ought to increase the likelihood that a public authority would be able to resist non-disclosure of information by aggregating the various public interest factors favouring non-disclosure.