DfT v Information Commissioner tribunal ruling strengthens FOIA transparency requirements

The First-tier Tribunal's decision in Department for Transport v The Information Commissioner ([2025] UKFTT 819 (GRC)) represents a significant development in Freedom of Information Act jurisprudence, particularly regarding the application of exemptions during periods of national crisis. Delivered on 8 July 2025 by Judge Harris and fellow members, the ruling has established important precedents for governmental transparency obligations.

The appeal arose from Matt Gorman's information request concerning the Department for Transport's decision to classify South Africa as a 'red list' country in November 2021 during the COVID-19 pandemic. The DfT initially withheld the requested information, citing exemptions under sections 27 (international relations) and 35 (ministerial communications) of FOIA 2000. The Information Commissioner upheld this position, prompting Gorman's tribunal appeal.

Section 27 analysis

The tribunal's examination of the international relations exemption proved particularly instructive. The DfT failed to demonstrate that disclosure would likely prejudice UK international relations, as required under section 27. The tribunal emphasised that mere assertions of potential diplomatic risks were insufficient without robust evidence demonstrating how disclosure could adversely impact relations with other states.

This finding reinforces the established principle that public authorities must provide concrete evidence of likely prejudice rather than relying on speculative concerns. The judgement suggests courts will scrutinise section 27 claims more rigorously, particularly where the information concerns historical policy decisions.

Ministerial communications exemption

The tribunal's treatment of section 35 revealed greater complexity. Whilst acknowledging the legitimate need to protect confidential governmental discussions that shape policy, the tribunal noted that temporal factors significantly affect the exemption's application. As time passes and policy contexts shift, the weight afforded to confidentiality concerns diminishes, strengthening arguments for disclosure.

This temporal analysis provides valuable guidance for assessing section 35 claims, suggesting that the passage of time may erode the protective scope of ministerial communications exemptions.

Public interest considerations

The tribunal's public interest analysis proved decisive. It determined that transparency concerns, particularly given heightened scrutiny during the pandemic, outweighed the DfT's confidentiality arguments. The judgement recognised the fundamental importance of understanding governmental decision-making processes during public health crises and the necessity of restoring public trust through enhanced information access.

This balancing exercise demonstrates the tribunal's willingness to prioritise transparency where governmental decisions have significant public impact, especially during periods of crisis when public scrutiny intensifies.

Broader implications

The ruling extends beyond its immediate facts to establish important precedents for FOIA exemption applications. The decision signals potential judicial movement towards increased scrutiny of governmental decision-making, particularly during crisis periods when public authorities may seek to restrict information access.

The judgement may encourage more robust challenges to section 27 and 35 exemptions, requiring public authorities to provide stronger evidential foundations for withholding information. This could reshape how departments approach FOIA compliance, potentially leading to more proactive disclosure practices.

The temporal element introduced regarding section 35 exemptions offers practical guidance for assessing when ministerial communications may lose their protected status. This development could influence future disclosure decisions across government departments.

The Department for Transport v The Information Commissioner case underscores the continuing evolution of FOIA jurisprudence, particularly regarding the balance between governmental confidentiality and transparency obligations. The tribunal's emphasis on evidence-based exemption claims and temporal factors affecting ministerial communications protection provides valuable precedents for future information disclosure disputes.