The Court of Appeal has considered an appeal by the Office of Communications (Ofcom) against a decision of the Information Commissioner and Information Tribunal under the Environmental Information Regulations 2004 (EIRS). The EIRS, which implement an EU Directive (2003/4/EC), are similar to freedom of information legislation in that they provide the public with a right to request information categorised as "environmental information" from public authorities (which under the EIRS can also include certain private sector organisations carrying out public functions).
The Court of Appeal looked at a decision to order disclosure information in relation to Ofcom's "Sitefinder" database. Sitefinder (see http://www.sitefinder.ofcom.org.uk/) displays the location of all cellular mobile base stations operated by the five major mobile networks in the UK and is compiled through data supplied on a voluntary basis by those network operators. The public can enter a postcode, street name or town after which a map showing the location of base stations in that area will be displayed.
In this case, the Information Manager for Health Protection in Scotland had requested certain environmental information under the EIRS to assist in research on electro magnetic radiation and public health. Ofcom appealed against the decision of the Information Commissioner and Information Tribunal that it must supply a full dataset which had been requested in "a text file, CS3 file, Access database or Excel spreadsheet" with additional information about names of specific operators, heights of radio masts, frequency range, transmitter power, types of transmission and national grid references for every UK site.
The exemptions under the EIRS relied on by Ofcom were those relating to national security/public safety (since some of the mobile sites served the police and emergency services) and also intellectual property rights (IPRs). Looking at the latter of these exemptions in particular, in Ofcom's view, disclosing the information requested would infringe the IPRs – primarily database rights - of the mobile network operators who owned and provided the data. This is a qualified exemption and so subject to a public interest test under the EIRs.
The specific issue that the Court of Appeal looked at was whether the exemptions should be looked at separately or together when determining the "public interest in disclosure". The Information Tribunal (in upholding the Information Commissioner's decision) had decided that the public interest in maintaining the security/safety and IPR exceptions did not outweigh the public interest in disclosure of the names of network operators with base station information. The Information Tribunal's decision however was enough to persuade one operator, T-Mobile, to subsequently withdraw from submitting further base station data to Sitefinder.
The Court of Appeal in rejecting Ofcom's appeal held that the EIRS exceptions should be considered together rather than separately when balancing the public interest for disclosure. The Court of Appeal observed that there was a presumption in favour of disclosure and where use of information which could potentially breach IPR rights had beneficial as well as adverse consequences, the argument advanced by Ofcom that only adverse consequences of the IPR infringement should be considered wholly contradicted the EIR's underlying purpose, which was noted to be greater awareness around environmental issues. Accordingly, no further evidence needed to be provided by the applicant connecting the information disclosure back to any particular specific benefit. Although the Court of Appeal has only ruled on interpretation of the legislation and has remitted the case back to Information Tribunal for a final decision, it stated that the Tribunal was "very likely" to reach the same conclusion that it had done so previously.
The case underlines the heavy burden on parties seeking to rely on qualified exemptions such as IPR under the EIRs (and also freedom of information). It seems that these are likely to be interpreted extremely narrowly in the face of the legislation's in-built public interest presumption in favour of disclosure.