In The Office of Communications v Information Commissioner and T-Mobile (UK) Limited (EA/2006/0078) the Information Tribunal upheld the Commissioner's decision to require Ofcom to publish information about mobile phone base stations. The Tribunal's decision, which is being appealed to the High Court, covers the following issues:
- whether the information sought was "environmental information" subject to the Environmental Information Regulations;
- whether the information related to "emissions";
- the exception for information where disclosure would adversely affect public safety (12(5)(a));
- the exception for information where disclosure would adversely affect intellectual property rights (12(5)(c)); and
- the exception for confidential commercial or industrial information (12(5)(e)).
Given the relatively low number of Tribunal decisions relating to the Regulations, the decision is of interest in terms of the Tribunal's approach to these issues and the application of the public interest test. It also demonstrates the difficulties that may arise for third parties who may not be subject to the Regulations themselves but who have submitted information to public authorities.
The information had been provided by the Mobile Network Operators ("MNOs") for use by Ofcom in producing its Sitefinder search engine. Sitefinder contains information on the location, ownership, and technical attributes of all mobile phone base stations in the UK. Members of the public can key in a postcode, town or street name and generate an image of a map covering the selected location. On the map is displayed a triangle representing each base station installed in that area. Clicking on the triangle reveals information about the base station. However, some information held on the database is not available to the public through such searches – in particular, it is not possible to ascertain the precise location of the base station. An additional limitation is that information may only be obtained on a search by search basis – there is no facility to obtain information at a regional or national level, without carrying out multiple searches.
The request for information at the heart of this case was for all information held on the database, including precise grid references.
The first issue was whether the request was for "environmental information" within the scope of the Regulations. There were 2 separate questions. The first was whether radio waves emanating from a base station fell within the definition of "factors, such as substances, energy, noise, radiation or waste…emissions, discharges and other releases into the environment, affecting or likely to affect…the environment, such as air and atmosphere…" (Regulation 2(1) (a) and (b)). Detailed submissions were made on this issue by T-Mobile, which had successfully applied to join the appeal and represented the interests of other MNOs throughout. It argued for a restrictive interpretation of "emissions", submitting that it was intended to apply to polluting substances released into the atmosphere rather than electro-magnetic waves. Ultimately, the Tribunal found that on the plain and natural meaning of the words, the information sought did fall within the relevant part of the definition.
The second question was whether the names of the MNOs were environmental information. Ofcom argued that they were not, on the basis that they did not relate to "the state of the elements of the environment" or factors that may affect those elements. The Tribunal disagreed, having regard to the purpose of the Directive behind the Regulations, namely to achieve "a greater awareness of environmental matters, a free exchange of views [and] more effective participation by the public in environmental decision making." In the Tribunal's view, public participation would be difficult if information as to the identity of those creating emissions did not fall within the scope of the Regulations.
T-Mobile presented significant evidence about vandalism and the theft of materials from base station sites. The Tribunal found that disclosure of the information would increase the risks to public safety in that it would assist criminals to locate base stations. However, the public interest in disclosure prevailed. The public interest in disclosure arose from concerns about the potential health implications of mobile phone base stations which had given rise to the development of the Sitefinder database in the first place, following an enquiry in 2000. The report that followed this enquiry had included a recommendation that information on the precise location of stations should be made publicly available.
It was common ground that the information sought was protected by database right and copyright. The Tribunal held that the threshold for establishing an adverse effect on intellectual property for the purposes of the exception required more, in terms of actual harm to commercial or other interests, than a technical infringement of the rights in question. It therefore considered the appellants' arguments on the types of harm that disclosure would allegedly cause.
The Tribunal accepted that disclosure of the whole database would destroy the MNOs' ability to licence the use of their information to their commercial advantage. Further, it would enable each MNO to obtain full details of its competitors' networks. Disclosure would also enable landowners to establish which locations were likely to be of particular value to the MNOs for the purposes of filling gaps in coverage, meaning that they could charge higher rents. The combination of these factors meant that there would be a sufficient adverse effect on intellectual property rights to trigger the exception. However, the Tribunal went on to hold that the public interest in maintaining the exception did not outweigh the public interest in disclosure.
Under Regulation 12(9), certain exceptions (including the exception for confidential information) may not apply to information relating to emissions. Because the Tribunal had already concluded that the information sought related to emissions, the confidentiality exception could not apply. Even if this had not been the case, the Tribunal concluded that the exception could not be engaged because the information did not have the necessary quality of confidence. This was because the MNOs had provided some of the information sought to local authorities, without any conditions or restrictions on its use. Further, it was possible for anyone prepared to put in the necessary time and effort to obtain the aggregate information by performing multiple searches using the database. The information sought was therefore in the public domain.
This is a good example of a case in which the interests of third parties were at the heart of the dispute. As a result of the complaint to the Information Commissioner and the subsequent appeal, the MNOs stopped providing up to date information on base stations to Ofcom and this may well continue to be the position pending the appeal to the High Court. The case is also interesting in that it demonstrates the Tribunal's willingness to give a broad interpretation to the definition of environmental information. This had practical implications for the appellants – if they had succeeded in their argument that the FOIA rather than the EIR applied to the names of the MNOs, they would have been able to rely on the FOIA exemption in relation to commercially sensitive information, since there is no provision in FOIA equivalent to Regulation 12(9).