The Supreme Court in Office of Communications v Information Commissioner [2010] UKSC 3 has made a reference to the European Court of Justice ("European Court") in relation to the Environmental Information Regulations 2004 ("EIR"). The question for the European Court relates to the correct approach to the application of the public interest test where a public authority relies on more than one exception under the EIR to withhold information. Specifically, the issue is whether the public interest arguments raised in favour of different exemptions should be aggregated and weighed cumulatively in the balance against the public interest in favour of disclosure.

Key points

  • The case raises an important issue about the correct approach to disclosure exceptions under the EIR, where more than one exception is relied upon but the public interest in each exception taken in isolation would not be sufficient to outweigh the public interest in disclosure.
  • Should the European Court determine that it is correct to adopt the cumulative approach, this would increase the likelihood of public authorities being able to demonstrate that the public interest in disclosure is outweighed in a particular case. This would be good news for third parties who are required to provide environmental information to public authorities and do not want that information to be disclosed.
  • The European Court's decision will also influence the approach to the application of the public interest test in cases under the Freedom of Information Act 2000.

Background

A request was made to Ofcom for information on the exact location and grid references of mobile telephone base stations in the UK. Ofcom refused the request, relying on 2 exceptions, and the requester complained to the Information Commissioner, who ordered disclosure. The Information Tribunal upheld that order, finding that although the exceptions relied upon were engaged, the public interest in disclosure should prevail. The tribunal's decision was appealed to the Administrative Court, where Ofcom argued that the tribunal had adopted the wrong approach to the public interest test because it had failed to consider the aggregated public interest arguments supporting the exceptions relied on. The appeal was dismissed by the Administrative Court but subsequently allowed by the Court of Appeal, who agreed with Ofcom's proposed approach to the public interest test.

The appeal has now reached the Supreme Court, which decided that the issue depends on the interpretation of the relevant provisions of Directive 2003/4/EC (which the EIR implement) and therefore referred the issue to the European Court pursuant to Article 267 of the Treaty on the Functioning of the European Union (formerly Article 234 of the EC Treaty).

The duty to disclose environmental information

The EIR impose a general duty on public authorities to disclose environmental information in response to a request. The duty is subject to a number of exceptions. In this case, Ofcom relied on the exceptions in regulation 12 (5) (a) (where disclosure would adversely affect public safety) and 12 (5) (c) (where disclosure would adversely affect intellectual property rights).

All exceptions under the EIR are subject to the public interest test, which requires public authorities to assess whether "in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information." There is a presumption in favour of disclosure and the Directive makes clear that exceptions are to be interpreted restrictively.

The Tribunal's decision

The tribunal considered each of the exceptions relied on by Ofcom in turn, weighing for each exception separately the public interest arguments in favour of non-disclosure against those in favour of disclosure.

Public safety

Ofcom contended that if the precise location of mobile telephone base stations were released, this would facilitate criminal activity and adversely affect public safety. Although it accepted that disclosure would increase the risks to some degree, the tribunal decided that the balance of the public interest favoured disclosure, both because of the general importance of allowing access to environmental information and the specific importance of the information on base stations for epidemiological purposes to the public.

Intellectual property

Ofcom argued that both it and the companies that had supplied the information to it enjoyed database rights and arguably copyright in relation to the information. Although the tribunal conceded that such rights might exist, it considered nevertheless that the greater public interest lay in disclosing the information.

Can exemptions be aggregated?

The tribunal rejected as "unworkable" and "nonsensical" Ofcom's argument that it should have considered all of the public interest arguments supporting non-disclosure together and balanced these as a whole against the public interest in disclosure.

The Administrative Court also rejected Ofcom's approach in a judicial review of the tribunal's decision, finding that the relevant wording of the EIR and the Directive supported the view that the exceptions and the public interest arguments relating to them are to be considered one at a time.

Court of Appeal

The Court of Appeal, however, took a different view and agreed with Ofcom's approach to the application of the public interest test. It applied the domestic principle of statutory construction, pursuant to which the singular includes the plural, unless the contrary intention appears. The Court therefore concluded that references to "the public interest in maintaining the exception" were to be read as meaning "the public interest in maintaining the exception or exceptions". It also found that Article 4(2) of the Directive, taken with the relevant recital, supported this interpretation. The Court disagreed with the tribunal's view that the aggregate approach would be "unworkable" and "nonsensical", stating that it would be "surprising if the Directive or EIR required disclosure in a case where the overall public interest favoured non-disclosure."

The Supreme Court – interpreting the Directive

In his short judgment announcing the making of the reference, Lord Mance reported that the members of the Supreme Court favoured the Court of Appeal's approach by a majority of three to two. All members had considered in detail Article 4(2) and Recital 16 of the Directive. The majority cited Article 4(2) of the Directive and references to "the particular case" and to weighing "the public interest served by disclosure" against "the interest served by the refusal" as supporting the view that all aspects favouring the public interest in disclosure went to one side of the scales, with all aspects favouring non- disclosure going to the other side of the scales.

The minority considered that as each exemption appeared as a separate head, serving separate interests, each required separate consideration. All members agreed that as the answer was not clear-cut, the matter should be referred to the European Court to determine the correct approach under the Directive, since the EIR are intended to implement that Directive and mirror its provisions.

Comment

If the ECJ agrees with the interpretation of the majority of the Supreme Court (and the Court of Appeal), the result will be to require public authorities to consider carefully all aspects of the public interest that would be served by withholding environmental information, even where these public interest arguments support a number of different and unrelated exceptions. As Lord Mance observed, on Ofcom's case a public authority could refuse to disclose information despite having found that the public interest in any individual exception relied on is insufficient to outweigh that in disclosure, provided that the cumulative public interest is sufficient to do so. In other words, Ofcom's approach would give public authorities a further opportunity to resist disclosure.

Pending the European Court's decision on the reference, it is to be assumed that the Information Commissioner and tribunal will proceed on the basis of the Court of Appeal's judgment and adopt the aggregate approach. Indeed, there have already been decisions in which that approach has been adopted – including cases under the Freedom of Information Act. This demonstrates that the impact of the European Court's conclusion will not be limited to cases involving requests for environmental information.