Office of Communications, R (on the application of) v Information Commissioner

Under the Environmental Information Regulations 2004, disclosure is the general rule and exceptions must be interpreted restrictively. A public authority may refuse disclosure only where an exception applies and the public interest in maintaining that particular exception outweighs the public interest in disclosure. Adverse effects on intellectual property rights are a balancing factor, not an absolute bar. Where several exceptions are engaged, the public interest must be assessed separately for each exception.

Ofcom appealed under section 59 of the Freedom of Information Act 2000, as applied by regulation 18 of the Environmental Information Regulations 2004, against an Information Tribunal decision upholding an order requiring disclosure of a national dataset concerning mobile-phone base stations.

The dataset was environmental information. Ofcom relied principally on exceptions concerning public safety and intellectual property rights. The central issues were whether disclosure involving possible infringement of intellectual property rights could nevertheless be required, and whether the public-interest balancing exercise had been conducted lawfully.

1. The appeal was dismissed. The tribunal had lawfully upheld the order requiring disclosure.
2. Regulation 5 of the Environmental Information Regulations 2004 imposes a duty to disclose environmental information. The duty does not authorise conditions or restrictions on use after disclosure. Material may therefore be in the public’s hands subject to surviving private-law intellectual property rights.
3. Adverse effects on intellectual property rights are not an absolute bar. They are a factor under regulation 12(5)(c) to be weighed against disclosure. The public interest may override those rights, although disclosure does not make them wholly valueless.
4. Under regulation 12(1)(b), the public interest in maintaining the particular exception must be weighed against the public interest in disclosure. Regulation 12(2) creates a presumption in favour of disclosure, and exceptions require restrictive interpretation.
5. Each exception must carry its own justification. Public-interest factors arising naturally from one exception cannot be transferred and aggregated to strengthen another exception.
6. The tribunal was entitled to regard disclosure of the names of mobile-network operators as capable of serving public participation in environmental debate and research.

The appeal was dismissed.

1. High Court (Administrative Court) — Ofcom’s appeal under section 59 of the Freedom of Information Act 2000 was dismissed.
2. Information Tribunal — On 4 September 2007, the Tribunal upheld the disclosure order, though on different grounds from the Commissioner.
3. Information Commissioner — On 11 September 2006, the Commissioner issued a decision notice requiring disclosure.