Office of Communications v The Information Commissioner

Where several exceptions to disclosure apply under the Environmental Information Regulations 2004, the public-interest balance must ultimately be conducted in the round. The decision-maker may examine each exception separately, but must then weigh the cumulative public interest in maintaining the applicable exceptions against the public interest in disclosure, applying the presumption in favour of disclosure.

Disclosure does not authorise later use infringing third-party intellectual property rights. Nevertheless, beneficial consequences of such use may be considered on the disclosure side of the balance. The public interest may also support disclosure of operator identities without direct evidence of a specific research benefit.

Ofcom refused a request by Health Protection Scotland for a downloadable dataset identifying mobile phone base stations, including grid references and operator details. It treated the request as one under the Environmental Information Regulations 2004. The Information Commissioner ordered disclosure under section 50 of the Freedom of Information Act 2000, as applied by regulation 18 of the EIR.

The Information Tribunal found that the public-safety and intellectual-property exceptions were engaged, but that disclosure remained in the public interest. Laws LJ dismissed Ofcom’s further appeal in the Administrative Court in [2008] EWHC 1445 (Admin). Ofcom appealed, raising the proper method of balancing multiple exceptions, whether benefits from unlawful post-disclosure use could be considered, and whether the names of the mobile network operators should be disclosed.

1. Public-interest balance. Ofcom’s appeal succeeded on the first issue. Regulation 12(1) of the Environmental Information Regulations 2004 permits reliance on more than one exception. The reference to the public interest in maintaining the exception includes the public interest in maintaining all applicable exceptions. The balance must therefore be assessed cumulatively against the public interest in disclosure, having regard to all the circumstances. An exception-by-exception analysis may be a convenient first stage, but the decision-maker must also consider the matter in the round. The restrictive construction of exceptions and the presumption in favour of disclosure remain applicable.
2. Subsequent use and intellectual property. Disclosure under regulation 5(1) does not authorise later use of the information in breach of third-party intellectual-property rights. Regulation 5(6) disapplies laws preventing the act of disclosure itself, not laws governing subsequent use. The contemplated extraction or re-utilisation of the database would therefore be a prima facie infringement under the Copyright and Rights in Databases Regulations 1997.
3. That did not prevent the Tribunal from considering the beneficial consequences of post-disclosure use for epidemiological research. The EIR require adverse effects on intellectual-property rights to be considered, but their scheme also permits beneficial consequences furthering access to and dissemination of environmental information to be weighed on the disclosure side. The fact that use might infringe third-party rights did not automatically exclude that benefit from consideration.
4. Names of operators. The Tribunal was entitled to find a public interest in disclosing the names of the mobile network operators. The public-interest factors under the Directive are broad and intangible, and direct evidence linking disclosure to a specific benefit was unnecessary. The recommendation that operator names be included in environmental information, and their relevance to public debate and research, provided a sufficient basis.
5. The appeal was dismissed on the second and third issues. The matter was remitted to the Information Tribunal to reconsider the public-interest balance using the aggregate approach.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 90, the appeal was allowed on the proper cumulative approach to the public-interest balance, dismissed on the issues concerning post-disclosure intellectual-property infringement and operator names, and remitted to the Information Tribunal.
• Administrative Court: Laws LJ dismissed Ofcom’s further appeal in [2008] EWHC 1445 (Admin).
• Information Tribunal: On 4 September 2007, the Tribunal upheld the Information Commissioner’s order for disclosure, although on different grounds.
• Information Commissioner: On 11 September 2006, the Commissioner ordered Ofcom to disclose the requested information.