Office of Communications v The Information Commissioner

Where environmental information engages several exceptions to disclosure, the meaning of Directive 2003/4/EC determines whether the interests protected by those exceptions may be combined before being weighed against the public interest in disclosure. The answer was neither obvious nor settled by the Directive’s requirement that exceptions be interpreted restrictively.

The Supreme Court therefore referred the question to the Court of Justice. It did not decide whether each exception requires a separate balancing exercise or whether all protected interests may be weighed cumulatively.

An Information Manager requested the precise grid references of mobile telephone base stations held by the Office of Communications. The Information Commissioner ordered disclosure. The Information Tribunal upheld that order after separately balancing the public interests protected by the public-safety and intellectual-property exceptions in regulations 12(5)(a) and 12(5)(c) of the Environmental Information Regulations 2004.

The Administrative Court, [2008] EWHC 1445 (Admin), agreed that the interests could not be aggregated. The Court of Appeal, [2009] EWCA Civ 90, held that they could. On appeal, the Supreme Court had to determine whether Directive 2003/4/EC required separate balancing or permitted the cumulative weighing of interests protected by several exceptions.

1. Question referred to the Court of Justice. The Supreme Court unanimously held that the domestic regulations were intended to reproduce the relevant exceptions permitted by Directive 2003/4/EC. The domestic issue therefore depended upon the Directive’s proper interpretation. Because the answer was necessary to the decision and was not obvious, the Court was required by article 267 of the Treaty on the Functioning of the European Union to make a preliminary reference (paras 3, 10 and 14–15).

2. All members accepted that exceptions to environmental-information disclosure must be interpreted restrictively. In every particular case the public interest served by disclosure must be weighed against the interest served by refusal. The dispute concerned whether “the interest served by the refusal” could comprise the combined interests protected by several exceptions (paras 11–13).

3. The provisional majority, by three members to two, favoured aggregation. It considered that the Directive requires attention to all factors relevant to the particular request rather than separate treatment of each exception. As every aspect of the public interest in disclosure enters one side of the balance, all interests adversely affected by disclosure may enter the other. Any overlap may require an allowance to prevent double counting (paras 10 and 12).

4. The provisional minority favoured separate balancing. Each exception protects a distinct interest and constitutes an alternative reason for refusal. An interest insufficient to outweigh disclosure under one exception could not sensibly be combined with another independently insufficient interest to create an overall justification for non-disclosure. This construction was also considered more consistent with the structure of article 4 and the Aarhus Convention (para 13).

5. The Court did not determine the appeal. It referred whether the Directive requires a further cumulative balancing exercise when several exceptions are engaged but none, considered separately, outweighs the public interest in disclosure. A negative answer would resolve the litigation; an affirmative answer would probably require remission to the Information Tribunal (paras 14–15).

1. United Kingdom Supreme Court — [2010] UKSC 3: unanimously referred the interpretative question to the Court of Justice and did not finally determine the appeal.
2. Court of Appeal — [2009] EWCA Civ 90: held that interests protected by separate exceptions could be aggregated and weighed together against the public interest in disclosure.
3. Administrative Court — [2008] EWHC 1445 (Admin): agreed with the Information Tribunal that the interests protected by separate exceptions should not be aggregated.
4. Information Tribunal — upheld the disclosure order, separately balancing the public-safety and intellectual-property exceptions under the Environmental Information Regulations 2004.
5. Information Commissioner — ordered disclosure of the requested base-station grid references.