Office of Communications v The Information Commissioner

This appeal concerns the correct approach to requests for environmental information where a public authority relies upon more than one exception under the Environmental Information Regulations 2004 (in particular regulation 12(5)(a) on public safety and regulation 12(5)(c) on intellectual property). The central legal question is whether the interests served by different exceptions may be combined and weighed together against the public interest in disclosure, or whether each exception must be addressed separately in the public interest balancing exercise.

The Information Tribunal and the Administrative Court treated each exception separately and concluded that, although disclosure would have some adverse effects for each exception, those adverse effects did not outweigh the public interest in disclosure. The Court of Appeal held that the interests underlying separate exceptions may be aggregated when carrying out the balancing exercise and so allowed the arguing of combined weight against the public interest. The Supreme Court was divided: a majority considered that the Directive and its recital permit cumulative weighing of interests, while a minority considered each exception should be weighed separately. Because the question requires interpretation of Directive 2003/4/EC, the Supreme Court referred the question to the Court of Justice under article 267 TFEU for a preliminary ruling.

Background and facts. The request concerned the precise grid references of mobile phone base stations as held on the Sitefinder database maintained by the Office of Communications (Ofcom). The Sitefinder website showed approximate locations but not precise positions. An Information Manager for Health Protection Scotland requested precise grid references for epidemiological purposes. Ofcom refused; the Information Commissioner ordered disclosure. The Information Tribunal upheld the order for disclosure after considering the relevant exceptions under the Environmental Information Regulations 2004 and the Directive on access to environmental information. Ofcom appealed.

Nature of the claim and relief sought. The appeal to the Supreme Court concerned the correct legal test for balancing public interest in disclosure against the various exceptions relied on by a public authority. The Information Commissioner, as appellant, sought the Court to uphold the approach that each exception should be considered and weighed separately.

Procedural history. The Tribunal ordered disclosure; the Administrative Court ([2008] EWHC 1445 (Admin)) followed the Tribunal on the approach taken; the Court of Appeal ([2009] EWCA Civ 90) took the opposite view and allowed aggregation of interests underpinning different exceptions. The matter was brought to the Supreme Court on the single point of law whether separate exceptions may be cumulated for the balancing exercise.

Issues framed by the court. (i) Whether, under Directive 2003/4/EC (and thus the Regulations), the interests served by separate exceptions (article 4(2)(b) public security and article 4(2)(e) intellectual property in the present case) may be cumulated and weighed together against the public interest in disclosure. (ii) How recital (16) and the general principle that exceptions should be interpreted restrictively inform that question.

Court’s reasoning. The Supreme Court considered recital (16) and the text of the Directive. The majority viewed the Directive as permitting aggregation of the various interests served by different exceptions when carrying out the public interest balancing, because the public interest in disclosure forms one side of the scales and it is coherent to place all interests justifying refusal on the other side. The minority regarded each exception as a discrete head serving separate interests which must be weighed separately against the public interest, and they considered cumulation would produce illogical and unworkable results in many cases. The Court concluded that the point could not be resolved without authoritative interpretation of the Directive and accordingly made a reference to the Court of Justice under article 267 TFEU. The Supreme Court therefore did not finally determine the substantive appeal but sought a preliminary ruling on the interpretative question.

Wider implications. The Court noted the importance of the question for the consistent application of the Regulations and the Directive and that the outcome may require remittal to the Information Tribunal depending on the Court of Justice’s ruling.

The Supreme Court referred to the Court of Justice of the European Union under article 267 TFEU the question whether, under Directive 2003/4/EC, the interests served by separate exceptions may be cumulated and weighed together against the public interest in disclosure. The Court was divided: a majority considered aggregation permissible, while a minority considered each exception must be weighed separately. Because the answer requires interpretation of the Directive, the matter was referred for a preliminary ruling rather than finally resolved by this Court.

Information Tribunal ordered disclosure; Administrative Court ([2008] EWHC 1445 (Admin)) took the same approach as the Tribunal; Court of Appeal reversed ([2009] EWCA Civ 90) holding that separate exception interests can be aggregated; Supreme Court ([2010] UKSC 3) referred a preliminary question to the Court of Justice under article 267 TFEU.