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Advocate General Kokott has issued her opinion in a question referred to the CJEU about the availability of information on the position of mobile phone masts. In January 2010, the Supreme Court in Ofcom v The Information Commissioner [2010] UKSC 3, asked for a preliminary ruling as to how the public interest balancing test in the Environmental Information Regulations 2004 should be approached when two or more disclosure exceptions were engaged.
It asked:
“Under Council Directive 2003/4/EC, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure?”.
The Advocate General’s opinion can be found here, but putting it briefly, her answer was “yes”.
She argued that the additional restriction correctly applied the principle of proportionality: “if the recognised interests militating against disclosure were together to clearly outweigh the public interest served by disclosure, the disadvantages caused by the disclosure of environmental information would no longer be proportionate to the aims pursued.”
Analysis of the decision can be found on the FIOA blog, Panopticon blog, and CRITique.
