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On 27 January the Court (Lords Hope, Saville, Mance, Collins and Lady Hale) handed down judgment in Ofcom v The Information Commissioner ([2010] UKSC 3), the case concerning disclosure of information about mobile phone masts in the UK which has been sought for environmental health reasons. The information sought concerns the location and technical specification of the masts, and following a freedom of information, the Information Commissioner had obtained a disclosure order against the regulator Ofcom.  

Background

In 2000, an independent report (the “Stewart Report“) concluded that a precautionary approach to the radiation caused by mobile phones should be taken, until more detailed information was available. As a result of the Stewart Report, a website was set up by the Government containing information provided voluntarily by mobile phone providers as to the location of phone masts. However, the website only provides the approximate location of the masts. The current proceedings arose from a request for information on the exact location of these mobile phone masts by an Information Manager at the Scottish branch of the NHS.
The Proceedings Below
When Ofcom appealed against the disclosure order, the Information Tribunal held that there was a public interest in disclosing such information, which should prevail over concerns raised through Ofcom by various mobile phone operators about security (for example, the risk of data falling into the hands of criminals and hence increasing the risk of terrorism) and disclosure of confidential intellectual property. In advancing these two arguments, Ofcom relied on two exceptions to the duty to disclose contained in the Environmental Information Regulations 2004 (“EIRs”): 12(5)(a) on public safety, and 12(5)(c) on intellectual property. However, the Information Tribunal dismissed Ofcom’s argument that under the EIRs it was obliged to weigh up the public interest in favour of disclosure, against all exceptions considered together, holding instead that each exception had to be assessed separately and not in combination. The decision was upheld by the High Court; however it was overturned by the Court of Appeal, who held that the EIRs should be interpreted in light of European Directive 2003/4/EC (which implemented the Regulations and the UK’s obligation on public access to environmental information) (the “Directive”), and that the Information Tribunal was therefore obliged to conduct a general public interest balancing test, i.e. considering the collective weight of both of Ofcom’s arguments together.
Judgment
 
Lord Mance delivered the single judgment of the Court. His Lordship explained that whilst the majority (3:2) of the Supreme Court would have upheld the Court of Appeal’s judgment, the Court had held, unanimously, that because different members of the Court held different views on the construction and correct interpretation of both the EIRs and the Directive, and because the answer was not obvious and raised an issue of general principle, the Court was under a duty to refer the question to the ECJ under Article 265.
The exact question to be referred to the ECJ is as follows:
If the ECJ decides that the Directive does not require a further balancing exercise, the litigation will be resolved, and Ofcom will be obliged to provide details of the exact location of mobile phone masts. If the ECJ does require that the one further hurdle of interest be met, Lord Mance stated that the matter is likely to have to be referred back to the Information Tribunal for further consideration. So it seems that a good deal more patience is going to be required before the legal issues, and then ultimately the important environmental health issues, can be determined.