On 20 February 2009, the Court of Appeal handed down its judgment in the case of Ofcom v Information Commissioner [2009] EWCA Civ 90. This was the first case under the Environmental Information Regulations 2004 (the “EIR”) (which implemented Directive 2003/4/EC (the “Directive”)) to be heard by the Court of Appeal.  

The case concerned a request that had been made to OFCOM by the Information Manager for Health Protection Scotland (an arm of the National Health Service) for information about the location, ownership and technical attributes of mobile phone masts to be disclosed in searchable format.   

OFCOM resisted disclosure on the basis that to do so would prejudice both public safety (by identifying mast locations to criminals) and the intellectual property rights of the mobile network operators (i.e. the database rights in the information). OFCOM relied on Regulation 12(5) of the EIR which provides that a public authority may “refuse to disclose information to the extent that its disclosure would adversely affect (a) international relations, defence, national security or public safety … (c) intellectual property rights … “.

The Information Tribunal (the “Tribunal”) heard the case at first instance.   The Tribunal looked at the exceptions under Regulation 12(5)(a) and Regulation 12(5)(c) separately (rather than aggregating all of the public interest factors against disclosure).  It found that both exceptions were engaged but that in each case the public interest in disclosing the information outweighted the public interest in maintaining the exception. 

In particular, the Tribunal considered that there was a strong public interest in the information being disclosed as it would benefit epidemiological research into the effects of mobile phone mast radiation on the health of the public.  As such, it was held that the information should be disclosed.

OFCOM appealed to the Court of Appeal where the following issues fell to be determined:

1.       Whether the Tribunal had erred by looking at each applicable exception separately and declining to consider whether the aggregate public interest in maintaining the exceptions outweighed the public interest in favour of disclosure.
The Court of Appeal found that exceptions were to be considered together rather than separately and the Tribunal was wrong in its approach to the public interest balancing test.  The matter was remitted to the Tribunal to reconsider the public interest balance in accordance with the approach laid down by the Court.
2.       Whether the Tribunal had erred by taking into account, as an aspect of the public interest in disclosure, the ‘benefit’ arising from the use of the information for epidemiological research even though such use would be in breach of the intellectual property rights of the mobile network operators.
The Court of Appeal upheld the Tribunal’s approach and found that the legislative scheme involved a weighing of pros and cons, with a presumption in favour of disclosure and in the context of a strong legislative policy of promoting access to, and dissemination of, information. Where use of information in breach of intellectual property rights had beneficial as well as adverse consequences, the proposition that only the adverse consequences could be taken into account ran wholly counter to that scheme.
3.       Whether the Tribunal had been entitled to find that the public interest in maintaining the exception in Regulation 12(5)(c) of the EIR did not outweigh the public interest in disclosing the names of the mobile network operators as distinct from the disclosure of the remainder of the requested information.
The Court of Appeal held that it had properly been open to the Tribunal to find that the public interest had extended to disclosure of the names of the operators. The public interest facts referred to in the Directive, namely, a greater awareness of environmental matters, a free exchange of views, more effective participation in environmental decision-making and a better environment, were all broad and intangible in nature and did not depend upon direct evidence linking disclosure of the information with specific benefits.
The Information Commissioner has appealed against the Court of Appeal’s finding as to the application of the public interest balancing test. This test lies at the heart of not only the EIR but also the Freedom of Information Act 2000. The case will be heard in the Supreme Court by Lord Hope, Lord Saville, Baroness Hale, Lord Mance, Lord Collins on 17 November 2009.
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