Supreme Court refers question of public interest in disclosure about mobile phone masts to ECJ

29 January 2010 by Rosalind English

Office of Communications v Information Commissioner [2010] UKSC 3

SC (Lord Hope (Deputy President), Lord Saville, Lady Hale, Lord Mance, Lord Collins) January 27 2010

Article 4(2) of the European Directive 2003/4 imposes a duty to disclose environmental information. The Environmental Regulations were passed in 2004 to give effect to the Directive, the duty being contained in Regulation 12.. There are a number of different exceptions to this duty, one of which is the public safety exception in reg 12(5)(a), and another the intellectual property rights exception in reg. 12(5)(c).

The information commissioner had ordered that the respondent (OFCOM) disclose information as to the precise location of mobile telephone base stations in the United Kingdom. The Information Tribunal had dismissed OFCOM’s appeal against the order, finding that although disclosure fell within the scope of the two exceptions under 12(5)(a) and (c), both were outweighed by the public interest in disclosure.

Finally, the tribunal refused to accept OFCOM’s submission that it should consider the potential adverse effects identified in respect of each of the exceptions and weigh them in combination as against the public interest in disclosure. While the Administrative Court took the same view as the Tribunal on that point, the Court of Appeal reached the opposite conclusion, applying the domestic principle of statutory construction whereby the singular included the plural unless the contrary intention appeared. The appellant commissioner appealed against this decision, and the question before the Supreme Court was whether each exception was to be addressed separately, by considering whether the interest served by it was outweighed by the public interest in disclosure, or whether the interests served by different exceptions could be combined and then weighed as a whole against the public interest in disclosure.

HELD:

The court was divided on the issue, favouring the Court of Appeal’s approach by a majority of three to two. All members were, however, agreed that in order to ascertain the answer under domestic law, it was necessary to know the answer to the equivalent question posed under Directive 2003/4, that being the Directive to which the Regulations gave effect. Because the answer was not obvious the matter would be referred to the European Court of Justice. The question referred was, where a public authority held environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under art.4(2) of the Directive, but would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, whether the Directive required 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 members’ thinking was impressed by a number of considerations. Each took as his approach the general guidance given in recital 16 of the Directive, and the majority pointed to the references in art.4(2) to the “particular case” and to weighing “the public interest served by disclosure” against “the interest served by the refusal” as supporting the view that all the facets of the public interest in disclosure went into one side of the scales and all the aspects of the interests served by refusal went into the other. The minority, on the other hand, felt that each exception appeared as a separate head, serving separate interests and requiring separate consideration.

Question referred to ECJ

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