Mobile masts and grid references get to Europe

29 July 2011 by David Hart KC

Case C-71/10 Ofcom v. Information Commissioner, Court of Justice of the European Union: Read judgment

I posted previously on the Advocate-General’s opinion in March 2011, Office of Communications v. Information Commissioner, a reference from the UK Supreme Court. An epidemiologist working for the Scots NHS wanted the grid references of mobile phone masts. This was refused, and the case got to the Information Tribunal. It found that two exemptions in the Environmental Information Regulations were in play (public security and intellectual property rights), against which were stacked the public interest of the researcher, who wanted to explore any association between the location of the masts and possible health effects.

But the question was how to stack the exemptions: should one weigh each exemption against the public interest, or should one cumulate the exemptions and weigh their combined effect against the public interest?

Opinions differed on this, which is why it reached the Luxembourg Court. The Information Commissioner, the Tribunal, the Administrative Court, and 2 members of the Supreme Court preferred individual balancing, whereas the Court of Appeal and a majority of the Supreme Court opted for the cumulating approach.

Now the European Court of Justice, interpreting Directive 2003/4/EC on public access to environmental information, has gone cumulative, following AG Kokott’s opinion. As I pointed out before, this tends to make it easier to exempt information from disclosure; 50 grams of public interest outweighs 40 grams of public security, and then outweighs 40 grams of intellectual property, but it falls short if you add the latter two exemptions together.

The strongest argument in a finely-divided point of construction was that one cumulates the various elements of public interest on the other side of the balance as set out in the 1st recital of the Directive, and so it would be odd if you did not cumulate the exemptions. And in a somewhat anodyne judgment, the CJEU has agreed with the AG.

As I said, the issue arose in the context of epidemiological studies. An independent investigation was conducted by experts into the risks connected with mobile phones. Their report identified as matters of public interest the location of base stations. So the UK Government set up a website called ‘Sitefinder’ giving their location, using information voluntarily provided by mobile phone operators. You can search a map square, by inputting a postcode, town or street name, for information about the base stations within it. But the website only shows the approximate location in each square of each base station, and does not show either the precise location of the base station to within a metre or the vertical position of the base station (i.e whether it is at street level or on top of a structure or building). The difference between this publicly available information and the precise details needed by the epidemiologist led to this long drawn-out saga.

The CJEU has of course only decided the issue of principle. So the case has to go back to the domestic courts to apply the law, and decide whether the information is revealed.

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