Case Law >> Disclosing information

9th December 2011


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IEMA

LexisPSL's Colleen Theron and Deirdre Lyons discuss a European ruling on disclosure rules for local authorities

The issue of how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR) has been the subject of a European Court of Justice (ECJ) decision.

Most exceptions under the EIR are subject to a public interest test: the public interest in maintaining an exception has to be measured against the interest in disclosure.

But what happens where there are a number of exceptions in play? Does the local authority have to look at each exception in turn, assessing the public interest in maintaining that exception against the interest in disclosure? Or do they have to aggregate all the exceptions and assess the combined public interest against the public interest in disclosure?
The ECJ proceedings arose from a request by the information manager for Health Protection Scotland (HPS) to Ofcom for information under the EIR on the location of mobile phone bases.

Following publication of an independent report (the Stewart report), the government set up a website containing information provided voluntarily by mobile phone providers on the location of phone masts. However, the website only provides approximate locations of the masts and HPS wanted more exact details.

Ofcom refused to disclose the information for two reasons: it would be a security risk, as the bases included the police and emergency service radio networks, and it would infringe the intellectual property rights of the mobile network companies.

The Information Commissioner’s Officer (ICO) ordered Ofcom to disclose the information. Ofcom appealed to the information tribunal, but the appeal was rejected. The tribunal looked at the exceptions separately. It held that the public authority had to consider each element separately rather than weigh the aggregate interests.

Ofcom then appealed to the Court of Appeal. The court agreed with Ofcom that it should be allowed to aggregate the weight of the statutory exceptions to disclosure when balancing them against the public interest.

The Supreme Court agreed but recognised that the answer was unclear and depended on the construction of the EU Directive on public access to information (2003/4/EC). The matter was referred to the ECJ, asking it to confirm the Directive’s meaning.

It found that a competent authority may, when weighing the public interests served by disclosure against the interests served by a refusal to disclose, evaluate cumulatively a number of grounds for refusal.

Despite the aim of the EIR to promote disclosure, the practical effect of this decision will be that a public authority will be able to take into account not only a specific exception but the aggregation of interests served together by the exceptions to assess the public interest in disclosure.

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