JUDGMENT
Office of Communications (Respondent) v The
Information Commissioner (Appellant)
before
Lord Hope, Deputy President
Lord Saville
Lady Hale
Lord Mance
Lord Collins
JUDGMENT GIVEN ON
27 January 2010
Heard on 17 November 2009
Appellant Respondent
Clive Lewis QC Dinah Rose QC
Akhlaq Choudhury Jane Collier
Charlie Potter
(Instructed by the Solicitor
to the Information
Commissioner’s Office)
(Instructed by the Solicitor
to the Office of
Communications)
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LORD MANCE
This is a judgment of the Court
Introduction
1. This appeal concerns the correct approach in law to a request for
environmental information when the public authority holding the information
relies upon more than one of the exceptions to the duty to disclose such
information. Is each exception to be addressed separately, by considering
whether the interest served by it is outweighed by the public interest in
disclosure? Or can the interests served by different exceptions be combined and
then weighed against the public interest in disclosure?
2. Domestically, the presently relevant exceptions are those provided by
regulations 12(5)(a) (public safety) and 12(5)(c) (intellectual property) in The
Environmental Information Regulations 2004 (S.I. 2004 No. 3391). However,
the Regulations were made under the European Communities Act 1972 to
implement the United Kingdom’s obligation to give effect to Directive
2003/4/EC of 28 January 2003 on public access to environmental information.
In the Directive, the relevant exceptions are found, in only slightly different
terms, in article 4(2)(b) and (e). The Directive was intended to be consistent
with the Aarhus Convention of 25 June 1998, in which equivalent exceptions
appear as article 4(4)(b) and (e).
3. The Directive merely permits exceptions of the nature indicated, and it
was open therefore to the United Kingdom to introduce exceptions of a more
limited nature (as Mr Lewis QC for the appellant, the Information
Commissioner, submits). However, the Supreme Court sees no indication that
the Regulations intended to do more than introduce into domestic law
exceptions matching in their terms and effect those permitted by the Directive.
Accordingly, the answer to the question in this appeal appears to the Court to
depend upon the interpretation of the Directive. In the Court’s view, the answer
is not obvious and is necessary for the Court’s decision. On this basis, the
Court’s duty is to refer the question to the Court of Justice under article 267
Treaty on the Functioning of the European Union (prior to 1 December 2009,
article 234 EC).
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The context
4. The information requested relates to the precise location of mobile phone
base stations in the United Kingdom. In 2000, the Report of the Independent
Expert Group on Mobile Phones, “Mobile Phones and Health” (“the Stewart
Report”) concluded that radiation from mobile phones did not constitute a
health risk, but that, until much more detailed and robust information was
available, a precautionary approach was called for. The Stewart Report
identified, as matters of public concern, the location of base stations and the
authorisation processes for their erection, and recommended a national
database. The Sitefinder website was duly set up by the Government and has
been operated since the end of 2003 by the respondent, the Office of
Communications (“Ofcom”). The site is constructed from information
voluntarily provided by mobile network operators from their databases. It has
enabled individuals, by inputting a postcode, town or street name, to search a
map square for information about the base stations within it.
5. The Sitefinder website shows the approximate location in each square of
each base station, but does not show either its precise location to within a metre
or whether it has been mounted at street level or concealed within or on top of a
structure or building. An Information Manager for Health Protection Scotland
(a branch of the National Health Service) requested from Ofcom grid
references for each base station, as it appears for epidemiological purposes.
The Information Manager’s request was refused by Ofcom, both initially and
on review. On application to the appellant, the Information Commissioner,
disclosure was ordered. On an appeal by Ofcom, the Information Tribunal
upheld the order for disclosure, on different grounds which turned on the two
presently relevant exceptions. The Tribunal examined the application of each
exception in turn.
6. As to the first exception (public safety), T-Mobile (a mobile phone
operator joined as a party before the Tribunal) submitted that the release of the
precise locations of base stations would assist criminal activities. The Tribunal
found that “the release of the whole database would provide some assistance to
criminals” (para. 40). Criminals were more likely to use the Sitefinder website
itself for the purpose of trawling valuable sites or disrupting public or police
communications. But it was “conceivable that data manipulation would enable
sophisticated criminals to detect patterns of development in base station
construction, which could assist their activities” and “greater risks might result
from the release of the five figure grid reference numbers” which would
“enable criminals to establish the precise location of, and (in an urban
environment) the resulting ease of access to, base stations”. The disclosure of
the requested information would “in some degree” increase the risk of attacks
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and “in that way may adversely affect public safety” (para. 40). However,
although the matter fell therefore within the scope of the exception, the
Tribunal did not accept that the public interest in maintaining it outweighed the
public interest in disclosure (para. 41). The public interest in disclosure arose
from the recommendations of the Stewart Report, from the general importance
attaching to the dissemination of environmental information and from the
particular importance of the particular information for epidemiological
purposes to the public, either as individuals or as members of interested groups.
7. As to the second exception (intellectual property rights), Ofcom and TMobile relied upon database rights under the Copyright and Rights in Database
Regulations 1997 (S.I. 1997 No. 3032) implementing Directive 96/9/EC of 11
March 1996 and, if and as necessary, copyright under section 3 of the
Copyright Designs and Patents Act 1988. It was, in the Tribunal’s view, clear
that mobile network operators had database rights in respect of the dataset
information which they provided to Ofcom from which the Sitefinder website
was constructed. It was also conceded by the Information Commissioner,
although the Tribunal expressed reservations about the correctness of the
concession, that the datasets contributed by mobile network operators also
enjoyed copyright protection, and that the Sitefinder website itself enjoyed both
dataset right and copyright protection. Ofcom and T-Mobile asserted that
disclosure of the information requested would affect these intellectual property
rights adversely in several respects. The information had commercial value,
and they might lose licensing opportunities (para. 50). Although the public
would still be bound to respect their intellectual property rights in the
information, its public disclosure would make infringement more likely and
less easy to detect (para. 51). It could enable competitors to map their network
and ascertain their network design – a factor which, however, the Tribunal
considerably discounted, having regard to the existing feasibility of
undertaking such an exercise using the Sitefinder website, and the absence of
any sign of any competitor as yet undertaking it (para. 52-54). Landowners
might be able to identify land where a mobile network operator would require
to place a base station, and to demand a higher rent (para. 55). The Tribunal
thought the harm likely to be suffered under this last head minimal. But it
thought that “the various factors considered together” involved sufficient
adverse effect to trigger the exception (para. 55). Each represented “some
degree of interference with a property right”, although none had any direct
impact on the public (para. 62). The Tribunal also thought it right to take into
account, as a potential adverse consequence of disclosure, the possibility (now
it appears in many cases a reality) that it might lead mobile network operators
to refuse to continue to provide information to update the Sitefinder website. Its
conclusion was however that the consequences of the interference with
intellectual property rights involved in disclosure were outweighed by the same
public interest in disclosure as it had identified when considering the first
exception.
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8. Ofcom submitted to the Tribunal that it should go further and consider
the potential adverse effects identified in respect of public safety and
intellectual property rights together and weigh them on that basis against the
public interest in disclosure. The Tribunal, in rejecting such an approach as
incorrect, said (para 58):
“We do not accept that the language or structure of EIR
regulation 12 permits the public interest factors to be transferred
and aggregated in this way. It seems to us that for a factor to
carry weight in favour of the maintenance of an exception it must
be one that arises naturally from the nature of the exception . . .
not any matter that may generally be said to justify withholding
information from release to the public, regardless of content. If
that were not the case then we believe that the application of the
exceptions would become unworkable. It could certainly produce
a strange result on the facts of this case. We have already found
that the public interest in withholding information that might be
of value to criminals does not justify maintaining the public
safety exception. On [Ofcom’s] argument it could be
supplemented by the public interest in … not undermining
intellectual property rights, in order to try to tip the scales in
favour of maintaining the exception. We think that this would
produce a nonsensical outcome and it is not a procedure we
propose to adopt.”
9. Ofcom appealed to the Administrative Court, which took the same
approach as the Tribunal on this last point: [2008] EWHC 1445 (Admin).
However, on a further appeal, the Court of Appeal reached the opposite
conclusion: [2009] EWCA Civ 90. It started with the domestic principle of
statutory construction, according to which the singular includes the plural
unless the contrary intention appears. In its view, therefore, references to “an
exception” in e.g. regulation 12(1)(a) were to be read as being to “one or more
exceptions”. It also considered that the language of other regulations and of the
Directive supported its conclusion. And it did not agree with the Tribunal’s
view that an “aggregate approach” to the exceptions would be unworkable or
nonsensical. On the contrary, it said that it “would consider it surprising if the
Directive or EIR required disclosure in a case where the overall public interest
favoured non-disclosure” (para. 42).
The proceedings before the Supreme Court
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10. The appeal before the Supreme Court concerns the single point described
in the previous two paragraphs. In the light of the written and oral submissions
on the point, the Court is at present divided in its views about the correct legal
answer to this question, by a majority of three to two presently favouring the
Court of Appeal’s approach. But all the Court’s members are agreed that, in
order to ascertain the answer under domestic law, it is, as stated at the outset of
this judgment, necessary to know the answer to the equivalent question posed
under Directive 2003/4/EC of 28 January 2003, and accordingly, since this is
also not obvious, to refer the matter to the Court. It is unclear whether the
Information Tribunal would have arrived at any different conclusion had it
thought it feasible and appropriate to combine all the adverse factors under the
two relevant exceptions and to weigh them against the public interest in
disclosure. The adverse factors identified by the Tribunal were on their face
scattered and limited, in comparison with the general presumption and other
specific factors favouring disclosure of the relevant environmental information.
But the point arises as one of general principle, and has been treated as relevant
by the Tribunal and in the courts below.
11. In case it would assist the Court of Justice, the Supreme Court will
explain in a little greater detail some of the considerations which have
impressed its members’ thinking. All members take as their approach the
general guidance given in recital (16) of the Directive. The restrictive
interpretation of exceptions is a general Community law principle, evidenced
elsewhere in the field of disclosure of information by Sweden and Turco v
Council of the European Union Cases C-39 and 52/05 P and Sweden v
Commission Case C-64/05P. Exceptions are set out under individual heads in
two parts (article 4(1) and article 4(2)) followed by a general paragraph, which
reads:
“The grounds for refusal mentioned in paragraphs 1 and 2 shall
be interpreted in a restrictive way, taking into account for the
particular case the public interest served by disclosure. In every
particular case, the public interest served by disclosure shall be
weighed against the interest served by the refusal. Member States
may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide
for a request to be refused where the request relates to
information on emissions into the environment.”
12. The majority of the Court point to the references to the “particular case”
(in German “im Einzelfall” and “In jedem Einzelfall” or in French “dans le cas
d’espèce” and “Dans chaque cas particulière”) as emphasising the need, in each
case when disclosure is requested and refused, to consider the factors relevant
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to that case, but not as calling for treatment of each exception separately. They
also point to the reference to weighing “the public interest served by
disclosure” against “the interest served by the refusal” and consider that, since
the refusal may be on a number of grounds, the whole of the interest or
interests giving rise to adverse effects under any and all grounds must be put
into the scales at once when the weighing exercise is undertaken. The majority
view is that, since all the facets of the public interest in disclosure go into one
side of the scales, it makes sense to put all the aspects of the interests served by
refusal to go into the other side. These latter interests may be highly diverse
and without any common factor (as in the present case, where the arguments
against disclosure under the public safety and intellectual property rights
exceptions are separate, one being concerned with public, the other with private
protection). But that, in the majority view, can be seen as a positive reason why
it is permissible to accumulate them. If, in some future case, it was possible to
identify some overlap, then some allowance might perhaps be appropriate to
eliminate double counting. The majority further point out that some of the
heads of article 4(2), particularly (b), already involve different interests under
which different factors could arise which could, they consider, presumably be
cumulated.
13. The minority view is that each exception appears as a separate head,
serving separate interests and requiring separate consideration. First, the
minority observes that this must be the case as regards article 4(1) and 4(2).
Factors relevant to an exception in article 4(1) could hardly have been intended
to be cumulated with factors relevant to an exception in article 4(2). That
would not make sense. Secondly, looking at article 4(1) and article 4(2)
separately, the word “or” in the Aarhus Convention makes clear that the
provisions in that Convention equivalent to article 4(1) and 4(2) constitute
alternative exceptions; and the Directive was intended to be consistent with the
Aarhus Convention. Third, there is no common factor behind the exceptions in
article 4(2) which enables any sensible cumulation. The Court of Appeal overlooked this factor when it spoke of some “overall public interest favour[ing]
non-disclosure” (see para. 9 above). The exceptions serve disparate interests,
which can and must each be weighed separately against the public interest in
disclosure. A public interest in limiting criminal activities which is itself
insufficient to outweigh the public interest in disclosure cannot sensibly be
cumulated with a private intellectual property right which is itself again also
insufficient to outweigh the public interest in disclosure, in order to thereby
arrive at some combined interest in non-disclosure which would outweigh the
public interest in disclosure. The Information Tribunal was right to consider
that cumulation of factors would lead to incongruities, and it is far from clear
how it could or would work in practice. Fourth, the minority considers that the
natural interpretation of the language of the Directive views each exception as a
separate potential reason for refusal. If the interest served by it is outweighed
by the public interest in disclosure, it ceases to be relevant. If the interest it
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serves outweighs the public interest in disclosure, the refusal can and will
identify that exception as the reason. On Ofcom’s case, however, the reason for
refusal could however be that, although no particular exception applies, viewed
collectively two (or more) exceptions apply.
Reasons for reference
14. The question referred is one of general principle, on which the courts
below have expressed, and different members of the Supreme Court hold,
different views. If it is answered in the negative, that will resolve this litigation.
If it is answered in the affirmative, the matter is likely to have to be referred
back to the Information Tribunal for further consideration.
The question referred
15. The Supreme Court therefore refers to the Court of Justice this question:
“Under Council Directive 2003/4/EC, where a public authority holds environmental
information, disclosure of which would have some adverse effects on the separate
interests served by more than one exception (in casu, the interests of public security
served by article 4(2(b) and those of intellectual property rights served by article
4(2)(e)), but it would not do so, in the case of either exception viewed separately, to
any extent sufficient to outweigh the public interest in disclosure, does the Directive
require 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?”
