R (Office of Communications) v Information Commissioner
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Thomas,Lord Justice Waller |
| Judgment Date | 20 February 2009 |
| Neutral Citation | [2009] EWCA Civ 90 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2009 |
| Docket Number | Case No: C1/2008/0938 |
[2009] EWCA Civ 90
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Lord Justice Laws
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller (Vice President of the Court of Appeal Civil Division)
Lord Justice Thomas and
Lord Justice Richards
Case No: C1/2008/0938
Dinah Rose QC and Jane Collier (instructed by The Office of Communications) for the Appellant
Akhlaq Choudhury (instructed by The Information Commissioner's Office) for the Respondent
Hearing dates : 17 December 2008
Lord Justice Richards:
This is the first occasion on which this court has had to rule on issues arising under the Environmental Information Regulations 2004 (“the EIR”). One of the issues raised concerns the correct general approach to balancing the public interest in maintaining exceptions from disclosure against the public interest in disclosure. Another issue is whether a decision-maker is entitled to take a matter into account as a public interest benefit if that benefit arises from use of the disclosed information in breach of the intellectual property rights of third parties.
The issues arise in the context of an appeal, first to the Information Tribunal and from there by way of further appeal to the Administrative Court and now to this court, against a decision of the Information Commissioner ordering the Office of Communications (“Ofcom”) to disclose information relating to the location and other details of mobile phone masts.
The regulatory framework
The Freedom of Information Act 2000 (“the 2000 Act”) creates a general right of access to information upon written request made to a public authority. The EIR contain a specific code for environmental information. Information that is environmental information under the EIR is exempt from disclosure under the 2000 Act.
The EIR give effect to Directive 2003/4/EC on public access to environmental information (“the Directive”). The recitals to the Directive include the following:
“(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.
…..
(14) Public authorities should make environmental information available in the form or format requested by an applicant unless it is already publicly available in another form or format or it is reasonable to make it available in another form or format. In addition, public authorities should be required to make all reasonable efforts to maintain the environmental information held by or for them in forms or formats that are readily reproducible and accessible by electronic means.
…..
(16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way whereby the public interest served by disclosure should be weighed against the public interest served by the refusal.”
Article 1 of the Directive states that the objectives of the Directive are (a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and (b) to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information.
Article 3 makes provision for Member States to ensure that public authorities are required, in accordance with the provisions of the Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest. Article 4 deals with exceptions, setting out in paras (1) and (2) various grounds on which Member States may provide for a disclosure request to be refused. Article 4(2) continues:
“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 ….”
The approach required by the Directive is reflected in the EIR. By regulation 5(1) of the EIR, a public authority that holds environmental information shall make it available on request, subject to various exceptions (and by regulation 5(6), any enactment or rule of law that would prevent the disclosure of information in accordance with the EIR shall not apply). Regulation 6(1) provides that where an applicant requests that the information be made available in a particular form or format, a public authority shall make it so available unless (a) it is reasonable for it to make the information available in another form or format, or (b) the information is already publicly available and easily accessible to the applicant in another form or format.
The relevant exceptions are contained in regulation 12, which reads in material part:
“12.(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if –
(a) an exception to disclosure applies under paragraphs ( 4) or (5); and
(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
(2) A public authority shall apply a presumption in favour of disclosure.
…
(5) For the purposes of paragraph (1)(a), 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;
(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;
(c) intellectual property rights;
(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;
(f) the interests of the person who provided the information where that person –
(i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
(ii) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and
(iii) has not consented to its disclosure;
(g) the protection of the environment to which the information relates.”
Regulation 16 empowers the Secretary of State to issue a code of practice providing guidance to public authorities as to the practice which it would, in the Secretary of State's opinion, be desirable for them to follow in connection with the discharge of their functions under the EIR. A Code of Practice was issued under that provision in February 2005.
By regulation 18 the enforcement and appeals provisions of the 2000 Act apply for the purposes of the EIR, with specified modifications.
The facts
The relevant facts are conveniently summarised in the judgment of Laws LJ, from which the following is largely taken.
Public concern as to potential risks to health which might be occasioned by electro-magnetic radiation emitted from mobile phones led to action in 1999 by the Department of Health which in that year commissioned a group of experts, under the chairmanship of Sir William Stewart, to consider the risks. The Stewart Report was produced the following year. Sir William and his colleagues concluded that radiation from mobile phones did not create an adverse health risk, but until much more detailed and scientifically robust information became available a precautionary approach was called for. They noted that the location of base stations and the processes by which their erection was authorised was the aspect of mobile phone technology which generated the most public concern. They made these observations:
“6.47. A first requirement is for reliable and openly available information about the location and operating characteristics of all base stations. Easy access to such information would help to reduce mistrust among the public. Furthermore the data would be useful when applications for new base stations were being considered, and might also be of value in epidemiological investigations.
6.48. We recommend that a national database be set up by Government giving details of all base stations and their emissions. For each this should list: the name of the operating company; the grid reference; the height of the antenna above ground level; the date that transmission started; the frequency range and signal characteristics of transmission; the transmitter power; and the maximum power output under the Wireless Telegraphy Act. Moreover this information should be readily accessible by the public, and held in such a form that it would be easy to identify, for example, all base stations within a defined geographical area, and all belonging to a specified operator.”
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