R (Office of Communications) v Information Commissioner

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLORD JUSTICE LAWS
Judgment Date08 April 2008
Neutral Citation[2008] EWHC 1445 (Admin)
Docket NumberCO/8598/2007

[2008] EWHC 1445 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

LORD JUSTICE LAWS

CO/8598/2007

Between:
The Queen On The Application Of Office Of Communications
Claimant
and
Information Commissioner
Defendant

Miss D Rose QC and Miss J Collier (instructed by Office of Communications) appeared on behalf of the Claimant

Mr A Choudhury (instructed by Information Commissioner's Office) appeared on behalf of the Defendant

LORD JUSTICE LAWS
1

This is an appeal brought under Section 59 of the Freedom of Information Act 2000 (“the 2000 Act”) against a decision of the Information Tribunal (“the tribunal”) promulgated on 4 September 2007 by which the tribunal dismissed the appeal of the Office of Communications (“Ofcom”) brought pursuant to Section 57 (1) of the 2000 Act against a decision notice issued by the Information Commissioner on 11 September 2006 which required Ofcom to disclose certain information held by it concerning the location, ownership and technical attributes of mobile phone cellular-based stations.

2

It is convenient to describe the relevant statutory provisions before coming to the facts of the case. Ofcom is a body established by statute as the independent regulator for the United Kingdom communication industries. The Information Commissioner is also a creature of statute. One of his functions under the 2000 Act is to respond to any application pursuant to Section 50 for a decision as to whether a specified request for information made by the applicant and directed to a public authority has been dealt with in accordance with the requirements of Part I of the 2000 Act or Parts II and III of the Environmental Information Regulations 2004 (“the EIR”) as the case may be.

3

This case, as I shall presently show, turns on the proper application of provisions contained in the EIR.

4

Either the complainant, that is to say the person who made the request for information and the application to the Commissioner, or the public authority concerned may appeal to the tribunal against the Commissioner's decision notice. By Section 58 of the 2000 Act the tribunal is to allow the appeal if it considers that the notice under appeal is not in accordance with the law or involved a wrong exercise of discretion by the Commissioner. By Section 58 (2) the tribunal may review any finding of fact on which the decision notice was based. Section 59, to which I have referred, provides for a right of appeal from the tribunal to this court on a point of law.

5

The 2000 Act creates a general right of access to information upon written request made to a public authority. “Public authority” is defined in the statute and a very large number of bodies are included (see Schedule 1). The Act contains detailed provisions as to the scope of the right and, in Part IV, the appeal provisions which I have just outlined. By Regulation 18 of the EIR these appeal provisions are applied with specified modifications for the purposes of the EIR, to which I turn next.

6

Whereas the 2000 Act provides for a general right of access to information, the EIR's subject matter, as the name suggests, is specific. They are concerned with the dissemination of what is called environmental information. They are the statutory measure which implements in the United Kingdom the provisions of Directive 2003/4/EC on Public Access to Environmental Information (“the Directive”).

7

I should cite Preambles 1, 8, 14 and 16 to the Directive:

“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.

…..

8 It is necessary to ensure that any national and legal person has a right of access to environmental information held by or for public authorities without his having to state an interest.

…..

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 of 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.”

8

Article 1 (1) shows that an objective of the Directive is to guarantee the right of access to environmental information held by or for public authorities. Article 4 sets out exceptions to the duty to disclose. Article 4 (2) provides in part:

“The grounds for refusal mentioned in paragraphs 1 and 2 ….. ” -

I interpolate, a number of different grounds are there set out -

“shall be interpreted in a restrictive way taking into account in particular the public interest served by disclosure. In every particular case the public interest served by disclosure shall be weighed against the interests served by the refusal.”

9

The EIR, giving effect to the Directive, provides for a right of access to environmental information held by public authorities. They came into force at the same time as the 2004 Act. Both measures promote increased openness in the public sector; but as seems to me one would have to be very cautious in using either as a guide to the interpretation of the other since the EIR are, and are only, a measure to implement European legislation. If their interpretation is to be coloured by anything it must be by the Directive.

10

“Environmental Information” is widely defined in EIR Regulation 2 (1). The definition was considered in detail by the tribunal in the present case. Nothing turns on it for the purposes of this appeal. There is no contest but that the information in question fell within the definition. Nor of course is there any dispute but that Ofcom is a public authority for the purposes of the EIR.

11

Information which is environmental information under the EIR is exempt from disclosure under the 2000 Act so there is no overlap between the governing provisions in the two measures. Under EIR Regulation 5 (1), subject to other specified provisions, a public authority that holds environmental information is required to make it available on request. That is the general duty. Regulation 12 provides for exceptions to the duty and is critical to this appeal. It states, so far as material:

“(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.”

12

Going to sub-regulation (5):

“(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.”

13

Plainly Regulation 5 (1) carries into effect the general right of access to environmental information guaranteed by Article 1 (1) of the Directive. Exceptions are to be interpreted strictly in conformity with Article 4 (2) of the Directive.

14

I turn to the facts of the case. There is first some background. It is described at paragraph 3 and following of the tribunal's decision. Public concern as to potential risks to health which might be occasioned by electro-magnetic radiation emitted from mobile telephones 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 telephones 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.”

15

These observations were made at paragraphs 6-47 and 6-48:

“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 of their emissions. For each this should list: the name of the operating...

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