R (Office of Communications) v Information Commissioner
| Jurisdiction | England & Wales |
| Judge | LORD MANCE |
| Judgment Date | 27 January 2010 |
| Neutral Citation | [2010] UKSC 3 |
| Date | 27 January 2010 |
| Court | Supreme Court |
[2010] UKSC 3
Lord Hope, Deputy President
Lord Saville
Lady Hale
Lord Mance
Lord Collins
Appellant
Clive Lewis QC
Akhlaq Choudhury
(Instructed by the Solicitor to the Information Commissioner's Office)
Respondent
Dinah Rose QC
Jane Collier
Charlie Potter
(Instructed by the Solicitor to the Office of Communications)
This is a judgment of the Court
Introduction
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?
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).
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).
The context
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.
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.
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 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.
As to the second exception (intellectual property rights), Ofcom and T-Mobile 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...
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