Judgments
Ofcom v Information Commissioner [2010] UKSC 3 January 28th, 2010
29/01/10
In the first judgment at this level to consider the Environment Information Regulations 2004 (EIR), the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the EIR . Most of these exceptions are subject to a public interest test. The public interest in maintaining an exception has to be measured against the public interest in disclosure. Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.
But what happens if there are a number of exceptions in play? Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure? Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?
In the Ofcom litigation, which concerned the disclosure of information as to the location of mobile phone masts, the Information Tribunal had held, consistently with other decisions of the Tribunal, that each exception must be considered in turn and weighed against the public interest in disclosure. That decision as upheld by Laws LJ in the High Court. However, the Court of Appeal reversed the Tribunal's decision and decided in favour of aggregation. The Supreme Court was inclined (by a 3-2 majority) to uphold the Court of Appeal's decision. However, the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC which formed the basis for the EIR. So the Supreme Court has referred the issue to the European Court of Justice. This is the first reference to the ECJ made by the newly constituted Supreme Court.
The reference to the ECJ means that there will continue to be uncertainty for some time yet as to the proper approach to be taken to the weighing of the pubic interest in considering the exceptions under EIR and the similarly worded public interest test under the Freedom of Information Act 2000. Until the ECJ rules on the matter, the best option may be to argue that aggregation would make no difference to the eventual outcome.
The Information Commissioner was represented before the Supreme Court by Clive Lewis QC and Akhlaq Choudhury of 11KBW. Akhlaq also represented the Commissioner before the Tribunal, the High Court and the Court of Appeal.
