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ECJ to decide on release of mobile mast data

2 February 2010

The ECJ will decide how much environmental information is released by public authorities in the UK, after the Supreme Court decided to refer the issue to Luxembourg.

The ruling follows a dispute between Ofcom and the Information Commissioner over the release of details relating to mobile phone masts, including their precise location.

The commissioner ordered Ofcom to disclose the information, and was supported on appeal by the Information Tribunal and the High Court. The Court of Appeal overturned the decisions, arguing that they had failed to interpret an EU directive correctly.

Delivering the judgment of the court in Ofcom v Information Commissioner [2010] UKSC 3, Lord Mance said the issue was how public authorities should respond to requests for information when they wanted to rely on more than one of the exceptions to the duty to disclose.

Ofcom operates a website, known as Sitefinder, based on information voluntarily provided by mobile phone operators. The website shows only the approximate locations of masts.

Lord Mance said T-Mobile argued that the release of precise locations would “assist criminal activities”.

He said the Information Tribunal agreed that criminals could benefit from the release of precise locations, but, although it accepted that the matter fell within the scope of the exception, the tribunal believed this was outweighed by the public interest in disclosure.

Lord Mance said that a further exception relied on by T-Mobile and Ofcom related to intellectual property rights and copyright, but again the tribunal ruled that this was outweighed by the public interest.

“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,” Lord Mance said.

The Information Tribunal rejected this approach. The Supreme Court, by a three to two majority, agreed with Ofcom and the Court of Appeal. All five justices agreed that the case should be referred to the ECJ.

Lord Mance said the majority of the Supreme Court believed the directive did not call for the treatment of each exception separately.

“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.”

He said that although these interests could be highly diverse, that could be seen as a “positive reason” to accumulate them.

Lord Mance explained that the minority of the Supreme Court argued that each exception should be dealt with as a separate head, serving separate interests and requiring separate consideration.

“The exceptions serve disparate interests, which can and must each be weighed separately against the public interest in disclosure,” he said. According to the minority view:

“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.”

The ECJ is not expected to rule on the issue until next year. In the meantime, given the Court of Appeal judgment, Ofcom’s approach to the release of Sitefinder information will remain the same.

Richard Buxton, who runs his own environmental law practice, said the ECJ ruling would cover a vast range of information, from wind farms to landfill sites. He said the general policy behind European legislation favoured disclosure.

“I would expect and hope the ECJ would come down in favour of disclosure,” he said.

“If not, people will cite as many exceptions as they can.”

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