Disclosure of environmental information referred to ECJ

Supreme Court asks ECJ to rule on correct test for determining whether information may be withheld

In Office of Communications (Respondent) v The Information Commissioner (Appellant) [2010] UKSC 3 the Information Commissioner ordered the disclosure of information held by Ofcom concerning the precise location of mobile phone masts. On appeal, the Information Tribunal (itself later upheld by the High Court) found that the public interest in public security, and in the protection of intellectual property rights, were both engaged but that under each separate exception the public interest in disclosure outweighed the interest alleged by Ofcom. It dismissed the argument of Ofcom that under the Environmental Information Regulations 2004 the Tribunal should conduct a third balancing test weighing all the interests in favour of disclosure against all the public interests in refusing disclosure.

On appeal, the Court of Appeal overturned the Tribunal. It held that the Regulations must be construed in the light of European Directive 2003/4/EC, which they implement. The language of both documents supported an aggregate weighing exercise to assess the overall public interest.

 

The Supreme Court unanimously held that the appeal raises an issue of general principle, the answer to which is not obvious, with different members of the Court holding different views on the correct construction of Environmental Information Regulations 2004, and Directive 2003/4/EC which they implement.  The Supreme Court was therefore under a duty to refer the question in the appeal to the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union.

Date Added: 27th January 2010