Supreme Court refers key environmental information disclosure case to ECJ

The uncertainty over the correct interpretation of the Environmental Information Regulations 2004 is set to continue after the Supreme Court last month referred a key case to the European Court of Justice for a ruling.

At issue in Office of Communications v The Information Commissioner [2010] UKSC 3 was the approach to be taken to the exceptions to disclosure set out in the regulations.

The Information Commissioner had ordered Ofcom to disclose information regarding the precise location of mobile phone masts. Ofcom appealed but the Information Tribunal ruled that while the public interest in public security and in the protection of intellectual property rights had both been engaged, they were each outweighed by the public interest in disclosure.

The Information Tribunal also rejected Ofcom’s argument that under the EIR, the tribunal should have conducted a third, balancing test weighing all the public interests in favour of disclosure against all the public interests in refusing disclosure.

This view was backed by the High Court, but subsequently overturned by the Court of Appeal, where the judges ruled that the regulations had to be construed in the light of European Directive 2003/4/EC. In the appeal court’s view, the language of the directive supported an aggregate weighting exercise to assess the overall public interest.

Handing down its judgement last week, the Supreme Court unanimously held that the case raised an issue of general principle and that “the answer is not obvious”.  Different members of the court held different views on the correct interpretation so the Supreme Court felt under a duty to refer the question to the ECJ.

The Supreme Court would have upheld the Court of Appeal judgement by a majority of three to two. According to the judges in the majority, there were “certain linguistic clues” in the directive which favour an aggregate weighting exercise considering the overall public interest. The judges in the minority meanwhile argued that no cumulation of factors is possible – the disparate public interests involved, if considered together, would produce incongruities and be impractical.

The case represents the first time that the Supreme Court has referred a case to the ECJ for a ruling. However, the referral means a continuing lack of clarity on how public sector organisations should approach disclosure and the EIR.