Advocate-General says exceptions under EIRs should be aggregated

The separate interests served by different exceptions under the Environmental Information Directive should be combined and weighed against the public interest served by disclosure, an Advocate-General at the European Court of Justice has concluded.

This means that the public interest in disclosure can be overcome by the combined weight of the exceptions, even though none of them on their own would do so. The information could therefore be treated as confidential.

The issue as to whether there should be a cumulation of separate interests under the directive – which hands individuals a right of access to environmental information – was referred by the Supreme Court to the ECJ last year.

The High Court and a minority of judges at the Supreme Court took the view that each exception under Article 4(2) should be addressed separately, by considering whether the interest served by it or the public interest served by disclosure should prevail.

The majority at the Supreme Court believed that a cumulative exercise combining the separate exceptions should be undertaken, but decided to refer the question to the ECJ.

The exceptions under the directive were set out with more or less identical wording in the Environmental Information Regulations 2004.

At issue in Ofcom v Information Commissioner was a request by an information manager for Health Protection Scotland (part of the NHS) for Ofcom to disclose the precise grid locations for every mobile phone base station in the UK. Ofcom runs a website called Sitefinder from which it is possible to ascertain this information.

Ofcom refused the request initially and again on review. The Information Commissioner ordered disclosure, a ruling that Ofcom appealed but which was upheld by the Information Tribunal.

The Tribunal found that disclosure would adversely affect public safety (because it could have made it easier to attack base stations) and the promotion of intellectual property rights (possibly owned by the mobile network operators which supplied information to the site). But it also said the public interest could be served by disclosure because of the epidemiological reasons behind the request.

The Tribunal went on to conduct a balancing exercise examining each exception separately against the public interest. It ordered disclosure, rejecting Ofcom’s argument that a third balancing test should be conducted weighing all the public interests in favour of disclosure against all the public interests in refusing disclosure.

The Administrative Court took the same approach, but the Court of Appeal overturned the ruling. The Supreme Court, by a majority of three to two, said it was inclined to follow the Court of Appeal’s approach but decided to refer the case to the ECJ for a ruling – the first time it has done so.

In an opinion issued last week, Advocate-General Kokott at the ECJ said the breakdown of interests meriting protection into different exceptions did not preclude their cumulation.

She said: “As convincingly argued by the United Kingdom, these exceptions are not always clearly distinguishable from each other. Indeed, the interests meriting protection sometimes clearly overlap.

“This is immediately apparent in the case of the interests meriting protection under subparagraphs (d) to (g) of Article 4(2) of the Environmental Information Directive: the confidentiality of commercial or industrial information, intellectual property rights, personal data and the interests or protection of any person who supplied information on a voluntary basis.”

The Advocate-General said: “The main issue….is whether additional exceptions are created by a cumulation of recognised adversely affected confidentiality interests during the balancing exercise.

“Cumulation can unquestionably bring about an additional restriction of access to environmental information if several interests together justify a refusal of disclosure even though, when taken in isolation, they would be outweighed by the public interest served by disclosure. It would nevertheless still always be a question of restriction of access based on recognised interests.”

The Advocate-General said that this additional restriction correctly applied the principle of proportionality, one of the general principles of EU law which the legislature must observe.

“However, if the recognised interests militating against disclosure were together to clearly outweigh the public interest served by disclosure, the disadvantages caused by the disclosure of environmental information would no longer be proportionate to the aims pursued,” she concluded.

On the requirement that exceptions be afforded a restrictive interpretation, the AG said: “Not even that principle demands the disclosure of environmental information which leads to disproportionate disadvantages. It should instead be observed when interpreting the exceptions, weighing up the interests and in the course of the balancing exercise itself. One cannot, in particular, blindly set two disadvantages against one advantage; the interests concerned must be assigned a weight that reflects their significance before the balancing exercise begins.”

Turning to the Information Commissioner’s fear that the balancing of cumulative interests would be difficult to achieve in practice, the Advocate-General said: “These difficulties lie less in cumulation itself than in the nature of the balancing exercise between the interests served by disclosure and the interests served by the withholding of information. These interests are generally only comparable with difficulty, so that it is also difficult to weigh them against each other.

“This balancing exercise is made easier, however, if one applies the requirement of a restrictive interpretation of exceptions during the balancing exercise such that, in the event of doubt, the issue is decided in favour of transparency.”

She concluded: “Consequently, the answer to the reference for a preliminary ruling should be that where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2) of the Environmental Information Directive, but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.”

The case will now be considered by the ECJ. Although not binding on the court, an Advocate-General’s opinion is followed in the majority of cases.

Philip Hoult