Interests for and against disclosure of environmental info should be added together: ECJ

The European Court of Justice has this week backed an Advocate-General’s opinion that the various interests against disclosure of environmental information should be added together and assessed against the public interest in its release.

The case of Office of Communications v Information Commissioner [2011] EUECJ C-71/10 related to a request by an information manager at Health Protection Scotland for Ofcom to disclose the precise grid locations for every mobile phone base station in the UK. Ofcom is able to provide this information through its Sitefinder website.

However, the telecoms regulator refused to disclose the information, both initially and on review. The Information Commissioner ordered disclosure, a decision upheld by the Information Tribunal.

The Tribunal rejected Ofcom’s argument that a balancing test should be conducted weighing all the public interests in favour of disclosure against the public interests in refusing disclosure.

The Administrative Court supported the Tribunal’s decision, but this was overturned by the Court of Appeal. The Supreme Court, by a majority, would have backed the Court of Appeal, but decided to refer the case to the ECJ.

In March 2011 Advocate-General Kokott issued an opinion suggesting that the separate interests served by different exceptions under the Environmental Information Directive should be combined and weighed against the public interest served by disclosure.

The ECJ has now followed that opinion. The effect is that the public interest in disclosure can be overcome by the combined weight of the various exceptions under the Environmental Information Regulations – even if none of them on their own would do so.

The ECJ specifically noted from the Directive that the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases.

“The grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal,” it said.

The ECJ added: “It should be observed that, according to the introductory wording in Article 4(2) of Directive 2003/4, ‘Member States may provide for’ exceptions to the general rule that information must be disclosed to the public. That provision does not specify any particular procedure for examining the grounds for refusal in cases where a Member State has provided for such exceptions on that basis.”

The judgment went on to say that the concept of “public interest served by disclosure” set out in the directive must be regarded as an overarching concept covering more than one ground for the disclosure of environmental information.

“It must accordingly be held that the second sentence of the second subparagraph of Article 4(2) is concerned with the weighing against each other of two overarching concepts, which means that the competent public authority may, when undertaking that exercise, evaluate cumulatively the grounds for refusal to disclose,” the ECJ said.

The Court said this view was not undermined by the Directive’s emphasis on the duty to weigh the interests involved ‘[i]n every particular case’. This, the ECJ said, was “intended to stress that interests must be weighed, not on the basis of a general measure, adopted by the national legislature for example, but on the basis of an actual and specific examination of each situation brought before the competent authorities in connection with a request for access to environmental information made on the basis of Directive 2003/4.”

The judges added: “Moreover, the fact that those interests are referred to separately in Article 4(2) of Directive 2003/4 does not preclude the cumulation of those exceptions to the general rule of disclosure, given that the interests served by refusal to disclose may sometimes overlap in the same situation or the same circumstances.”

The ECJ said it should also be pointed out that, since the various interests served by refusal to disclose relate, “as in the case in the main proceedings”, to the grounds for refusal set out in Article 4(2) of the Directive, “taking those interests into consideration cumulatively when weighing them against the public interests served by disclosure is not likely to introduce another exception in addition to those listed in that provision”.

It added: “If weighing such interests against the public interests served by disclosure were to result in a refusal to disclose, it would need to be acknowledged that that restriction on access to the information requested is proportionate and accordingly justified in the light of the overall interest represented jointly by the interests served by refusal to disclose.”

The ECJ therefore concluded: “In those circumstances…. Article 4(2) of Directive 2003/4 must be interpreted as meaning that, where a public authority holds environmental information or such information is held on its behalf, it may, when weighing the public interests served by disclosure against the interests served by refusal to disclose, in order to assess a request for that information to be made available to a natural or legal person, take into account cumulatively a number of the grounds for refusal set out in that provision.”