London: 27 January 2010

The UK Tribunal Service – Information Rights has published the latest decision from the Supreme Court in relation to the provision of mobile telephone mast data. The Supreme Court hearing took place on the 17th November 2009 and the Judgement was made on the 27th January 2010.

The Supreme Court states:

“JUDGMENT

The Supreme Court unanimously holds that the appeal raises an issue of general principle and that the answer is not obvious. Different members of the Court hold different views on the correct construction of Environmental Information Regulations 2004, and Directive 2003/4/EC which they implement. Consequently, the Supreme Court is under a duty to refer the question in the appeal to the European Court of Justice (paras [3], [10], [14]).”

The Introduction within the nine-page titled: JUDGMENT - Office of Communications (Respondent) v The Information Commissioner (Appellant) states:

“1. This appeal concerns the correct approach in law to a request for environmental information when the public authority holding the information relies upon more than one of the exceptions to the duty to disclose such information. Is each exception to be addressed separately, by considering whether the interest served by it is outweighed by the public interest in disclosure? Or can the interests served by different exceptions be combined and then weighed against the public interest in disclosure?”

The Judgement has referred the case to the European Court of Justice for clarification and states:

“The question referred

15. The Supreme Court therefore refers to the Court of Justice this question:

“Under Council Directive 2003/4/EC, 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 (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), 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, does the Directive require 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 relates to a issued by the UK Information Commissioner on 11th September 2006 reference: FER0072933 that states:

“Decision Notice

Date 11 September 2006

Public Authority:

The Office of Communications (‘Ofcom’)

Summary Decision

The complainant requested data about each mobile phone base station held within the Sitefinder database together with the national grid references for each site. The complainant requested that the information be provided as a text file, csv file, access database or Excel spreadsheet. Ofcom initially refused the request citing Regulation 6 (1) (b) of the Environmental Information Regulations (‘the EIR’) which refers to information already publicly available. At the internal review stage Ofcom decided that in fact the complete database that had been requested was not all available in the public domain. Therefore it refused to provide the database relying upon EIR Regulations 12 (5) (a) (National Security and Public Safety exception) and (c) (Intellectual Property Rights exception).

The Commissioner found that the public authority did not comply with the Environmental Information Regulations in refusing to provide the information. The Commissioner did not consider that disclosure would adversely affect national security, public safety or intellectual property rights. Therefore he has ordered Ofcom to disclose the requested information to the complainant.”

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