COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Lord Justice Laws
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal Civil Division)
LORD JUSTICE THOMAS
LORD JUSTICE RICHARDS
| THE OFFICE OF COMMUNICATIONS
|- and -
|THE INFORMATION COMMISSIONER
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Akhlaq Choudhury (instructed by The Information Commissioner's Office) for the Respondent
Hearing dates : 17 December 2008
Crown Copyright ©
Lord Justice Richards :
The regulatory framework
"(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.
(14) Public authorities should make environmental information available in the form or format requested by an applicant unless it is already publicly available in another form or format or it is reasonable to make it available in another form or format. In addition, public authorities should be required to make all reasonable efforts to maintain the environmental information held by or for them in forms or formats that are readily reproducible and accessible by electronic means.
(16) 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 in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way whereby the public interest served by disclosure should be weighed against the public interest served by the refusal."
"The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal …."
"12.(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if –
(a) an exception to disclosure applies under paragraphs (4) or (5); and
(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
(2) A public authority shall apply a presumption in favour of disclosure.
(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect –
(a) international relations, defence, national security or public safety;
(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;
(c) intellectual property rights;
(d) the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;
(f) the interests of the person who provided the information where that person –
(i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
(ii) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and
(iii) has not consented to its disclosure;
(g) the protection of the environment to which the information relates."
"6.47. A first requirement is for reliable and openly available information about the location and operating characteristics of all base stations. Easy access to such information would help to reduce mistrust among the public. Furthermore the data would be useful when applications for new base stations were being considered, and might also be of value in epidemiological investigations.
6.48. We recommend that a national database be set up by Government giving details of all base stations and their emissions. For each this should list: the name of the operating company; the grid reference; the height of the antenna above ground level; the date that transmission started; the frequency range and signal characteristics of transmission; the transmitter power; and the maximum power output under the Wireless Telegraphy Act. Moreover this information should be readily accessible by the public, and held in such a form that it would be easy to identify, for example, all base stations within a defined geographical area, and all belonging to a specified operator."
"I wish to request the following information for each mobile phone base station held in the Sitefinder database:
Name of Operator
Height of Antenna
Maximum licensed power
Type of Transmission
Grid Reference East
Grid Reference North
Please provide the information requested as either a text file, csv file, Access database or Excel spreadsheet.
I have looked at the Sitefinder website but it does not provide grid references for each base station, also there is no facility to download information on all base stations."
"I do not believe that EIR Regulation 6(1)(b) applies in this case as the information on the Sitefinder website is not in a suitable format for my needs. I wish to obtain a complete dataset of the information you hold on the base stations including grid references. The grid references will allow me to map the base stations using my own mapping analysis software.
If I were to obtain base station information from the website I would need to enter approximately 140,000 postcodes for Scotland alone and I still would not have the base station grid references. This would also be extremely time consuming especially when you already hold the information I require."
"..... His reasons were, first, that he did not accept that the exception under EIR Regulation 12(5)(a) was engaged. With regard to the intellectual property exception under Regulation 12(5)(c) he decided that two categories of intellectual property applied (database right and copyright) but did not accept that there was any adverse effect on either of them so as to trigger the exception. In respect of a possible third category of intellectual property right, confidentiality, the Information Commissioner decided that the information did not have the necessary quality of confidence."
The tribunal's decision
"41. Although, therefore, the exception applies we do not believe that the public interest in maintaining it outweighs the public interest in disclosure. The public interest in disclosure arises out of the original recommendations of Stewart … and the importance of environmental information being disseminated for the reasons set out in the first recital to the Directive. The discussions that led to the creation of the Sitefinder website slightly reduced the scope of the original parameters for the national database as proposed by Stewart. It may be that the MNOs believe that, in the light of increased criminal activity, they should have tried to persuade Ofcom's predecessor organisation to have restricted the parameters further than they did. However, it is not possible at this stage to recover the data that has been published and the release of the balance will simply have the effect of putting into the public domain elements of the information that Stewart proposed should have been placed there in the first instance. The release of the whole of the Sitefinder database, in a format that may be searched, sorted or otherwise manipulated for statistical and illustrative purposes, will also satisfy the recommendation of Stewart that a national database would be of value in epidemiological investigations. Mere access to the Sitefinder website would not be sufficient for researchers in this area. We heard evidence to the effect that up until now MNOs have demonstrated a willingness to licence the use of their individual datasets to researchers at no cost, although it was not entirely clear how much freedom a researcher would have to publish the information as part of his or her findings under the licence terms likely to be imposed. However, freedom of information should not be dependent on the goodwill of companies adopting a responsible attitude, or on the identification by those companies of the researchers whose work should be supported in this way …. Accordingly the research issue remains in our view a factor in favour of disclosure and its weight is not significantly reduced by the voluntary disclosure of the information in the past.
42. Balanced against that is the increased risk to public safety, which we have already identified. Our conclusion is that the adverse effect on public safety of the release of the requested information, although sufficient to trigger the exception, is not large, particularly in view of the information already available through the Sitefinder website and the rollout plans. It may be supplemented, as a factor in favour of maintaining the exemption, by a general public interest in not facilitating criminal activity but, even with that additional factor, we do not believe that it outweighs the public interest in having the whole of the data disclosed in a form that the public, either as individuals or as members of groups having an interest in the subject, may search, analyse and reformat using basic data handling applications."
"16.(1) Subject to the provisions of this Part, a person infringes a database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database.
(2) For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents."
By regulation 19(1), a lawful user of a database which has been made available to the public in any manner is entitled to extract or re-utilise insubstantial parts of the contents of the database for any purpose: a "lawful user" is defined by regulation 12(1) as "any person who (whether under a licence to do any of the acts restricted by any database right in the database or otherwise) has a right to use the database". By regulation 20(1), database right in a database which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if (a) that part is extracted from the database by a person who is apart from that paragraph a lawful user of the database, (b) it is extracted for the purpose of illustration for teaching or research and not for any commercial purpose, and (c) the source is indicated. By regulation 20(2) and schedule 1 there are further exceptions, but none of them is relevant to the present case.
"51. … It is accepted by all parties that the release of information under either EIR or FOIA does not involve an implied licence to exploit it commercially or to do any act which would constitute an infringement if not authorised. Any person to whom the information is released will therefore still be bound by an obligation to respect any intellectual property rights that already subsist in it. However, once the material protected by an intellectual property right has been released to a third party it becomes more difficult to discover instances of infringement (either by that third party or any person to whom it passes the material), to trace those responsible for it and to enforce the right against them. This is particularly the case with respect to the material in this case, which is stored in a form in which it may be instantaneously transmitted to many third parties with limited scope to trace either the source or the destination and in a format that may be very easily reconfigured. Although it is the case that much of the material has already been licensed for public disclosure by Ofcom, and in fact released into the public domain under that licence, this does not undermine each MNO's interest in the effective enforcement of its intellectual property rights to protect unauthorised commercial exploitation of the so far unpublished elements, including, in particular, the whole database in a format that may be searched, sorted and manipulated."
"58. If Ms Rose's argument is correct on this point the effect could be that a factor in favour of one exception, having been found to be insufficient to justify the maintenance of that exception, could still be relied upon to add weight to public interest factors supporting the maintenance of another exception. We do not accept that the language or structure of EIR regulation 12 permits the public interest factors to be transferred and aggregated in this way. It seems to us that for a factor to carry weight in favour of the maintenance of an exception it must be one that arises naturally from the nature of the exception. It is a factor in favour of maintaining that exception, not any matter that may generally be said to justify withholding information from release to the public, regardless of content. If that were not the case then we believe that the application of the exceptions would become unworkable. It could certainly produce a strange result on the facts of this case. We have already found that the public interest in withholding information that might be of value to criminals does not justify maintaining the public safety exception. On Ms Rose's argument it could be supplemented by the public interest in, for example, not undermining intellectual property rights, in order to try to tip the scales in favour of maintaining the exception. We think that this would produce a nonsensical outcome and it is not a procedure we propose to adopt."
The judgment of Laws LJ
(1) Did the tribunal fall into error when carrying out the public interest balancing exercise under regulation 12(1)(b), by looking at each applicable exception separately and declining to consider whether the aggregate public interest in maintaining the exceptions outweighed the public interest in favour of disclosure?
(2) Did the tribunal fall into error by taking into account, as an aspect of the public interest in disclosure, the "benefit" arising from use of the information for epidemiological research even though such use would be in breach of the intellectual property rights of the MNOs?
(3) Was the tribunal entitled to find that the public interest in maintaining the exception in regulation 12(5)(c) did not outweigh the public interest in disclosing the names of the MNOs (as distinct from the disclosure of the remainder of the requested information)?
First issue: the correct approach to the public interest balancing exercise
"47. Here, as it seems to me, the tribunal's view set out at paragraph 58 was indeed reasonable; but more than that, as Mr Choudhury submits, it accords with the statutory scheme. Regulation 12(1)(b), as I have shown, has the words 'the public interest in maintaining the exception'. The EIR must be construed conformably with the Directive, Article 4(2) of which refers to the 'interest served by refusal' (see also paragraph 16). The general requirement of the Directive is that grounds for refusal be interpreted restrictively. The EIR by Regulation 12(2) prescribes a presumption in favour of disclosure.
48. So the focus of the legislation is on the particular interests which the particular exceptions serve. It requires such interests, in effect, to be specifically justified in a context where the presumption is in favour of disclosure.
50. … I have concluded that the scheme is that each exception must carry its own justification. The approach that takes each exception separately is, I think, promoted by the words of Regulation 12(1)(b) which, as Mr Choudhury pointed out this morning, are in contrast with the words in Regulation 13(2)(a)(ii) of the EIR dealing with personal data.
51. The approach adopted by the tribunal is promoted also, as I see it, by Article 4(2) of the Directive. This is consistent with what is said in Coppel on Information Rights, relating to the 2000 Act, at paragraph 15-001 ….
52. At paragraph 15-005 the author says this:
'Where information is rendered exempt information by more than one qualified exemption, it would seem that the public interest in maintaining the exemption must be balanced one exemption at a time against the public interest in disclosure.'
53. The reason I think that the approach taken in that text book is correct is essentially grounded in the policy balance that one finds in the Directive and in the Regulations. There is a general duty to disclose. It is, as Mr Choudhury put it, purpose-blind. No justification has to be shown for the disclosure in the first instance. The exceptions are drawn tightly. The wording suggests at least that they must be considered exception by exception, and that includes the public interest that attaches to each exception. The scheme is a striking one. But it seems to me that the words, both of the Directive and of the EIR, promote the result that was arrived at by the tribunal" (original emphasis).
Second issue: whether a benefit arising from unlawful use of the disclosed information can be taken into account
"17. Public authorities should be aware that information that is disclosed under the EIR might be subject to copyright protection. If an applicant wishes to use any such information in a way that would infringe copyright, for example by making multiple copies, or issuing copies to the public, he or she would require a licence from the copyright holder. HMSO have issued guidance, which is available at [website reference and contact details].
18. [The HMSO website] explains more fully the distinction between the supply of information held by public authorities under the Freedom of Information legislation and the re-use of that information and those circumstances where formal licensing is required."
"So it may be that MNOs will retain rights of action in relation to uses of the material made after disclosure. But it does not seem to me that that undercuts the thrust of Mr Choudhury's submission that the material, once disclosed pursuant to the Regulation 5 duty, is free in the public's hands, free that is subject to the private law rights that the intellectual property owners enjoy."
Third issue: disclosure of the names of the MNOs
Lord Justice Thomas :
Lord Justice Waller :