England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		8 April 2008

1. LORD JUSTICE LAWS: This is an appeal brought under Section 59 of the Freedom of Information Act 2000 ("the 2000 Act") against a decision of the Information Tribunal ("the tribunal") promulgated on 4 September 2007 by which the tribunal dismissed the appeal of the Office of Communications ("Ofcom") brought pursuant to Section 57 (1) of the 2000 Act against a decision notice issued by the Information Commissioner on 11 September 2006 which required Ofcom to disclose certain information held by it concerning the location, ownership and technical attributes of mobile phone cellular-based stations.
2. It is convenient to describe the relevant statutory provisions before coming to the facts of the case. Ofcom is a body established by statute as the independent regulator for the United Kingdom communication industries. The Information Commissioner is also a creature of statute. One of his functions under the 2000 Act is to respond to any application pursuant to Section 50 for a decision as to whether a specified request for information made by the applicant and directed to a public authority has been dealt with in accordance with the requirements of Part I of the 2000 Act or Parts II and III of the Environmental Information Regulations 2004 ("the EIR") as the case may be.
3. This case, as I shall presently show, turns on the proper application of provisions contained in the EIR.
4. Either the complainant, that is to say the person who made the request for information and the application to the Commissioner, or the public authority concerned may appeal to the tribunal against the Commissioner's decision notice. By Section 58 of the 2000 Act the tribunal is to allow the appeal if it considers that the notice under appeal is not in accordance with the law or involved a wrong exercise of discretion by the Commissioner. By Section 58 (2) the tribunal may review any finding of fact on which the decision notice was based. Section 59, to which I have referred, provides for a right of appeal from the tribunal to this court on a point of law.
5. The 2000 Act creates a general right of access to information upon written request made to a public authority. "Public authority" is defined in the statute and a very large number of bodies are included (see Schedule 1). The Act contains detailed provisions as to the scope of the right and, in Part IV, the appeal provisions which I have just outlined. By Regulation 18 of the EIR these appeal provisions are applied with specified modifications for the purposes of the EIR, to which I turn next.
6. Whereas the 2000 Act provides for a general right of access to information, the EIR's subject matter, as the name suggests, is specific. They are concerned with the dissemination of what is called environmental information. They are the statutory measure which implements in the United Kingdom the provisions of Directive 2003/4/EC on Public Access to Environmental Information ("the Directive").
7. I should cite Preambles 1, 8, 14 and 16 to the Directive:

"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.

.....

8 It is necessary to ensure that any national and legal person has a right of access to environmental information held by or for public authorities without his having to state an interest.

.....

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 of 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."

8. Article 1 (1) shows that an objective of the Directive is to guarantee the right of access to environmental information held by or for public authorities. Article 4 sets out exceptions to the duty to disclose. Article 4 (2) provides in part:

"The grounds for refusal mentioned in paragraphs 1 and 2 ..... " -

I interpolate, a number of different grounds are there set out -

"shall be interpreted in a restrictive way taking into account in particular the public interest served by disclosure. In every particular case the public interest served by disclosure shall be weighed against the interests served by the refusal."

9. The EIR, giving effect to the Directive, provides for a right of access to environmental information held by public authorities. They came into force at the same time as the 2004 Act. Both measures promote increased openness in the public sector; but as seems to me one would have to be very cautious in using either as a guide to the interpretation of the other since the EIR are, and are only, a measure to implement European legislation. If their interpretation is to be coloured by anything it must be by the Directive.
10. "Environmental Information" is widely defined in EIR Regulation 2 (1). The definition was considered in detail by the tribunal in the present case. Nothing turns on it for the purposes of this appeal. There is no contest but that the information in question fell within the definition. Nor of course is there any dispute but that Ofcom is a public authority for the purposes of the EIR.
11. Information which is environmental information under the EIR is exempt from disclosure under the 2000 Act so there is no overlap between the governing provisions in the two measures. Under EIR Regulation 5 (1), subject to other specified provisions, a public authority that holds environmental information is required to make it available on request. That is the general duty. Regulation 12 provides for exceptions to the duty and is critical to this appeal. It states, so far as material:

"(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."

12. Going to sub-regulation (5):

"(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."

13. Plainly Regulation 5 (1) carries into effect the general right of access to environmental information guaranteed by Article 1 (1) of the Directive. Exceptions are to be interpreted strictly in conformity with Article 4 (2) of the Directive.
14. I turn to the facts of the case. There is first some background. It is described at paragraph 3 and following of the tribunal's decision. Public concern as to potential risks to health which might be occasioned by electro-magnetic radiation emitted from mobile telephones led to action in 1999 by the Department of Health which in that year commissioned a group of experts, under the chairmanship of Sir William Stewart, to consider the risks. The Stewart Report was produced the following year. Sir William and his colleagues concluded that radiation from mobile telephones did not create an adverse health risk, but until much more detailed and scientifically robust information became available a precautionary approach was called for. They noted that -

"The location of base stations and the processes by which their erection was authorised was the aspect of mobile phone technology which generated the most public concern."

15. These observations were made at paragraphs 6-47 and 6-48:

"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 of 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 by 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."

16. Further consideration was given to this whole matter, and at length the Stewart Report's recommendations led to the establishment by Ofcom, which itself came into existence after publication of the Stewart Report, of the Sitefinder website. This allows an individual who desires to know whether there is a mobile phone base station in a particular area to search for that information by inputting a postcode, town name or street name. A map square of the area then appears on screen.
17. The map shows base stations of five mobile network operators ("MNOs") and 02 - Airwave and Network Rail, as blue triangles. The five MNOs are 02, Vodaphone, T-mobile, Orange and H3G. The 02 - Airwave stations are used by the emergency services. Each blue triangle has a box which displays the following information: (a) operator site reference, (b) antenna height, (c) transmission height, (d) frequency range; (e) antenna transmitter power; (f) the station type; (g) maximum licensed power; (h) name of the operator.
18. The website does not however give the address of the base station, postcode, national grid reference or latitude/longitude co-ordinate. Nor does it indicate whether the stations are on roof tops, mounted on buildings interior or exterior, or street furniture.
19. On 11 January 2005 Mr Ian Henton, the Information Manager for Health Protection in Scotland, sent an e.mail to Ofcom in these terms:

"I wish to request the following information for each mobile phone base station held in the Sitefinder database:

Name of Operator

Height of Antenna

Frequency Range

Transmitter Power

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 table 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."

20. After consulting the MNOs Ofcom replied on 27 January 2005. They accepted that the information sought was environmental information so that the request fell to be considered under the EIR. Their substantive reply was that the information was already available on the Sitefinder website and so there was no requirement pursuant to paragraph 6 (1) (b) of the EIR to provide it in any other format.
21. On 25 February 2005 Mr Henton sought an internal review. He stated:

"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."

22. The review decision dated 15 April 2005 upheld the refusal of disclosure but did so on the ground that the exceptions provided for in EIR - Regulation 12 (5) (a) and (c) - applied. It was accepted that the national dataset sought by Mr Henton was not in the public domain because of the logistical and practical difficulties of constructing it from downloads from Sitefinder. The decision did not elaborate the material points under Regulation 12 (5) (a) and (c), but the evidence showed that Ofcom were concerned that disclosure of the national dataset in a readily comprehensible and searchable form would compromise the security of what are called TETRA sites (that is sites which provide the police and emergency service radio network) and also would adversely affect the intellectual property rights of the MNOs.
23. On 22 April 2005 Mr Henton applied to the Commissioner under Section 50 of the 2000 Act, as applied by Regulation 18 of the EIR, for an assessment of Ofcom's decision. At length detailed submissions were made to the Commissioner by Ofcom as to why the exceptions applied and why the public interest in maintaining the exceptions outweighed the public interest in disclosure.
24. The Commissioner issued his decision notice on 11 September 2006. He ordered Ofcom to make the disclosure sought. His reasons were to be crisply summarised by the tribunal at paragraph 13 of their determination as follows:

"13 ..... 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."

25. So on 10 October 2006 Ofcom exercised its right of appeal to the tribunal. On 26 November 2006 the tribunal acceded to an application by one of the MNOs - T-mobile - to be joined as a party. The appeal was heard over three days, 26 to 28 June 2007. The tribunal's decision was promulgated on 4 September 2007. The tribunal upheld the Commissioner's decision to order disclosure albeit on different grounds from those entertained by him.
26. In view of the limited nature of the grounds of appeal, I am not concerned with the whole range of the tribunal's reasons. Thus I need say nothing about the tribunal's conclusions concerning public safety. The first of the tribunal's conclusions I need to recite is that concerning the question whether the names of the MNOs fell outside the definition of environmental information. This is relevant to the second limb of the first ground of appeal to this court, as I shall explain. At paragraph 31 the tribunal said this:

"31 Ofcom argues that the names of the MNOs do not constitute information about either the state of the elements of the environment (for the purposes of sub-paragraph (a) of the definition) or the factors (set out in sub-paragraph (b)) that may affect those elements. We disagree. The name of a person or organisation responsible for an installation that emits electromagnetic waves falls conformably within the meaning of the words 'any information ..... on ..... radiation'. In our view it would create unacceptable artificiality to interpret those words as referring to the nature and effect of radiation, but not to its producer. Such an interpretation would also be inconsistent with the purpose of the Directive, as expressed in its first recital, to achieve ' ..... a greater awareness of environmental matters, a free exchange of views [and] more effective participation by the public in environmental decision making ..... '. It is difficult to see how, in particular, the public might participate if information on those creating emissions does not fall within the environmental information regime."

27. I should next recite a finding which though it appears under the heading Regulation 12 (5) (a) ("Public Safety"), with which I am not generally concerned, is nevertheless also material to the first ground of appeal. It appears in the body of paragraph 41 of the decision:

"41 ..... 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. We have seen from the facts of this case, in which the MNOs have decided to withdraw their co-operation with Ofcom, that any voluntary scheme is vulnerable to a change in circumstances ..... "

28. Paragraph 42 is also of some importance. I read only the concluding words where there is reference made to -

"42 ..... 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."

29. There is a long passage in the tribunal's determination from paragraph 43 to paragraph 62 inclusive where they consider the case advanced by Ofcom (and the intervening MNO T-mobile) to the effect that the disclosure sought would have an adverse effect on MNOs' intellectual property rights (see EIR Regulation 12 (5) (c)) and that the public interest in maintaining the exception outweighs the public interest in disclosure (Regulation 12 (1) (b)).
30. It was common ground between the parties that the datasets contributed for the purpose of the Sitefinder website by each MNO, as well as the Sitefinder database as a whole, are protected by two categories of intellectual property right: database, right which is governed by the Copyright and Licensing Databases Regulations 1997, and copyright, which is governed by the Copyright Designs and Patents Act 1988.
31. The tribunal held (at paragraph 49) that the disclosure sought would generate an adverse effect on the MNOs' intellectual property rights in the datasets they had provided to Ofcom. The tribunal made detailed assessments of four distinct adverse effects which were alleged: loss of potential revenue stream (paragraph 50), the difficulty of policing intellectual property rights (paragraph 51), disclosure of network design (paragraphs 52 to 54) and increased site costs (paragraph 55). It held that at least to some extent each adverse effect was made out.
32. The tribunal proceeded to consider where the balance of public interest lay. It stated:

"56 Having therefore decided that the exception applies we must now apply Regulation 12 (1) (b) and decide whether, in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. On this issue Ms Rose, counsel for Ofcom, argued that we should consider all elements of public interest in favour of maintaining the exception. She argued that this should include:

(i) the public interest in respecting the commercial interests of intellectual property right owners;

(ii) the risk to public safety if criminal activity is facilitated by disclosure (already dealt with in paragraph 40 above); and

(iii) the disadvantages the public will suffer if the MNOs decide that they should permanently withdraw their co-operation over Sitefinder and refuse to disclose any further information to Ofcom.

.....

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."

33. Applying the narrower approach which they favoured, the tribunal held at paragraph 62:

" ..... the consequences of the interference with property rights inherent in any order for disclosure of the information, and the possible withdrawal of co-operation by MNOs, do not outweigh those elements of public interest in favour of disclosure."

34. The first and principal argument advanced by Miss Rose QC, for the appellant Ofcom, is that the tribunal were in error in assessing the public interest balance in favour of disclosure because that assessment depended on a finding that was not reasonably open to them, namely their conclusion at paragraph 41 that the release of the whole database would satisfy the Stewart recommendation "that a national database would be of value in epidemiological investigations". Miss Rose says (though this was disputed) that this was in truth the only public interest factor which the tribunal took into account in favour of disclosure. It may be that that is right. It is enough that it was undoubtedly a major factor.
35. The argument to the effect that this factor could not weigh in the public interest balance is summarised in paragraph 44 of Miss Rose's skeleton argument as follows:

"However as a matter of law any person who received the information under the EIR and subsequently reformatted, sorted and manipulated the information using data handling applications would infringe the MNOs' database rights and quite possibly breach their copyright (subject in the latter case to any defence of fair dealing, which the Information Tribunal did not consider)."

I interpolate, there is also a defence of fair dealing in relation to database right. As Miss Rose pointed out this morning, for reasons into which I need not go, it would not appear possible that that could be engaged on the facts of this case. The skeleton argument continued:

"Thus recipients of the information under the EIR would not, in any event, be able to carry out research using the database, since this would be an infringement of the database right and/or copyright subsisting in the datasets. Accordingly the Information Tribunal erred in law in relying in favour of disclosure on an identifying benefit which would not in fact follow from disclosure."

36. Miss Rose's skeleton argument contains much detail, with reference to the 1997 Regulations and the 1988 Act, of the modes in which the MNOs' intellectual property rights might be infringed. It is however unnecessary to travel into that territory.
37. The Commissioner, responding to the appeal, does not contend that the disclosure order would not adversely affect intellectual property rights in the respects found by the tribunal. The Commissioner's argument is that this principal ground of appeal rests on a misunderstanding of the EIR. Mr Choudhury, on his behalf, submits that it is inherent in the scheme of the EIR that disclosure may be required even though that would involve an infringement of intellectual property rights. The scheme of the EIR is that disclosure must be made subject to a power to refuse disclosure if two conditions are met: first, if one of the stated exceptions applies and, secondly, that the public interest in maintaining the exception outweighs the public interest in disclosure. That is the plain effect of Regulation 12 (1). One of the stated exceptions is the very possibility of an adverse effect on intellectual property rights.
38. Faced with this submission, Miss Rose refined her argument at the hearing before me this morning. She submits - and this is in truth at the centre of her case on ground 1 - that while the EIR may contemplate intellectual property rights being adversely affected by disclosure, they do not contemplate adverse effects consisting in the manipulation or other use of the material such as would be involved if the database were deployed for epidemiological research and the like. She points to the fact that the duty in EIR Regulation 5 is only to disclose. She points further to the fact that manipulation of the material, for example by reformatting it and deploying it in the course of research projects, is likely to give rise to violations of rights arising certainly under the 1997 Regulations, and it may be also under the 1988 Act.
39. This is an attractive but I think erroneous argument. The duty of Regulation 5 is indeed only to disclose. As Mr Choudhury points out, Regulation 5 does not entitle the disclosing body to impose any conditions or restrictions or control on the use of the material. In that sense, once disclosed, the material is free in the public's hands. It is to be remembered moreover that Preamble 14 to the Directive shows an intention that the material should "readily be producible and accessible by electronic means".
40. The fact that disclosure would involve infringements of intellectual property rights is, as it seems to me, at most a balancing factor against disclosure, not an absolute bar. The public interest may override the rights in question though disclosure will not mean that the rights become wholly valueless.
41. However Miss Rose submitted this morning that Mr Choudhury's argument falls at this fence. The use of the material, once disclosed, will still be unlawful by force of the intellectual rights enjoyed by the MNO. The tribunal had something to say about this at paragraph 51 of the determination:

"51 The difficulty of policing intellectual property rights.

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 a 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."

42. So it may be that the 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.
43. Accordingly Miss Rose's elegant response to the argument set out in Mr Choudhury's skeleton argument on ground 1 does not in the end carry the day.
44. There is an alternative submission advanced by Miss Rose on the first ground though, as I see it, it is a freestanding argument. She submits at paragraph 69 of the skeleton argument that at least there was no public interest in disclosing the names of the MNOs. Those names could not contribute to epidemiological research. I have already set out the terms of paragraph 31 of the tribunal's decision which seemed to me to be relevant in this part of the case. I acknowledge of course that that passage was concerned with a different question, namely whether the names were environmental information as such. But as is there stated, public participation in environmental debate would be hampered if the names of those creating emissions were excluded. I incline to accept Mr Choudhury's submission at paragraph 56 of his skeleton argument that the same can be said in relation to debate arising out of epidemiological research.
45. Miss Rose sought to buttress this part of her case this morning by a submission that disclosure of the names would assist a commercial competitor in mapping out the network design of an MNO. But the tribunal effectively held at paragraph 52 that, at any rate in considerable measure, the Sitefinder website already allowed that to be done.
46. I turn to the second ground. This is to the effect that the tribunal should have accepted Miss Rose's argument addressed to them at paragraphs 56 and 58 which I have read. Her submission is summarised thus in paragraph 72 of her skeleton argument in this court:

"When carrying out the public interest balancing exercise, the Information Tribunal misdirected itself that it should not consider all the elements of the public interest in maintaining the exception, but that it should confine itself to the public interest factors 'arising naturally from the nature of the exception'."

Miss Rose submitted in writing that it is a general principle of public law that decision makers must take account of all relevant considerations (see paragraph 73 of the skeleton argument), and so it is. But the learning (see for example Findlay 1984 AC) shows that - absent a statutory lexicon of relevant considerations - it is for the decision maker to decide what he will treat as relevant and what he will not. That decision will itself only be subject to review on conventional public law grounds.

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.
49. Miss Rose has also refined this part of her case in her oral submissions today. She seeks to concentrate on the case where more than one exception is engaged under Regulation 12. By then she says all the public interests that relate to the exceptions engaged must be generally in play. Anything else is artificial and not warranted by the statutory scheme or the Directive.
50. In my judgment this position remains too wide. 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:

" ..... In relation to the disclosure of exempt information under a qualified exemption, the task under Section 2 is not to 'weigh' the public interest in non-disclosure against the public interest in disclosure: the task is to weigh the public interest 'in maintaining the exemption' afforded by the provision rendering it exempt information against the public interest in disclosing the information. Only if the weighing process favours maintenance of the exemption is the duty to communicate disapplied. Accordingly the balancing exercise does not involve a consideration of all aspects of the public interest that weigh against disclosure. The consideration of the public interest, so far as it weighs against disclosure, is focused upon the public interest embodied in the exemption by which the information sought is rendered exempt information."

There is a series of tribunal decisions cited in footnote 6 supporting this statement.

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."

I read that last passage because it would appear specifically to address the scenario urged by Miss Rose this morning.

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.
54. In all those circumstances Miss Rose's second ground takes her no further than the first. The argument has been interesting and important. It seems to me in the end that the result is clear. For all those reasons I would dismiss the appeal.
55. MR CHOUDHURY: I am grateful. The order should be the appeal should be dismissed. There is no application from the Commissioner.
56. LORD JUSTICE LAWS: Do you have an application, Miss Rose?
57. MISS ROSE: I believe I need to make it to the Court of Appeal. It is a second tier appeal.
58. LORD JUSTICE LAWS: I think you are right. I did not have that in mind. You are of course ahead of me.
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