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Reasons to keep environmental information secret can be considered together, says ECJ advisor


The European Court Of Justice (ECJ) will make It easier for organisations to keep environmental information secret if it follows the opinion of one of its advisors. Any ruling could also affect freedom of information laws, one expert said.

Advocate General Juliane Kokott, an advisor to the ECJ, has published her opinion on how it should rule on an NHS worker's attempts to force Ofcom to publish more information than it currently does on the location of mobile phone masts.

Ofcom operates a database called Sitefinder, which contains details on the location and owners of masts but publishes only some of the information it holds.

An information manager for NHS body Health Protection Scotland asked Ofcom for information on the exact positions of masts for research into potential effects on the population.

The EU's Environmental Information Directive on public access to environmental information became UK law as the Environmental Information Regulations (EIR) and the Environmental Information (Scotland) Regulations. The NHS worker asked the Information Commissioner to order Ofcom to release the information. It, the Information Tribunal and the High Court all said that as a public authority Ofcom should release the information under the EIR.

Ofcom claimed that the information was exempt from the EIR because to disclose it would damage the public interest because it would risk attacks on the masts and may involve the disclosure of intellectual property owned by mobile network operators.

After Ofcom won at the Court of Appeal, the Supreme Court asked the ECJ to rule on whether one of either the security or IP risks had to justify on public interest grounds exemption from disclosure, or whether they could be taken together to justify exemption.

Kokott has said that the ECJ should rule that each justification is taken in turn and, if neither is strong enough to justify the exemption from disclosure, they should be assessed together. If they are then strong enough to justify the exemption it should stand, she said.

"The right to environmental information is not an absolute right," she said in her opinion. "Information may be refused under Article 4 of the Environmental Information Directive if disclosure of the information would adversely affect certain interests expressly stated therein. However, the interest served by the refusal must be weighed against the public interest served by disclosure."

The case hinged partly on whether the Directive's instruction to weigh the public interest served by disclosure against the 'interest' served by refusal meant, by definition, a weighing involving only one interest at a time.

"The use of the term ‘interest’ in the singular does not preclude a cumulation of several interests," said Kokott. "‘The interest’ served by one thing or another can, by its natural literal meaning, encompass various (different) interests which are indicative of one or other outcome."

"The breakdown of interests meriting protection into different exceptions does 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."

Kokott concluded that the Directive means that a balancing exercise should conducted in relation to each reason for non-disclosure. If they are not reason enough individually to justify an exemption, they can then be considered cumulatively, she said.

If the ECJ follows that advice, its ruling would be likely to make it easier for public authorities to keep more environmental information private.

It could also have an effect on freedom of information (FOI) laws, which are often considered to be similar to the EIR in the UK. Information law expert Rosemary Jay of Pinsent Masons, the law firm behind OUT-LAW.COM, said that it was possible that any ECJ ruling would make it easier for public authorities to keep even non-environmental information private. 

"If the ECJ follows the opinion it could apply not just to the EIR but to freedom of information cases," said Jay. "The UK courts, though, might argue that it doesn't apply because FOI laws did not come from Europe, so there is no reason to take an EU court's ruling into account."

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