Posted on July 28, 2011 | Filed Under communication technologies
Do you have a right to know the exact location of all mobile phone base-stations (not just an approximate location as you can find in Ofcom’s “sitefinder” database)? This question is at the heart of a conflict between a UK health official, who wants to get access to the exact data, and the UK regulator Ofcom. The Information Commissioner, the Information Tribunal and the High Court of Justice (England & Wales) decided for the health official, the Court of Appeal reached the opposite conclusion - and the UK Supreme Court requested a preliminary ruling from the European Court of Justice for an interpretation of the directive on public access to environmental information (directive 2003/4/EC).
However, the scope of the question to the ECJ was rather narrow, and so today’s judgment of the ECJ in the case C-71/10 Ofcom does not tell us whether or not there is a right to know the exact location of the base stations under directive 2003/4/EC. The Supreme Court asked this question:
‘Under [Directive 2003/4], 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 ECJ - following the opinion of the advocate general - came to the conclusion that a public authority holding environmental information “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.”
At first glance this may seem to be a more restrictive approach; however, the Court stressed that not only the interests against giving access could be assessed cumulatively, but pointed out that, “when the interests involved are weighed, a number of separate interests may, cumulatively, militate in favour of disclosure.”
*) Shakespeare, Othello Act III, Scene 1