Sitefinder is a web-based services that allows anyone to search any location or postcode in the UK to discover the location of any nearby mobile phone base station, together with details of the station’s operator, operating frequencies and maximum transmitter power (e.i.r.p. per channel).
Sitefinder was the subject of a request for information under the Environmental Information Regulations 2004 (“EIRs”) to Ofcom, which was refused. The applicant for the information then made an appeal to Ofcom for an internal review, who upheld the initial decision to refuse the request. The applicant then appealed to the Information Commissioner, who was minded to order the disclosure of the relevant information (Case Ref: FER0072933, 11 September 2006). This was then appealed to the Information Tribunal (now known as the First-Tier Tribunal (Information Rights)), who also ordered disclosure (EA/2006/0078, 4 September 2007). Ofcom appealed to the High Court, where the appeal was dismissed ( EWHC 1445 (Admin), 8 April 2008), then to the Court of Appeal ( EWCA Civ 90, 20 February 2009) and the Supreme Court ( UKSC 3, 27 January 2010), who referred a question to the Court of Justice of the European Union (“CJEU”) (Case C-71/10). On 10 March 2011 Advocate General Kokott gave her opinion. Finally, the CJEU has given its decision ( EUECJ C-71/10, 28 July 2011), which should lead to the case being closed.
Initial Request and Internal Review
The EIRs provide for wider access to information that falls within the wide definition of environmental information included in the EIRs, than the Freedom of Information Act 2000 (“FOIA”) permits. Consequently, the information request made by an information officer from Health Protection Scotland on 11 January 2005 requesting national datasets of the full details of each mobile phone base station within the Sitefinder database under the FOIA, was correctly processed by Ofcom (being a request for information on factors such as radiation – EIRs, reg.2.1(b)) under the EIRs. The request was made because Sitefinder itself only permits users to research details within postcode areas, with no national or regional lists or exact details of base station grid references.
As a result of the initial request and request for internal review dated 25 February 2005, a number of exemptions under EIRs came into play, particularly:
- the public safety and national security exemption at reg.12(5)(a) – the public interest in safeguarding the location of all TETRA sites, and hence all police and emergency services communications, outweighed any public interest in disclosure of the sites’ data; and;
- the intellectual property rights (‘IPRs’) exemption at reg.12(5)(c) – disclosure would affect the rights of the network operators. The raw national dataset could be used by competitors to discover the design of each mobile network. The IPRs in question were:
- the operators’ database right in the Sitefinder database (applying the ruling in CJEU Case C-203/2 British Horseracing Board –v- William Hill, the Commissioner agreed that operators had made the necessary “substantial investment in obtaining, verifying or presenting the contents of the database” (Copyright and Rights in Databases Regulations 1997, reg 13(1)) to create a database right – Ofcom estimated that each operator took up to 50 man hours every 3 months to collate information for Sitefinder as well as 3-5 man-days per month to attend and contribute to Sitefinder policy and development groups);
- copyright in the operators’ data; and
- an obligation of confidence (the World Intellectual Property Organisation Convention 1967, Art. 2(viii), includes “rights relating to…works …protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields” – the Commissioner did not find that the appropriate obligation of confidence existed in the data supplied by the operators).
Appeal to Information Commissioner
The case was appealed to the Information Commissioner on 22 April 2005. The Commissioner considered the application by Ofcom of the EIRs, reg.12(5) exemptions, carefully applying his Awareness Guidance No. 20, which details how the Commissioner considers the adverse affect test for EIRs, re.12(5) should operate. Essentially, this is a harm test. The Guidance states: “the adverse affect test provides exceptions only in those cases where an adverse affect would arise. In other words, so far as environmental information is concerned, in order to engage an exception, some harm must be certain rather than merely likely. This is a significant difference.” As Ofcom did not present the Commissioner with evidence of harm to public safety or national security, or the operators’ IPRs, disclosure was ordered.
In coming to this view, the Commissioner took account of the balance of interests under EIRs’ cases: Recital 16 of the EU Directive on public access to environmental information (Council Directive 2003/4/EC), upon which the EIRs are based, states that exceptions must “be interpreted in a restrictive way”. It was quite possible for Ofcom to disclose the requested information subject to the operators’ database rights and copyright, so that the requester could not use the disclosed database. A public authority cannot prejudge use of disclosed environmental information. The EIRs, as with the FOIA, do not require a requester to state the purpose of the request. For both copyright and database right, it was ruled that use of the disclosed database by the requester would require a licence from the operators, which by implication they could refuse to grant.
Appeal to Information Tribunal
Ofcom appealed to the Information Tribunal on 10 October 2006, and T-Mobile was permitted by the Tribunal to be joined to the appeal on 29 November 2006. The case before the Tribunal was a messy one – it was not simply an appeal of the Commissioner’s decision. However, amongst other rulings, the Information Tribunal in considering the EIRs, reg.12(5)(b) public safety exception, did consider that there was a slightly increased risk that the disclosure of the site information requested, being more accurate than that already in the public domain, may adversely affect public safety. However, the Tribunal did not consider that this increased risk outweighed the public interest in the site information, given its importance as identified in the Stewart Report and for epidemiological investigations.
The Tribunal was also not convinced that the IPR exemption at EIRs, reg.12(5)(c) applied. The Tribunal decided that the exemption can only be applied if there is sufficient adverse effect to trigger the exemption, followed by a consideration of whether there the actual or potential harm in the disclosure is sufficiently great to outweigh the public interest in disclosure. The Tribunal considered that the test to find adverse effect should not be set with a particularly high threshold – the exemption could apply to any case where there was more than a mere technical or minimal infringement of the relevant IPR. The Tribunal considered the degree of harm that disclosure of the Sitefinder dataset would cause. For example, it considered the potential loss of revenue claimed by the operators from their inability to license their site data and the adverse effect that the disclosure of the Sitefinder information would result in the implied disclosure of each operator’s network design.
In each case, the Tribunal was not convinced that there would be actual or potential harm under each of the headings submitted by Ofcom and T-Mobile, but considered that there was sufficient adverse effect from the combination of the various factors.
The Tribunal also considered a further public interest in withholding the Sitefinder data. The operators’ had warned Ofcom that as their supply of base station data was not a statutory requirement but was made by them voluntarily, they would refuse to supply any further data if the Tribunal ruled in favour of disclosure. There was clearly a public interest in maintaining Sitefinder. The Tribunal did not consider that it could base its decision on any actual or implied threat of future non-cooperation by the operators.
In addition, the Tribunal did not accept Ofcom’s view that the EIRs required it to consider whether the aggregate public interest in maintaining the exemptions outweighed the public interest in favour of disclosure.
Appeal to the Administrative Court
In the Administrative Court the question of how to apply the EIRs exemptions was considered. In essence, the Court reviewed whether a public authority should consider the public interest in disclosure outweighed the public interest in withholding the requested information for each separate exemption that could apply, and only if all exemptions resulted in the public interest in disclosure being outweighed should the information not be released. The contrary argument was that the public authority should consider the aggregate public interest, was dismissed by the Court. In reviewing the IPRs exemptions, the Administrative Court considered that the Tribunal could consider whether the use of the data to be disclosed (i.e. for epidemiological research) was in the public interest, even if that meant a breach of the operators’ rights. This was important as strictly a person requesting information under the EIRs or FOIA does not have to state a purpose (however, I have always advised applicants that the purpose should be stated, for exactly this reason – it colours the public interest test – see the chapter I have co-authored in the Law Society’s Freedom of Information Handbook).
Appeal to the Court of Appeal
The Court of Appeal reviewed the Administrative Court’s view on aggregation of public interest, and determined that the Administrative Court had erred in not following this approach. However, the Court of Appeal agreed that the purpose to which the data disclosed was to be put could be considered in any public interest test.
The issue for the Supreme Court was therefore the same: how should a public authority apply more than one exemption? Is each exemption 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 exemptions be combined and then weighed against the public interest in disclosure? The Supreme Court quickly realised that this involved discerning what was intended by Directive 2003/4/EC, and so made the following reference to the CJEU:
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?
Advocate General Opinion
Julianne Kokott has carried out her usual thorough analysis, and has suggested to the CJEU that they answer:
Under Council Directive 2003/4/EC on public access to environmental information, 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 under Article 4(2), 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, the directive requires 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.
Decision of the CJEU
Perhaps not surprisingly, the CJEU has followed the conclusion of the Advocate General. The judgement is short and to the point, so I will not repeat the analysis of Article 4(2) of Directive 2003/4/EC made by the CJEU to enable them to come to this conclusion (see the link above).
As a result of the decision, the matter will be referred back relatively quickly to the First-Tier Tribunal (Information Rights), where I expect the cumulation of exemption interests will be found to outweigh the public interest in disclosure, so that Sitefinder will be reprieved.