Court further defines scope of public access to environmental information
This reference for a preliminary ruling concerned the interpretation of Article 4 of Directive 2003/4 on public access to environmental information
At the request of the Department of Health, an independent investigation was conducted by experts into the risks connected with mobile phones. Their report, entitled ‘Mobile phones and Health’, identified as matters of public interest the location of base stations and the procedures for authorisation of those stations.
Subsequently, the United Kingdom Government set up a website called ‘Sitefinder’, which had been operated since the end of 2003 by the Office of Communications, in order to provide information on the location of mobile phone base stations in the United Kingdom. The site was constructed from information voluntarily provided by mobile phone operators from their databases. It made it possible for any individual to search a map square, by inputting a postcode, town or street name, for information about the base stations within it.
The Sitefinder website showed the approximate location in each square of each base station, but did not show either the precise location of the base station to within a metre; nor did it show whether the base station had been mounted at street level or concealed within or on top of a structure or building.
In 2005, an Information Manager for Health Protection Scotland, which was a branch of the National Health Service, asked the Office of Communications for the grid references for each base station.The Office of Communications refused the request, both initially and on review, relying on two grounds for refusal. First, the Office of Communications claimed that disclosure of that information would adversely affect public security within the meaning of Article 4(2)(b) of Directive 2003/4, as disclosure of the location of the sites would have included the location of the sites used to provide the police and emergency service radio network and could therefore be of use to criminals. Secondly, the Office of Communications relied on the adverse effect of disclosure of that information on the intellectual property rights of the mobile phone operators who had provided the information.
In subsequent proceedings, the Supreme Court of the United Kingdom asked the Court whether a public authority, where it held environmental information or such information was held on its behalf, 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 listed in Article 4(2) of Directive 2003/4, or whether it must weigh the interests served by refusal to disclose, one at a time, against the public interests served by disclosure.
The Court first of all noted that the right to information meant that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The Court stressed that the grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure was weighed against the interest served by the refusal.
The Court argued that, according to the introductory wording in Article 4(2) of Directive 2003/4, ‘Member States may provide for’ exceptions to the general rule that information must be disclosed to the public. That provision did not specify any particular procedure for examining the grounds for refusal in cases where a Member State had had provided for such exceptions on that basis.
The Court pointed out that Recital 1 to Directive 2003/4 set out the various reasons for disclosure; they included, in particular, ‘a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and … a better environment’.
The Court held that, therefore,the concept of ‘public interest served by disclosure’, referred to in the second sentence of the second subparagraph of Article 4(2) of that directive, must be regarded as an overarching concept covering more than one ground for the disclosure of environmental information.
The Court thus found that the second sentence of the second subparagraph of Article 4(2) was concerned with the weighing against each other of two overarching concepts, which meant that the competent public authority might, when undertaking that exercise, evaluate cumulatively the grounds for refusal to disclose.