March 15th, 2011

On 10 March 2011 Advocate General Kokott gave her Opinion in Case C-71/10, OFCOM v Information Commissioner, a reference from the UK Supreme Court.  According to the Environmental Information Directive the right of access of individuals to environmental information can be restricted if disclosure would undermine particular interests deserving of protection provided that in the particular case the public interest served by disclosure does not outweigh the public interest served by refusal.  The question is whether, when deciding upon disclosure of environmental information, individual adversely affected interests which, when taken individually, would not be sufficient to outweigh the public interest served by disclosure can be cumulated and possibly together justify the confidential treatment of information.  The Advocate General answered the question in the affirmative.  She said (para 41): “…  the breakdown of interests meriting protection into different exceptions does not preclude their cumulation. 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.”

The Advocate General accepted that a cumulation of interests cannot create additional exceptions to the right to information, and said that the main issue is whether additional exceptions are created by a cumulation of recognized adversely affected confidential interests during the balancing exercise.  She continued (from para 53): “Cumulation can unquestionably bring about an additional restriction of access to environmental information if several interests together justify a refusal of disclosure even though, when taken in isolation, they would be outweighed by the public interest served by disclosure. It would nevertheless still always be a question of restriction of access based on recognised interests.  I agree with the United Kingdom in considering that this additional restriction correctly applies the principle of proportionality. … if the recognised interests militating against disclosure were together to clearly outweigh the public interest served by disclosure, the disadvantages caused by the disclosure of environmental information would no longer be proportionate to the aims pursued. … The Information Commissioner does indeed fear that the balancing of cumulative interests would be difficult to achieve in practice; however, these difficulties lie less in cumulation itself than in the nature of the balancing exercise between the interests served by disclosure and the interests served by the withholding of information. These interests are generally only comparable with difficulty, so that it is also difficult to weigh them against each other. This balancing exercise is made easier, however, if one applies the requirement of a restrictive interpretation of exceptions during the balancing exercise such that, in the event of doubt, the issue is decided in favour of transparency. … Consequently, the answer to the reference for a preliminary ruling should be that 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) of the Environmental Information Directive, 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.”

James Goudie QC

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