Where multiple exemptions under the Environmental Information Regulations 2004 are engaged and there is some public interest in maintaining each exemption, should those public interests be considered cumulatively and weighed together against the public interest in disclosure? Or must the environmental information be disclosed unless the public interest is in favour of maintaining (at least) one particular exemption (considered separately from any others)?

We finally have an answer to this question, after decisions by the Information Tribunal, High Court and Court of Appeal, followed by a referral by the Supreme Court and an opinion by Advocate General Kokott. The answer is that we must cumulate/aggregate the public interests; the Court of Justice of the European Communities has given judgment in OFCOM v Information Commissioner  (Case C-71/10).

The reasoning is characteristically concise. The Court noted that disclosure should be the general rule and “grounds for refusal should therefore be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal” and that the Directive did not set out any particular procedure for Member States to examine the grounds for refusal where there are exceptions to the general rule.

Having set out that context, the Court analysed the text of the Directive and concluded that “ the second sentence of the second subparagraph of Article 4(2) is concerned with the weighing against each other of two overarching concepts, which means that the competent public authority may, when undertaking that exercise, evaluate cumulatively the grounds for refusal to disclose“. Whilst the Directive also emphasised the duty to weigh the interests involved “[i]n every particular case“, this was a reference to the need to weigh the interests “on the basis of an actual and specific examination of each situation“.

The Court noted that the interest in relation to separate exceptions may overlap. It further commented that if the process of cumulating interests were to result in a refusal to disclose, “it would need to be acknowledged that that restriction on access to the information requested is proportionate and accordingly justified in the light of the overall interest represented jointly by the interests served by refusal to disclose“. 

Whilst this decision opens the way to public bodies and Tribunals aggregating public interests under the Environmental Information Regulations 2004, they will need to do so very carefully if the information could not be withheld in reliance on one exemption considered in isolation. In particular, care must be taken to avoid any double-counting if there is any overlap in interests.

Rachel Kamm