EIR Exemptions and Aggregation : a round trip

The First-Tier Tribunal (Information Rights) has ruled on the appeal by the Office of Communications (Ofcom) which was remitted following the Supreme Court’s judgment in Ofcom v IC [2010] UKSC 3, [2011] 1 Info LR 1288 (which itself followed the decision of the Court of Justice of the European Union in Ofcom v IC [2011] 2 Info LR 1). By its new decision of 12 December 2012 the Tribunal declined to depart from its previous decision which was made back on 4 September 2007.

This lengthy circular journey began with a request in January 2005 by a representative of Health Protection Scotland for a list of mobile phone base stations held on the “Sitefinder” website  and for information that was not publically accessible through Sitefinder such as grid references for each base station. The information was requested under the Environmental Information Regulations 2004 (EIR).

 Ofcom refused and relied on the exemption under regulation 12(5)(a), contending that the public interest favoured withholding the information since public safety would be adversely affected by the precise disclosure of the base sites. In particular, this would reveal the locations of the relevant database and thereby assist possible criminal activity. Ofcom also relied on regulation 12(5)(c), contending that the public interest favoured withholding the information because the intellectual property rights of the mobile network operators (MNOs) would thereby be adversely affected giving competitors an undue advantage.

 On 11 September 2006 the Information Commissioner (ICO) ordered disclosure, ruling that public safety would not be put at risk and also that regulation 12(5)(c) was not engaged. Ofcom appealed.

 In its 2007 decision the Tribunal upheld the ICO’s decision, taking the view that the purpose of Sitefinder was to permit important health research and that this comfortably outweighed any risk to the public from disclosing the information sought and any adverse effect to the public interest arising from prejudice to MNOs’ intellectual property rights. In particular it took the view that the exception would be made unworkable if it had regard to disadvantages the public might suffer if the MNOs, piqued by disclosure, decided permanently to withdraw their co-operation with Sitefinder.

 Ofcom appealed unsuccessfully to the Administrative Court on a number of issues but, on a further appeal to the Court of Appeal, succeeded on one i.e. whether the public interest in maintaining the two relevant exemptions could be aggregated – as opposed to the public interest balance being struck on each exemption separately.

 The ICO, undeterred, appealed this question to the Supreme Court. The Justices, unable to agree on the answer, referred it to the European Court which ruled that a public authority in these circumstances “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.” The word “may” would prove to be rather important.

 The Supreme Court remitted the case so that the Tribunal could reconsider the public interest balance. And there this eventful journey ended with a second decision which largely echoed the first.

 The Tribunal (chaired by Tribunal Judge Marks QC) endorsed the ICO’s approach that aggregation is a right, not  a duty, so a decision maker will consider whether to aggregate but is not bound to do so. Aggregation may not always be appropriate, e.g. where the exemptions relied upon are so different that the exercise would not be feasible. The aggregation exercise is “impressionistic” rather than “mathematical”.

 What undid Ofcom was that the weight given to the exemptions was very limited. In respect of public safety, despite references to possibilities of crimes ranging from metal theft to terrorist attack, it was held that such risks already existed as a result of information already available so that disclosure of further information would not make much difference. As to intellectual property rights, the interests in question were held to be more private than public. And in each case, either they were already at risk or “the enhanced risk is so small as to be given no significance”. Once again the Tribunal ruled that it would not be appropriate to ascribe weight to any ongoing non-participation by MNOs.

 Aggregation did not alter these conclusions. The two exemptions were characterised as “apples and pears”, with no real link and thus no “sensible way of extracting or recognising, let alone applying, any common content as to public interest or interests”. But even when aggregated, the overall weight to be given to them was adjudged to be minimal. Where such minimal harm was difficult to identify and characterise in view of the large amount of information already in the public domain, an “impressionistic” approach would not lead to a different result.

 This case, believed to contain the first full consideration of aggregation, therefore does not give the impression that aggregation will be an especially powerful tool. The emphasis was on the ruling that a decision maker or tribunal may, but not must, aggregate.

 However, it remains to be seen whether future cases may bring further analysis of the “apples and pears” approach. Whilst different exemptions may protect quite different aspects of the public interest, it does not necessarily follow that the value of protecting the public in two different ways is not cumulatively greater than the value of protecting them in only one. If aggregation for some reason is “not feasible”, that is the end of the matter, but debate can be expected to continue on how often it will actually not be feasible to conduct a suitably “impressionistic” comparison of the totality of interests for and against disclosure.

Charles Bourne


Sinclair v IC and Department for Energy and Climate Change (EA/2011/0052) concerned a request under the EIR from the Taxpayers’ Alliance for information on the potential financial and/or economic cost of Britain meeting a pledge to cut emissions by 42 per cent from 1990 levels by 2020. This pledge had been considered in connection with the Copenhagen Conference on climate change in 2009.

DECC refused this request, relying on regulations 12(5)(a) (disclosure would adversely affect international relations) and 12(4)(e) (internal communications).

In one of the first applications of the “aggregation” approach to the public interest test approved by the ECJ in the OFCOM case (on which, see here), the Commissioner held that the composite aggregated weight of the public interest factors in maintaining the two exceptions outweighed those which favoured disclosure – the international relations exception alone would not have sufficed.

The Tribunal was sufficiently impressed by DECC’s evidence to conclude that aggregation was not needed – the public interest in maintaining the international relations exception was sufficient to outweigh that in disclosure.

Interestingly, the Tribunal also considered an Article 10 ECHR argument: the appellant relied on that Article in support of his right to the requested information. The Tribunal found that Article 10 did not assist the appellant on the facts of his case. Its views on the application of Article 10 to information rights more generally was as follows.

In terms of authorities supporting the application of Article 10 to information rights, the high point was the Second Chamber decision in the ECtHR in Társaság a Szabadságjogokért v Hungary (Application no. 37374/05), in which the state had conceded that Article 10 rights were engaged where a civil liberties pressure group requested information about a complaint to the Constitutional Court.

Previous Grand Chamber authorities, however, had consistently rejected the proposition that Article 10 supported a right of access to official information.

The Tribunal is required to follow any clear and consistent Strasbourg jurisprudence. It found that “there is as yet no clear decision that Article 10 extends as far as Mr Sinclair submitted”.

11KBW’s Holly Stout appeared for the Information Commissioner.

Robin Hopkins


In Benson v IC and the Governing Body of Buckinghamshire New University (EA/2011/0016), the public authority relied upon s. 12 FOIA (cost of compliance) in refusing the multi-part request. In so doing, it aggregated the requests, i.e. it looked at the cost of complying with all parts of the request cumulatively, rather than on a part-by-part basis. Regulation 5(1) of the 2004 Fees Regulations allows for the aggregation of requests where two or more requests made by or on behalf of the same person within a 60-day period “relate, to any extent, to the same or similar information”. The Commissioner agreed with the public authority. He referred to Fitzsimmons v IC and DCMS (EA/2007/0124), where the Tribunal had emphasised the width of the test for aggregation (“to any extent”; “same or similar”).

The Commissioner also took the view that requests were similar where there was an “overarching theme” or “common thread” running between them in terms of the nature of the information requested.

The Tribunal allowed Mr Benson’s appeal. Much turned, of course, on the specific facts. But those who encounter or apply s. 12 FOIA will wish to note the following more general observations (see paragraph 29).

First, tests such as “overarching theme” or “common thread” were, in the Tribunal’s view, not compelling, because they raised concepts not used in the legislation itself.

Secondly, any consequent uncertainty should be resolved in the requester’s favour (though it is not immediately clear whether this last point was intended to be case-specific or more general).

Robin Hopkins