CR2-09-11-17-Session1_IMX30_1.mxf

Session: am
Session date: 2009 Nov 17

CASE ID: UKSC 2009/0168
Case name: Office of Communications (Respondents) v The Information Commissioner (Appellant)
Case summary:
Judgment: The Supreme Court unanimously holds that the appeal raises an issue of general principle and that the answer is not obvious. Different members of the Court hold different views on the correct construction of Environmental Information Regulations 2004, and Directive 2003/4/EC which they implement. Consequently, the Supreme Court is under a duty to refer the question in the appeal to the European Court of Justice (paras [3], [10], [14]).
Reasons for the judgment: The question referred to the European Court under Article 267 of the Treaty on the Functioning of the European Union is: “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?” (para [15]) A majority of the Court would have upheld the judgment of the Court of Appeal. The majority consider that there are certain linguistic clues in the Directive which favour an aggregate weighing exercise which considers the overall public interest. The diversity of reasons is a positive reason to accumulate them, and certain heads already involve more than one public interest (paras [10], [12]). The minority of the Court also finds linguistic clues in the Directive to suggest that no cumulation of factors is possible given the disparate public interests involved which considered together would produce incongruities and be impractical (para [13]).
Hearing start date: 2009 Nov 17
Hearing end date: 2009 Nov 17