ECJ opinion of Advocate General in OFCOM v Information Commissioner

On 10 March 2011, an opinion was delivered by Advocate General Kokott in OFCOM v Information Commissioner, which the Supreme Court referred to the Court of Justice for a preliminary ruling on the issue of how the public interest balancing test in the Environmental Information Regulations should be approached when two or more exceptions to disclosure are engaged:

The courts of the United Kingdom disagree as to how this balancing exercise is to be undertaken where several interests deserving of protection are simultaneously undermined. Is each exception to be addressed separately, by considering whether the interest served by it or the public interest served by disclosure prevails (the view taken by the courts at the first two instances and by a minority of the judges of the Supreme Court submitting the reference for a preliminary ruling)? Or can the interests served by different exceptions be combined and then together weighed against the public interest served by disclosure (view taken at third instance and by the majority of the Supreme Court)?

The Advocate General backed cumulation and the view of the majority of the Supreme Court:

Contrary to the view expressed by Sweden and the Information Commissioner, the use of the term ‘interest’ in the singular does not preclude a cumulation of several interests...

Nor does emphasis on the particular case in which the balancing exercise is to be carried out proscribe cumulation. As argued by the United Kingdom, the more obvious interpretation is that the term ‘in the particular case’ means that it relates to the specific decision that is pending on the disclosure of information. 

Furthermore, 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.
...
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.

The Court will now deliberate and its judgment will be pronounced shortly. Advocates generals opinions are not binding on the Court but are followed in the majority of cases.