Release of information relating to radio spectrum under the Environmental Information Regulations (EIR)
Our spectrum management strategy highlighted that spectrum information is an area of increased emphasis for Ofcom, as information on spectrum access, authorisation and use are critical to support our spectrum management functions and stakeholders’ decision making. As part of this work on 24 November Ofcom will be publishing more information on licensed spectrum in the UK. This will be done by extending our online tool, the Wireless Telegraphy Register (WTR). Information will be available on over 80 thousand licences, covering a much wider range of different types of spectrum use licensed by Ofcom. The level of technical information available on each licence will also be extended beyond that previously available.
This update sets out our policy on the progressive disclosure of Wireless Telegraphy Act 2006 (the “WT Act”) licence information that we hold, under the Environmental Information Regulations 2004 (EIR). This follows on from the consultation in 2009 and subsequent statement.
As a public authority, Ofcom is subject to the requirements of the Freedom of Information Act 2000 (FOIA) and EIR among others. These require us to make available requested information we hold to the general public except where the information is covered by an exemption or exception to disclosure, and in some cases, it is in the public interest not to disclose. Under EIR we are also required to progressively make environmental information available to the public by electronic means. After reviewing the information contained in WT Act licences issued by us, it became apparent that certain information that we hold is classified as environmental information and thus covered by the EIR.
We recognise the role that radiocommunications services play in safeguarding critical national infrastructure (CNI). Given this we have put in place a process whereby licensees wishing to have information relating to their Wireless Telegraphy licence withheld can request for this to be withheld from publication under EIR. This document outlines the procedures that a licensee must follow in order for Ofcom to consider a request for non-disclosure under EIR.
There are a number of limited exceptions under the EIR that may prevent certain information from being disclosed, these exceptions being mainly due to disclosure adversely affecting defence, national security and/or public safety. Working with the Centre for the Protection of National Infrastructure (CPNI) and other Government departments we have set up a process to allow us to evaluate any requests for non-disclosure.
We ask for those stakeholders who consider that their information, relating to a licence, falls under one of these exceptions and wishes for the information not to be disclosed contact us with supporting evidence following the process outlined below. Whilst this assessment is being carried out we will not publish this information until the outcome has been determined.
For those requesting an exception of more than one site, we require the justification and evidence for each site. We will not accept a blanket statement covering entire networks.
EIR exception evaluation process
The evaluation process is open to all stakeholders with new licence applications. Existing licensees had an opportunity to submit their applications during the period after our statement in 2010. To help us to understand and assess how critical the system is and the impact that disclosure would have, we have devised a forma (copies available on our website http://stakeholders.ofcom.org.uk/spectrum/information/nondisclosure) – in relation to national security, defence and public safety claims. We would ask that all those stating an exception for a specific site under EIR to provide information in this format. The submission period for requests for exemption is open when applications are made. We would welcome any additional supporting material including Government support of the application as part of this process.
In order for us to make an informed decision on the requests for exception, we will be working closely with CPNI who have agreed to advise us on CNI related issues and co-ordinate with Government on this area. For non-CNI related issues we will discuss the matter with the sponsoring government department where relevant.
Once we receive the completed pro forma, we will assess the request and if necessary forward it on to the relevant part of Government who will advise us as to its consideration of the impact of disclosure of such information and the merits of the exception case put forward – and any related public interest considerations. We are not looking for a blanket statement but evidence in relation to particular sites.
Elements of national infrastructure are graded into five levels based on their importance, the top three levels being (3 - 5). As part of our discussions with CPNI, it has been agreed that a site or asset which is recognised in government as CNI categories 3 to 5, we will forward them to the CPNI. The CNI working group will formally assess each request. For non-CNI related information, we will contact the sponsoring Government department for their advice and in cases dealing with National Security we will also be in contact with the National Security Liaison Group (NSLG).
Whilst a request is going through the assessment process, we will not release any of the relevant information until the evaluation has been completed.
Any claim that disclosure of a particular piece of information would adversely affect defence/national security and/or public safety must be supported by appropriate evidence; as should any claims that such disclosure would be against the public interest. It would be useful and speed up the process if such information could be provided in detail with the application or delivered separately if required.
Without appropriate supporting evidence that backs up ascertains made in the application, we will disclose the Information.
Please note, for an exception to be granted under EIR, it needs to be shown that the release of such information would adversely affect any of the exceptions listed in regulation 12(4) or (5). For Ofcom to engage a Regulation 12(5) exception for national security, following the Information Commissioner’s guidance, we would have to show:
- It is required for the purposes of safeguarding national security;
- It has not been applied in a blanket fashion; and
- There must be evidence that disclosure of the information in question would pose a real and specific threat to national security.
Any decision to support a request to withhold information from release is also subject to a public interest test. This could mean that even though the information may be covered by an exception, the information would still be disclosed unless the public interest is against such disclosure. In the EIR, there is a clear bias in favour of publication and where an exception(s) is applied, Ofcom would be expected to demonstrate why it is still in the public interest not to disclose. If we are unable to do so, in these cases we would have no option other than to release. Therefore, any completed pro forma would also have to set out why it is in the public interest not to disclose information – as against each exception separately and also as a whole (i.e. aggregating the relevant public interest considerations).
Without appropriate supporting evidence as to the public interest in non-disclosure of the Information for each site, we will disclose the Information.
For companies and organisations that have the necessary supporting evidence of exception and it is not in the public interest to disclose, we will not disclose the information under Regulation 4. However, separately, under Regulation 5, if we receive any future requests for information under EIR this would still have to be reviewed again based on the merits of each single request.
We will notify licensees with our decision on their request for exception as soon as practically possible after the decision has been made.
Under Regulation 2 (1) of the EIR, the definition of "environmental information" refers to any information in written, visual, aural, electronic or any other material form on:
- the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
- factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
- measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;
- reports on the implementation of environmental legislation;
- cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
- the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).
Following a dispute involving information relating to the Sitefinder database, it is now understood that information about transmission masts falls under EIR. This was the conclusion of the Information Commissioner and Information Tribunal, as part of their consideration of whether Ofcom was able under the EIR to refuse to disclose the national Sitefinder dataset and this finding was not appealed by either Ofcom or T-Mobile.
As part of the case, not only did the Information Tribunal consider that such information was environmental information for the purposes of EIR, but also that it was environmental information which relates to emissions and thus only limited exceptions applied if Ofcom chose not to disclose such information. Specifically the Information Tribunal concluded that:
“"emissions" in both subparagraph (b) of the definition of environmental information and regulation 12(9) should be given its plain and natural meaning and not the artificially narrow one set out in the Integrated Pollution Prevention and Control Directive. As we have indicated it is accepted, on that basis, that radio wave radiation emanating from a base station is an emission.”
“we believe that radio wave emissions that pass through the atmosphere from a base station to any solid component of the natural world are likely to affect one or more of the elements listed in subparagraph (a) [Regulation 2 (1)(a)] or the interaction between some of them. Accordingly we conclude that the radiation from a base station falls within the meaning of the expression “environmental information”.”
The name of the operator fell under the definition of EIR as determined by the Information Tribunal. It ruled that:
“The name of a person or organisation responsible for an installation that emits electromagnetic waves falls comfortably within the meaning of the words "any information… on… radiation". In our view it would create unacceptable artificiality to interpret those words as referring to the nature and effect of radiation, but not to its producer. Such an interpretation would also be inconsistent with the purpose of the Directive, as expressed in its first recital, to achieve "… a greater awareness of environmental matters, a free exchange of views [and] more effective participation by the public in environmental decision making…"
We are keen to ensure that our requirement to release information under the EIR does not jeopardise defence/national security. Whilst we acknowledge that some radio systems play an important part in controlling business processes whose interruption would have serious security and safety of life implications, they also support a number of non-critical activities.
In order to ascertain whether the release of information relating to a particular radio service would pose a risk to national security or public safety, we have put in place a process with Government in order to assess with such a release of information would fall under one of the EIR exemptions. This process will ensure that information that does pose a risk to national security is not disclosed.
For information not to be published we need evidence that the publication of information regarding a transmission site would be a risk to national security and/or public safety. Working with the Centre for the Protection of National Infrastructure (CPNI) and Government we have set up a process to evaluate all requests for non-disclosure. The evaluation process is open to all stakeholders with new licence applications. We ask that requests for non-disclosure of new licence applications use the form provided and provide supporting evidence.
For an application to be successful we require clear evidence that it is more probable than not that the alleged harm would occur if the information were released. We would welcome any additional supporting material including written support from sponsoring Government departments as part of this process.