Hugh Denis Craddock v The Information Commissioner

The Information Commissioner dealt with the application of regulation 6 in the following way:

The First-tier Tribunal reviewed the parties’ respective submissions on what was meant by the expression ‘publicly available’ in regulation 6(1)(b) in some detail in paragraphs [25]-[42] of its decision. It then expressed its conclusions at paragraphs [43]-[45]:

I received helpful oral and written detailed submissions from both Mr Craddock and Mr Metcalfe on the matters raised by this appeal. I intend them no disrespect by summarising their respective positions in relatively short order in relation to each of the three grounds of appeal. I do so if only to keep the length of this decision within reasonable bounds.

The Appellant’s primary submission was that the First-tier Tribunal had erred in law in finding that the tithe information available to view at the Council’s archive centre was ‘publicly available’ within the meaning of EIR regulation 6(1)(b). At first blush (and indeed I find on further analysis) this is an ambitious argument – how can maps (whether the original maps or the digital copies) available for viewing in the Council’s Searchroom in Maidstone be other than ‘already publicly available’? Mr Craddock sought to square this circle by reference to regulation 8(2)(b). This provides that in every case where the public authority is entitled to charge a fee for disclosure of the information, the requester is entitled without charge ‘to examine the information requested at the place which the public authority makes available for that examination’. Such information is necessarily ‘publicly available’. Mr Craddock’s submission was that the First-tier Tribunal erred in law in finding that the phrase ‘publicly available’ in regulation 6(1)(b) meant no more than what is inevitably required of any public authority in relation to disclosure under the EIR – namely to make the information available for inspection on its premises. If regulation 6(1)(b) merely alluded to the expectation imposed on a public authority by virtue of regulation 8(2)(b) to make any and all environmental information available for inspection on its premises free of charge, the words ‘already publicly available and’ in regulation 6(1)(b) are redundant. Accordingly, Mr Craddock argued, regulation 6(1)(b) required something more for information to be (as he put it) genuinely ‘publicly available’, e.g. being put in the public domain by disclosure on a website or in a public library. He referred further to the Directive (including the French language text of article 3(4)(a)) and the Convention in support of this proposition.

The Respondent’s core submission was straightforward: the First-tier Tribunal had (unsurprisingly) concluded, applying the natural and ordinary meaning of the words, that ‘publicly available’ under regulation 6(1)(b) meant ‘available to the public’, i.e. that ‘the information is not restricted from any person in principle’ (paragraph [44]). On the particular facts of this case, it had gone on to find that the Council had made the tithe maps ‘publicly available’ by making them available for inspection at its archive facility in Maidstone. There was no warrant, Mr Metcalfe contended, for the Appellant’s gloss of ‘something more’ to be applied to the natural and ordinary meaning of the words of regulation 6(1)(b): information was either ‘publicly available’ or it was not. To satisfy the requirements of the regulation, the information must also ‘already’ be available at the time of the request. One very common means of making information ‘publicly available’ was to make it available to the public by enabling them to inspect the documents at a particular place (hence the reference in regulation 8(2)(b)). But neither the Convention, the Directive nor the EIR stipulated the precise form or format by which a public authority might make environmental information ‘publicly available’. It could be in a library, on a website or in a council archive, so long as the core requirement of public availability was met.

I find this ground of appeal is not made out for the following reasons.

The starting point must be the natural and ordinary meaning of the words used in regulation 6(1)(b). As a matter of linguistic construction, one can hardly cavil with the First-tier Tribunal’s conclusion that ‘publicly available’ means ‘available to the public’, no more and no less. Moreover, on the evidence it would have been positively perverse for the First-tier Tribunal to have found as a fact that the tithe maps were other than ‘already publicly available’. It is, as Mr Metcalfe submitted, in effect a binary question – the information is either ‘publicly available’ or it is not. The fact that it could have been made additionally available to the public through other mediums is beside the point.

Nor can this be fairly critiqued as a narrow and unduly technical reading of regulation 6(1)(b). It also makes sense if one has regard to the role of the provision within the overall framework of the EIR. Notably, regulation 4(1)(a) exhorts public authorities that hold environmental information to ‘progressively make the information available to the public by electronic means which are easily accessible’ – but while this may appear to impose a duty on public authorities, there is no corresponding right in Hohfeldian terms on the individual requester to receive information in such manner. Instead, one must turn for elucidation to regulation 5(1), which stipulates that ‘a public authority that holds environmental information shall make it available on request’. That duty in turn is subject to the contingent proviso in regulation 6(1) that ‘where an applicant requests that the information be made available in a particular form or format, a public authority shall make it so available, unless … (b) the information is already publicly available and easily accessible to the applicant in another form or format.’ There is considerable force in the First-tier Tribunal’s observation that the Appellant’s submissions tend to conflate the general duty under regulation 4 with the much narrower and targeted duty arising under regulation 6.

Nor was I persuaded by Mr Craddock’s submission that the First-tier Tribunal’s reading of regulation 6(1)(b) is circular – his case was that the EIR predicates that all environmental information (at least that which is not otherwise excepted from disclosure e.g. under regulation 12) must be made available to the public, and therefore all such environmental information is publicly available. It follows, the Appellant submitted, that ‘publicly available’ must means ‘something more’. One difficulty with this submission is that it overlooks the requirement in regulation 6(1)(b) that the information be ‘already publicly available’. The qualifying term ‘already’ necessarily can only mean that the information in question has previously been made actually available (rather than theoretically obtainable on request) to the public in some other format. Seen in this way, the First-tier Tribunal was entirely justified in finding that regulation 6 represented a balancing of the competing interests of public authorities and requesters respectively.

It follows that there is no ambiguity in the meaning of regulation 6(1)(b). As such, it is not appropriate to cast the interpretative net any wider. Mr Craddock’s learned submissions made extensive reference to both the Convention and the Directive, but neither instrument stipulates the precise form or format by which a public authority may or indeed must make environmental information ‘publicly available’ for the purposes of regulation 6(1)(b). Article 4(1)(b)(ii) of the Convention requires public authorities to make information available ‘in the form requested unless … the information is already publicly available in another form’ (and so, incidentally, imposes no test of ease of accessibility). In turn, article 3(4)(i)(a) of the Directive requires public authorities to make requested information available in a specified format unless ‘it is already publicly available in another form or format … which is easily accessible by applicants’. The international instruments provide no greater specificity. Accordingly, the Appellant gains no assistance from the EIR’s stipulation that ‘expressions in these Regulations which appear in the Directive have the same meaning in these Regulations as they have in the Directive’ (regulation 2(5)). Likewise, the finer nuances of the meaning of the verb ‘publier’ in the French text of the Directive constitute far too fine a thread on which to hang the Appellant’s preferred interpretation of ‘publicly available’.

Finally, and crucially, the pragmatic approach taken by the First-tier Tribunal to the meaning of the term ‘publicly available’ within regulation 6(1)(b) is entirely consistent with the analysis more recently adopted by the High Court in Surrey Searches Ltd and Others v Northumbrian Water Ltd and Others [2024] EWHC 1643 (Ch) (hereafter simply ‘Surrey Searches Ltd’). This important judgment determined the first phase of highly complex multi-party litigation raising issues about the application of the EIR in a case involving some 14 lead claimants and 11 defendants. The High Court’s judgment was handed down on 28 June 2024 and so was obviously not before the First-tier Tribunal in the present appeal (although, conversely, a passage from the Information Commissioner’s Decision Notice in the instant case does make a brief appearance in the High Court’s judgment (at [526])). I am grateful to Mr Craddock who very properly drew my attention to the High Court’s decision. I also note, if only for the record, that permission to appeal to the Court of Appeal was refused at first instance: Surrey Searches Ltd and Others v Northumbrian Water Ltd and Others [2024] EWHC 2283 (Ch). The case does not seem to appear on the Court of Appeal’s online Case Tracker for Civil Appeals (casetracker.justice.gov.uk).

Remarkably, the monumental judgment of Richard Smith J runs to a total of 765 paragraphs – and even so the judgment relates only to the stage 1 trial of just some of the issues arising for decision in the proceedings. In (the barest if not inadequate) summary, the claimants were personal search companies (PSCs) who carried out searches for use in commercial and residential sale and purchase transactions on behalf of solicitors and their clients. In particular, the claimants had sought water and drainage information from the defendant water and sewerage companies (WASCs) about properties in their areas. The claimants argued that the resulting CON29DW water and drainage reports constituted environmental information within the EIR and as such the defendants were obliged to make such information available for free or at least for no more than a reasonable charge.

One of the issues which fell for determination (‘Issue 3’) was whether any of the information in question was covered by regulation 6 of the EIR (or regulations 12 or 13), such that the defendants were not obliged to disclose it. In particular, was the information relevant to a CON29DW water and drainage information search report ‘publicly available’ in the same or a different format and ‘easily accessible’ for the purpose of regulation 6(1) (known in the Surrey Searches Ltd litigation as ‘Issue 3.1’)?

The generic issues raised by Issue 3.1 are discussed in Part I of the High Court’s judgment in Surrey Searches Ltd. Part I deals with introductory matters ([501]-[503]), the parties’ positions ([504]-[508]), the legislative scheme of regulation 6(1)(b) ([509]-[512]), the parties’ submissions respectively on ‘publicly available’ ([513]-[521]) and on ‘easily accessible’ ([522]-[527]) and an introduction to the application of regulation 6(1)(b) ([528]-[529]). The next and extensive section of the judgment (Part J) deals with the application of regulation 6(1)(b) to the particular circumstances of each of the defendants (or at least nearly all of them) in considerable and granular detail ([530]-[723]). Both Mr Craddock and Mr Metcalfe respectfully expressed some disappointment that the High Court’s discussion of the parties’ submissions on ‘publicly available’ ([513]-[521]) (and on ‘easily accessible’ ([522]-[527])) was not followed immediately thereafter by a passage explicitly setting out the judge’s findings about the scope and proper application of regulation 6(1)(b) on the basis of those submissions.

I do not share their sense of disappointment for three reasons.

First, the judge’s discussion in Part I (as opposed to Part J) of the parties’ submissions in Surrey Searches Ltd was not confined to a simple exposition or unvarnished summary of those representations. Rather, the discussion was accompanied by a series of critical observations on certain of those submissions. So, for example, the judge expressly rejected the claimants’ suggestion that regulations 5 and 6(1)(b) required the public authority to make available all the information it held to answer a request ([516]). Further, the judge found that it was sufficient for regulation 6(1)(b) purposes to satisfy a request for environmental information by its provision in combination with other publicly available material or tools ([517]). Crucially for present purposes, the judge concluded (at [520]) that (with my emphasis added):

Secondly, in the passage introducing Part J (the application of Issue 3.1 to the individual defendants) the judge made the following overarching points:

Thirdly, in Part J the judgment descends into the detailed granular findings of fact as to whether the provision made by the various WASCs amounted to the relevant information being both ‘publicly available’ and/or ‘easily accessible’ for the purposes of regulation 6(1)(b). However, in the extensive analysis in Part J there is not even the whisper of a suggestion that the concept of ‘publicly available’ connotes something more than simply being available to the public (if necessary on request). Likewise, as will be seen in relation to Ground 2, the judge draws a distinction between ease of access to information and re-use of that same information. Ultimately, the application of regulation 6(1)(b) was regarded as a paradigmatic fact-sensitive enquiry.

Thus, as Mr Craddock frankly but rightly conceded in his helpful supplementary skeleton argument, ‘the judgment, so far as is relevant, is almost entirely against the appellant’.

The question then arises as to the precedent status of the decision in Surrey Searches Ltd in the present proceedings. The starting point is that a decision of the High Court (other than historically under its supervisory jurisdiction) is not binding on the Upper Tribunal (see Gilchrist v Revenue and Customs Commissioners [2014] UKUT 169 (TCC); [2015] Ch 183 and Hussain v Waltham Forest LBC [2019] UKUT 339 (LC); [2020] 1 WLR 2723). But this only tells part of the story. As Upper Tribunal Judge Jacobs has observed ex cathedra, ‘A decision of the High Court will be followed by the Upper Tribunal as a matter of comity. Normally, it would be followed unless the tribunal was convinced that the judgment was wrong’ (Tribunal Practice and Procedure (5^th edn, 2019, para 13.78). Moreover, where specialised issues arise, the Upper Tribunal ‘may in a proper case feel less inhibited in revisiting issues decided even at High Court level, if there is good reason to do so’ (Secretary of State for Justice v RB [2010] UKUT 454 (AAC); [2012] AACR 31 at [41])].

Even if the construction of the EIR raises specialised issues, I am certainly not persuaded that there is good reason for revisiting the proper approach to regulation 6(1)(b). This question was not dealt with by the High Court by way of a side-wind – the treatment of regulation 6(1)(b) took up a total of some 222 of the 765 paragraphs in the judgment. I also bear in mind that the hearing of Stage 1 of Surrey Searches Ltd lasted for a month and engaged the services of the equivalent of a complete football side of 11 counsel including a stellar 5-a-side information rights team of King’s Counsel. If Mr Craddock’s arguments on the application of regulation 6(1)(b) were realistically likely to have any traction, I would have expected them to be ventilated in some way before Richard Smith J. They were not, which tells its own story.

It follows that the First-tier Tribunal did not err in law in relation to the question of whether the tithe information was ‘publicly available’ within the meaning of regulation 6(1)(b) EIR.

As is evident from the passage cited above (see paragraph 23), the Information Commissioner’s Decision Notice dealt with the ‘publicly available’ and ‘easily accessible’ tests together.

The First-tier Tribunal identified the Appellant’s central submission as being that‘“accessible” connotes not only the ability to access information but to make use of it, engaging consideration not only of issues such as the distance an applicant may need to travel to the Searchroom, and the associated costs, but the ease with which an applicant may review, capture and take away the information to study’ (paragraph [46]). The First-tier Tribunal expressed its conclusions on the issue as to whether the information sought was ‘easily accessible’ within regulation 6(1)(b) in paragraphs [50]-[54] of its decision:

In summary, the Appellant’s principal submission was that the requirement for the regulation 6(1)(b) test to be satisfied only if ‘the information is … easily accessible to the applicant in another form or format’ must be intended to confer some protection on the requester. If these words refer to the ability of the requester to ‘get at’ (in the First-tier Tribunal’s words) the information then, in order to have any effect, Mr Craddock contended, they must relate to the ability of the requester to go on and use the information. If they merely guarantee that the requester can ‘view’ the data, then they are doing no more than requiring compliance with the EIR. The requirement for the information to be ‘easily accessible to the applicant’, he argued, is intended to address not simply whether the applicant may view the information, but whether, in doing so, it is made available in some useful and potentially productive way.

The Respondent characterised the substance of the Appellant’s complaint not in terms of being that he cannot readily access the digital tithe maps at the Council’s facility (i.e. view them), but rather that the format in question is not a convenient one for the purposes of his own research. However, according to Mr Metcalfe, the test of accessibility under regulation 6(1)(b) is accessibility ‘to the applicant’, and not accessibility to his or her computer. Information may be ‘easily accessible’ to an applicant, even if it is provided in a form or format that is less convenient to him. Nor, he submitted, is there any support in either the EIR, the Directive or the Convention for the question of accessibility under regulation 6(1)(b) being determined by reference to either (i) the purposes an applicant may wish to use the information for, or (ii) the ease with which the applicant can transfer the information between his different devices. Again, although regulation 6(1) EIR and section 11(1) FOIA both enable applicants to receive information in a particular format, there is no requirement on the public authority under regulation 6(1)(b) to consider the reasonable practicability of doing so. The test is simply and solely whether the environmental information in question is (a) ‘already publicly available’; and (b) ‘easily accessible to the applicant’ in another format.

The summary of the parties’ respective positions in the previous two paragraphs necessarily focuses on the main area of disagreement as to the meaning of ‘easily accessible’. However, before turning to consider those core submissions, it is relevant to mention a different aspect of the notion of whether information is ‘easily accessible’, namely the question of travel to the place where the information in question is made ‘publicly available’.

In this latter respect the parties’ positions have arguably moved somewhat closer together over the course of these proceedings. In the appeal at first instance, the Appellant argued that both the distance the requester had to travel and the associated costs were relevant to determining whether the information was ‘easily accessible’. However, as we have seen, the First-tier Tribunal did ‘not consider that accessibility to information is properly determined by considerations of travel for the purposes of EIR’ (at [51]). In this further appeal, Mr Craddock wisely did not seek to argue that his personal circumstances (involving travel from his home in Surrey to the Council’s archive in Maidstone) meant that the tithe information was not ‘easily accessible’ to him. The Respondent, in turn, did not submit that the distance and costs of travel could never be relevant factors in the assessment of accessibility. The parties appeared to be at one that on the facts of the present case travel issues were simply not a live issue in determining ease of accessibility. Accordingly, I need say no more about that matter.

As noted above, the Appellant’s principal submission in relation to this ground of appeal was that the First-tier Tribunal had erred in finding that the information in the tithe maps was ‘easily accessible to the applicant in another form or format’ within the meaning of regulation 6(1)(b), on the basis that the maps could be viewed on a computer screen in the Council’s Searchroom. At the outset I recognise that access to on-screen information is (at best, and putting it mildly at that) inconvenient for Mr Craddock’s purposes – in order to be used in his further study and research, the information needs to be laboriously transcribed or (if indeed permitted) photographed in a series of overlapping screenshots which may well make solving a 1,000 piece jigsaw a walk in the park by comparison. However, the statutory requirement is that the information is ‘easily accessible to the applicant in another form or format’ and not that it is ‘easily accessible to and manipulable by the applicant in another form or format’. As the First-tier Tribunal found in colloquial but accurate terms, accessibility connotes the ability to ‘get at’ the information in question – nothing more and nothing less. Moreover, as Mr Metcalfe submitted, the test of accessibility under regulation 6(1)(b) is accessibility ‘to the applicant’, and not accessibility to their computer or other hardware.

Mr Craddock relied on a number of subsidiary submissions in support of his primary argument that regulation 6(1) is designed to confer on a requester the ability to specify the medium in which the information is made available, subject to the possibility that the public authority may supply the information in an alternative format if that is ‘easily accessible’ (including for its onward re-use) to the requester. However, on further analysis none of these arguments was found to be persuasive.

First, reliance was placed by the Appellant on the decision of the Court of Appeal in Innes v Information Commissioner and Buckinghamshire CC [2014] EWCA Civ 1086. There, Underhill LJ (giving the main judgment) observed that ‘Citizens are given the right of access to public information at least in part so that they can make use of such information. A construction of the Act which makes it easier for them to do so effectively is to be preferred’ (at [39]). However, that case concerned the obligation on a public authority under section 11(1) of FOIA to provide information in a ‘form acceptable to the applicant … so far as reasonably practicable’. But, as Mr Metcalfe submitted, whether a particular form of information is ‘acceptable to the applicant’ under that provision is an entirely different matter to whether the information itself is ‘easily accessible to the applicant’ in a particular form. Thus, the exception in regulation 6(1)(b) is concerned only with the applicant’s ease of access to the information in a particular form, not the reasonable practicability of providing it in that form.

Secondly, Mr Craddock relied on a series of decisions by the Compliance Committee established under the Convention to the effect that electronic information must be made available to a requester, it not being sufficient to respond to a request for information under article 4 by simply providing access to examine the information free of charge. However, as the Appellant rightly acknowledged, the Compliance Committee is not a court of law and its opinions are not binding under domestic UK law. Nor am I persuaded as a matter of statutory construction that there is sufficient ambiguity in the terms of regulation 6(1)(b) to warrant resort to such extrinsic materials.

Thirdly, the Appellant took issue with the First-tier Tribunal’s observation (at [50]) that ‘the exceptions from disclosure afforded by Regulation 6(1)(a) and (b) are intended, in our view, to balance against the rights of the applicant the burden on a public authority’. Mr Craddock contended that the Council’s position did nothing to alleviate any burden placed upon it but rather increased the cost burden. However, I agree with Mr Metcalfe that it is not for the First-tier Tribunal (nor indeed the Upper Tribunal) to take into account the costs which a public authority may legitimately take upon itself by deciding whether to provide information in a particular form. That is so even if either Tribunal were to consider that another form might conceivably be cheaper: judicial decision-makers are not well placed to make such findings, which are pre-eminently a matter for the public authority concerned.

Finally, there is another reason why I conclude that Ground 2 cannot succeed. This is because the First-tier Tribunal’s approach to the question of whether the information in question was ‘easily accessible’ is (again, as with the concept of ‘publicly available’) entirely consistent with the approach taken in the Surrey Searches Ltd judgment. That case in effect confirms that the EIR (and in particular regulation 6(1)) do not concern the right to re-use environmental information or the ease with which that can be done; rather, they only concern the right of access to such information in the first place. The High Court made extensive, detailed and granular findings of fact as to the provision of information made by the various water companies for the purposes of regulation 6(1)(b) being ‘easily accessible’. There was not even the remotest suggestion in Surrey Searches Ltd that inconvenience to the requester in terms of the ability to re-use the data in question was a material consideration in deciding the ease of accessibility test. Indeed, quite to the contrary, as the judge repeatedly observed that matters of convenience to the claimants and in particular their ability to re-use information should not be conflated with ease of access to that information (see e.g. Surrey Searches Ltd at [543], [549], [552], [565], [569], [591], [615], [633], [657], [673] and [709]). Thus, Richard Smith J rejected one submission made by the claimants on the basis that it conflated ‘ease of accessibility to the information in question (with which Reg 6(1)(b) is concerned) with the convenience to the user (with which it is not)’ ([608]). Furthermore, and in any event, on the facts the practical arrangements for accessing environmental information made by the water companies were typically rather more restrictive than those put in place by the Council in the instant appeal.

It follows that the First-tier Tribunal did not err in law in relation to the question of whether the tithe information was ‘easily accessible’ within the meaning of regulation 6(1)(b) EIR.

The third and final ground of appeal concerns the inter-relationship between the EIR and FOIA regimes. The legislative context is set by sections 39 and 21 of FOIA. Section 39 of FOIA provides for a qualified exemption for environmental information as follows:

Section 21 of FOIA in turn provides for an absolute exemption:

The First-tier Tribunal was faced with competing submissions from the parties as to the relevance of section 39 of FOIA:

The First-tier Tribunal rejected the Commissioner’s submission on the section 39 point, reasoning as follows:

The First-tier Tribunal accordingly went on to consider section 21 of FOIA:

The Appellant submitted that, notwithstanding the EIR, environmental information may be disclosable under FOIA. He recognised that such disclosure may potentially be exempt under section 39(1), but that exemption is qualified, not absolute, and so is subject to the public interest test (see further section 2(2)(b) and 2(3)). Mr Craddock argued that there was accordingly a twin-track regime in relation to environmental information, an approach which was consistent with the UK’s international obligations under both the Convention and the Directive. There was, he contended, no public interest which required the First-tier Tribunal to find that the tithe information was exempt from communication under section 39 of FOIA.

Turning to section 21, the Appellant submitted that the First-tier Tribunal fell into error in concluding that the display of the tithe information on a computer terminal in the Council’s archives centre complied with the requirement that such information should be ‘reasonably accessible’ to the Appellant. Mr Craddock contended that, if there is any material difference in the meaning of ‘easily accessible’ (in EIR regulation 6(1)(b)) and ‘reasonably accessible’ (in FOIA section 21), the First-tier Tribunal was nevertheless wrong in law to construe ‘accessible’ (in either context) so as to exclude consideration of how the information presented on screen might then be taken away and used. The Appellant further submitted that the First-tier Tribunal failed correctly to interpret and apply the statutory criteria in section 21(2) and (3) as to what should be considered to be, or not to be, ‘reasonably accessible’.

The Respondent submitted that the First-tier Tribunal, having concluded that the exemption from the disclosure of environmental information in section 39(1)(b) was engaged, had erred in concluding that the balance of the public interest in disclosing the tithe maps outweighed that in maintaining the exemption. The Commissioner contended that while the exemption under section 39 is a qualified one, there is nonetheless an overriding public interest in implementing the EIR as intended by the Convention and the Directive, which includes dealing with all requests for environmental information under its framework. The Commissioner further argued that, given the fact that public authorities have an obligation to respond to requests for environmental information under the EIR, it was hard to envisage any circumstances where it would be in the public interest for the authority to also consider that information under FOIA. The UK’s international obligations may not be so lightly set aside, Mr Metcalfe submitted, at least not without the First-tier Tribunal first having identified some similarly weighty but countervailing public interest in disclosure.

If section 39 did not render the environmental information in question exempt, the Commissioner submitted in the alternative that the tithe maps were in any event exempt from disclosure under section 21 for the reasons given by the First-tier Tribunal at paragraphs 64-68 of its decision (see paragraph 62 above).

Thus, in a nutshell, Mr Craddock submitted that the First-tier Tribunal had correctly applied section 39 but had erred in its application of section 21. The Information Commissioner, on the other hand, contended that the First-tier Tribunal had erred in its treatment of section 39 but (if he was wrong about that) had approached section 21 correctly.

This ground of appeal can be dealt with rather more shortly than the first two grounds. At the outset there is a procedural issue to mention. I referred earlier to the Information Commissioner in effect seeking to cross-appeal on the section 39 issue. On one view the Respondent should have sought permission to cross-appeal on that point. However, it is also arguable that permission is unnecessary as the First-tier Tribunal’s decision did not confer any additional benefit on the Commissioner, given the Tribunal’s finding on the section 21 point (see by analogy Secretary of State for Home Department v Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 216 (IAC) and HMRC v SSE Generation Ltd [2021] EWCA Civ 105). In any event, the permission requirement may be waived where it is fair and just to do so (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) rule 7(2)(a); see also rule 24(1B) and (1C)). The Commissioner had made his position clear in the response to the appeal and there was no prejudice to the Appellant, who made detailed written submissions and attended the oral hearing fully prepared to argue the section 39 point.

Turning then first to the section 39 question, the First-tier Tribunal correctly took as its starting point the different genesis of the EIR and FOIA respectively. The former, of course, is secondary legislation mandated by the Directive while the latter is domestic primary legislation. They also make different provision for disclosure. The First-tier Tribunal referred in this context (at paragraph 59 of its decision) to the observations by the (former) Information Tribunal in Rhondda Cynon Taff CBC v Information Commissioner (EA/2007/0065)):

In the instant case the First-tier Tribunal read section 39 ‘as acknowledging EIR as the paramount but not exclusive regime governing the disclosure of environmental information’. In my assessment there is considerable force in Mr Craddock’s submission that if Parliament had intended the EIR to be the wholly exclusive regime for public authorities handling requests for environmental information then it could and would have legislated to that effect. The very fact that section 39 provides for a qualified exemption and not an absolute exemption reflects a recognition that there could (albeit perhaps exceptionally) be some cases where environmental information was properly subject to disclosure under FOIA. In finding that the First-tier Tribunal did not err on the section 39 issue, I also bear in mind that it appears that the Commissioner did not make any effective submissions at first instance on the operation of the public interest test.

Moving onto the section 21 issue, I detect no error of law in the First-tier Tribunal’s approach. The linguistic distinction between information being ‘easily accessible’ (regulation 6(1)(b)) and ‘reasonably accessible’ (section 21) is at most cigarette paper thin. It follows that the First-tier Tribunal’s previous findings as to the meaning of accessibility have equal purchase here, and its reasoning at paragraph 67 accordingly discloses no error of law. The provisions of section 21(2) and 21(3) take Mr Craddock no further forward for the reasons given by the First-tier Tribunal at paragraphs 65 and 66 of its decision.

It follows that I agree with Mr Craddock so far as the application of the public interest test under section 39 is concerned. However, I agree with Mr Metcalfe on the section 21 issue. As a result, the substance of the third ground of appeal does not succeed.

Having considered but dismissed each of the Appellant’s three grounds of appeal, I therefore conclude that the decision of the First-tier Tribunal does not involve any material error of law. I accordingly refuse the appeal. The decision of the First-tier Tribunal stands (Tribunals, Courts and Enforcement Act 2007, section 11). My decision is also as set out above.