[2024] UKUT 320 (AAC)

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.