[2024] UKUT 320 (AAC)

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.