[2024] UKUT 320 (AAC)

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.