[2024] UKUT 320 (AAC)

We are conscious that the close analysis of the Convention and the Directive invited by the Appellant, may tend to conflate the issue of the Council’s fundamental compliance with Regulation 4 EIR (and behind EIR, the Directive), which is not an issue before us, with the interpretation of the words “publicly available” within Regulation 6(1)(b) EIR for the purposes of considering the lawfulness of the Decision Notice, which is an issue before us. The question before us is whether the access currently afforded by the Council is such as to enable the information properly to be characterised as “publicly available” (and “easily accessible”, with which separate concept we deal below) so as to engage the application of Regulation 6(1)(b).

We do not consider that there is any ambiguity in the words “publicly available” which requires us to draw on the Directive or the Convention behind it to understand them, nor any words we need to imply or read in to give effect to the Directive’s intention - which is, in summary, that such information should be publicly available, promoting the use of electronic technology, including telecommunication networks, where available. We consider that “publicly available” means “available to the public”. We consider that the information which is subject of the Request is available to the public in the ordinary sense of those words: the information is not restricted from any person in principle. Both the Convention and the Directive set out non-exclusive methods by which that should be achieved, with an exhortation for the use of electronic methods where possible. In this case, the method by which the relevant information is made available to the public is as set out in the Council’s letter of 21 October 2022, to which we have already referred. The progressive dissemination of information by electronic means is a separate, ancillary issue (as the means by which the Directive and Convention would prefer information to be made available); the primary consideration is whether information is publicly available.

The Appellant has submitted that for information to be properly characterised as publicly available, it must be “genuinely” publicly available, which means published in a library or on a website or in a publication scheme. We do not consider that the availability to the public of the digital maps in the Council’s Searchroom is any less “genuine” than that which might be achieved by publication of the types identified by the Appellant, and is consonant with the requirements of Article 3(5)(c) of the Directive. Such publications are some, but not the only, methods of making the information available to the public. Moreover, the information has been made available using electronic technology, even though not published online. We accept that, were the information to be published online, that may be more convenient to the Appellant himself (even if not to someone who did not have internet access and for whom the information would only be available by a visit to the Searchroom), but we consider that that raises an issue of access rather than ‘availability’ in principle.