[2024] UKUT 320 (AAC)

The Appellant submitted that, if we were to find that the Council was entitled to rely on Regulation 6(1)(b) EIR to refuse the Request, the information ought to be disclosed under FOIA. This was on the basis that if the Council is not required to make the information available under EIR because of the application of Regulation 6(1)(b), the information nevertheless satisfies section 39(1)(a) FOIA because the information must be made available under EIR, and is not therefore exempt under section 39(1)(b).

The Commissioner’s position is that the information requested is environmental information which falls to be considered by EIR not by FOIA; section 39(1)(a) FOIA provides that information is exempt information if the public authority holding it is obliged by environmental information regulations to make the information available to the public in accordance with those regulations.

We do not accept the Commissioner’s submission (as we understood it) that disclosure of environmental information does not fall to be considered under FOIA, only under EIR. We read section 39 FOIA as acknowledging EIR as the paramount but not exclusive regime governing the disclosure of environmental information. The legislation is effectively linked in that section 39(1) FOIA gives an exemption under FOIA for information which the public authority (a) is obliged by EIR to make available, or (b) would be obliged by EIR to make available were it not for an exemption in EIR. However, the FOIA exemption is a qualified exemption so that the public interest in maintaining the exemption must outweigh the public interest in disclosure.

The Appellant speculated in his Reply to the Commissioner’s Response to his Notice of Appeal as to what public interest might justify withholding the information in the form sought, even though this was not an issue which the Commissioner addressed in his Response (or in the Decision Notice). The Appellant noted that in the Commissioner’s published guidance “Charging for information under the Environmental Information Regulations (EIR)”, the ICO has stated “Section 39 of FOIA states that information is exempt from disclosure under the Act if the public authority is obliged to disclose the information under the EIR. The exemption is subject to a public interest test. Although there is a public interest in making information freely available under FOIA, the ICO considers that there is an overriding public interest in implementing the EIR as intended by the Directive. Therefore, the ICO would not accept the argument that it would be in the public interest for requests chargeable under the EIR to be handled under FOIAinstead.” The Commissioner also did not address the issue of the public interest in his final written submissions.

The Appellant inferred that perhaps the Council did not wish its intellectual property rights in the map data to be prejudiced by proliferation of the data in the public domain e.g. if it were to place the data on a website. He submitted that the placing of the data in the public domain would indirectly achieve the objectives of the Directive; that the Council had received a substantial grant to digitise the maps so that the public might have access to the data; the Convention recognises that public authorities hold environmental information in the public interest; and the Convention Guidance refers to the requirement of public authorities to serve the needs of the public, including individual members of the public.

It may be that it was implicit in the Commissioner’s position that there is a public interest in upholding EIR as the exclusive regime to govern disclosure of environmental information. It is not obvious to us, however, that there is a public interest in upholding EIR as the exclusive regime, and, absent submission from the Commissioner on the public interest point in any event, we are not satisfied, in all the circumstances of the case, that the public interest in maintaining the exemption can be said to outweigh the public interest in disclosing the information. On that basis, we do not find that the information is exempt from disclosure under FOIA.

Accordingly, it is necessary for us to consider section 21 FOIA, which provides that information which is reasonably accessible to the applicant otherwise than under s1 FOIA is exempt from disclosure under FOIA. Information is to be regarded as reasonably accessible to the applicant even though it is accessible only on payment (section 21(2)(a)), and if it is information which the public authority is obliged by or under any enactment to communicate (otherwise than by making the information available for inspection) to members of the public on request, whether free of charge or on payment (section 21(2)(b)).

We read section 21(2) as identifying non-exclusive circumstances in which information might be characterised as reasonably accessible. Section 21(2)(a) is of no relevance as the Council is not making the information available to the Appellant under the EIR on condition of payment. We do not consider that the information falls to be characterised as reasonably accessible under section 21(2)(b) as the Council is not obliged to communicate the information in the maps to the Appellant (as distinct from making it available to him).

Section 21(1)(3) provides that information which does not fall within section 21(2)(b) is not to be regarded as reasonably accessible to an applicant merely because it is available from the public authority on request, unless the information is made available in accordance with the authority’s publication scheme and any payment required is specified in, or determined in accordance with, the scheme. Although the tithe maps are not available in accordance with the Council’s publication scheme, in our view, it is not right to characterise the information in the maps as being available on request. The Council has made the information publicly available. The request which an applicant must make is only to enable practical arrangements for inspection to be made.

We consider that the information is to be regarded as reasonably accessible to the Appellant within the meaning of section 21 FOIA. We accept that he must travel, at a cost and with expenditure of time, to the Searchroom but we do not consider that this means the information is not reasonably accessible by him. The Searchroom opening hours are generous. He has not suggested that any of the information is not readily accessible at the point of the screen in the Council’s Searchroom. We remind ourselves of the Appellant’s position that accessibility of information entails the ability to capture, retain and take it away for study. As we have already observed, we do not consider that such matters properly inform a determination of accessibility per se. We conclude, therefore, that the information is exempt from disclosure pursuant to section 21 FOIA.

In circumstances where we find that the information is exempt from disclosure pursuant to Regulation 6(1)(b), it is not necessary for us to address the Appellant’s submissions as to the reasonableness of the Council’s proposed charges for copies of the maps under Regulation 8 EIR.