[2024] UKUT 320 (AAC)

The Commissioner considers that the use of the phrase “particular form or format” means that a requester may specify not only the physical form but also how the information is configured or arranged within that form, i.e., the format. For example, in relation to electronic information the term ‘format’ is generally used to refer to a file type, such as PDF or Microsoft Excel or CSV, and so a requester may express a preference for one of these formats. In this instance, the complainant has requested the information by electronic form.

The Commissioner’s guidance on regulation 6 states that the EIR Code of Practice explains why a preference for a particular form or format must be considered:

“A public authority should be flexible, as far as is reasonable, with respect to form and format, taking into account the fact, for example, that some IT users may not be able to read attachments in certain formats, and that some members of the public may prefer paper to electronic copies”. (Paragraph 22)

However, the duty to make the requested information available in the preferred form or format is not an absolute one. It is qualified by regulations 6(1)(a) and 6(1)(b) in that a public authority does not have to meet the requester’s preference if either it is reasonable for it to make the information available in another form or format, or the information is already publicly available and easily accessible to the applicant.

Although the Council hasn’t specifically cited which subsection of regulation 6(1) it is relying upon, it has clearly stated that it considers the requested information to be publicly available and easily accessible to the complainant. Therefore the Commissioner considers that it is relying upon regulation 6(1)(b).

The complainant requested from Kent County Council (“the Council”) historic maps that are stored at the local records office. The Council refused to provide the requested information under regulation 6(1)(b) of the EIR, as it considered the information requested to be publicly available and easily accessible to the complainant.

The Commissioner’s decision is that the information is publicly available and easily accessible to the complainant, and therefore regulation 6(1)(b) of the EIR is engaged.

The Commissioner does not require any steps to be taken.

By his Decision Notice, the Commissioner stated that although the Council had not specified the sub-section of Regulation 6(1) EIR on which it relied to refuse disclosure, he considered that it was relying on Regulation 6(1)(b) on the basis that the Council had stated that it considered the requested information was publicly available and easily accessible. He concluded that: any decision about whether information is easily accessible depends upon the circumstances; while he recognised that the Appellant would need to travel to the Archive centre, incurring both time and cost which would multiply depending upon the amount of separate visits needed, he also recognised that the information was made available for inspection at the centre, which is a local records office, whose purpose is to maintain historic records and allow their public inspection; he was satisfied that the information was publicly available and easily accessible to the Appellant at a facility established and maintained for the purpose of examination of the information, and that accordingly Regulation 6(1)(b) was engaged. He noted that he had not considered the Council’s application of Regulation 8 EIR which appeared to have been based on a misunderstanding of the EIR, and that “if information is publicly available and easily accessible for the purposes of the EIR, the Council is not required to make the information available in another form or format.”