[2024] UKUT 320 (AAC)

I received helpful oral and written detailed submissions from both Mr Craddock and Mr Metcalfe on the matters raised by this appeal. I intend them no disrespect by summarising their respective positions in relatively short order in relation to each of the three grounds of appeal. I do so if only to keep the length of this decision within reasonable bounds.

The Appellant’s primary submission was that the First-tier Tribunal had erred in law in finding that the tithe information available to view at the Council’s archive centre was ‘publicly available’ within the meaning of EIR regulation 6(1)(b). At first blush (and indeed I find on further analysis) this is an ambitious argument – how can maps (whether the original maps or the digital copies) available for viewing in the Council’s Searchroom in Maidstone be other than ‘already publicly available’? Mr Craddock sought to square this circle by reference to regulation 8(2)(b). This provides that in every case where the public authority is entitled to charge a fee for disclosure of the information, the requester is entitled without charge ‘to examine the information requested at the place which the public authority makes available for that examination’. Such information is necessarily ‘publicly available’. Mr Craddock’s submission was that the First-tier Tribunal erred in law in finding that the phrase ‘publicly available’ in regulation 6(1)(b) meant no more than what is inevitably required of any public authority in relation to disclosure under the EIR – namely to make the information available for inspection on its premises. If regulation 6(1)(b) merely alluded to the expectation imposed on a public authority by virtue of regulation 8(2)(b) to make any and all environmental information available for inspection on its premises free of charge, the words ‘already publicly available and’ in regulation 6(1)(b) are redundant. Accordingly, Mr Craddock argued, regulation 6(1)(b) required something more for information to be (as he put it) genuinely ‘publicly available’, e.g. being put in the public domain by disclosure on a website or in a public library. He referred further to the Directive (including the French language text of article 3(4)(a)) and the Convention in support of this proposition.

The Respondent’s core submission was straightforward: the First-tier Tribunal had (unsurprisingly) concluded, applying the natural and ordinary meaning of the words, that ‘publicly available’ under regulation 6(1)(b) meant ‘available to the public’, i.e. that ‘the information is not restricted from any person in principle’ (paragraph [44]). On the particular facts of this case, it had gone on to find that the Council had made the tithe maps ‘publicly available’ by making them available for inspection at its archive facility in Maidstone. There was no warrant, Mr Metcalfe contended, for the Appellant’s gloss of ‘something more’ to be applied to the natural and ordinary meaning of the words of regulation 6(1)(b): information was either ‘publicly available’ or it was not. To satisfy the requirements of the regulation, the information must also ‘already’ be available at the time of the request. One very common means of making information ‘publicly available’ was to make it available to the public by enabling them to inspect the documents at a particular place (hence the reference in regulation 8(2)(b)). But neither the Convention, the Directive nor the EIR stipulated the precise form or format by which a public authority might make environmental information ‘publicly available’. It could be in a library, on a website or in a council archive, so long as the core requirement of public availability was met.