[2024] UKUT 320 (AAC)

The Appellant submitted that, notwithstanding the EIR, environmental information may be disclosable under FOIA. He recognised that such disclosure may potentially be exempt under section 39(1), but that exemption is qualified, not absolute, and so is subject to the public interest test (see further section 2(2)(b) and 2(3)). Mr Craddock argued that there was accordingly a twin-track regime in relation to environmental information, an approach which was consistent with the UK’s international obligations under both the Convention and the Directive. There was, he contended, no public interest which required the First-tier Tribunal to find that the tithe information was exempt from communication under section 39 of FOIA.

Turning to section 21, the Appellant submitted that the First-tier Tribunal fell into error in concluding that the display of the tithe information on a computer terminal in the Council’s archives centre complied with the requirement that such information should be ‘reasonably accessible’ to the Appellant. Mr Craddock contended that, if there is any material difference in the meaning of ‘easily accessible’ (in EIR regulation 6(1)(b)) and ‘reasonably accessible’ (in FOIA section 21), the First-tier Tribunal was nevertheless wrong in law to construe ‘accessible’ (in either context) so as to exclude consideration of how the information presented on screen might then be taken away and used. The Appellant further submitted that the First-tier Tribunal failed correctly to interpret and apply the statutory criteria in section 21(2) and (3) as to what should be considered to be, or not to be, ‘reasonably accessible’.

The Respondent submitted that the First-tier Tribunal, having concluded that the exemption from the disclosure of environmental information in section 39(1)(b) was engaged, had erred in concluding that the balance of the public interest in disclosing the tithe maps outweighed that in maintaining the exemption. The Commissioner contended that while the exemption under section 39 is a qualified one, there is nonetheless an overriding public interest in implementing the EIR as intended by the Convention and the Directive, which includes dealing with all requests for environmental information under its framework. The Commissioner further argued that, given the fact that public authorities have an obligation to respond to requests for environmental information under the EIR, it was hard to envisage any circumstances where it would be in the public interest for the authority to also consider that information under FOIA. The UK’s international obligations may not be so lightly set aside, Mr Metcalfe submitted, at least not without the First-tier Tribunal first having identified some similarly weighty but countervailing public interest in disclosure.

If section 39 did not render the environmental information in question exempt, the Commissioner submitted in the alternative that the tithe maps were in any event exempt from disclosure under section 21 for the reasons given by the First-tier Tribunal at paragraphs 64-68 of its decision (see paragraph 62 above).

Thus, in a nutshell, Mr Craddock submitted that the First-tier Tribunal had correctly applied section 39 but had erred in its application of section 21. The Information Commissioner, on the other hand, contended that the First-tier Tribunal had erred in its treatment of section 39 but (if he was wrong about that) had approached section 21 correctly.