Hugh Denis Craddock v The Information Commissioner

For the purposes of regulation 6(1)(b) of the Environmental Information Regulations 2004, information is publicly available if it is available to the public. It need not also be published online, placed in a library, or supplied in a form convenient for the requester’s intended use.

Information is easily accessible if the applicant can readily obtain access to it in the alternative form or format. The test concerns access to the information, not its subsequent capture, transfer, manipulation or re-use. The assessment remains fact-sensitive.

The EIR and FOIA may operate in parallel. The qualified environmental-information exemption in section 39 of the Freedom of Information Act 2000 does not make the EIR wholly exclusive. On the facts, however, the information was reasonably accessible under section 21 FOIA.

The appellant requested electronic copies of approximately 425 digitised historic tithe maps held by Kent County Council. He asked that they be supplied on a portable hard disk or through file transfer. The Council instead made the original and digital maps available for free inspection at its archive Searchroom, with digital copies available for purchase.

The Information Commissioner decided that regulation 6(1)(b) of the Environmental Information Regulations 2004 applied because the maps were publicly available and easily accessible at the archive. The First-tier Tribunal upheld that decision in case EA/2022/0455, decided on 8 January 2024.

On appeal, the appellant challenged the meanings of publicly available and easily accessible, and contended that FOIA required disclosure. The central issue was whether on-screen inspection at the archive displaced the requested electronic form.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Its decision upholding the Information Commissioner’s Decision Notice therefore stood.

2. Regulation 6(1)(b) of the Environmental Information Regulations 2004 was engaged. In its natural and ordinary meaning, publicly available means available to the public. It is a binary question. Information available for inspection by any member of the public at an archive facility is publicly available, even though it could additionally be made available through another medium. The word already requires actual prior availability to the public in an alternative form, rather than theoretical availability on request.

3. The regulation did not require online publication or a means of access that enabled the requester conveniently to retain, manipulate, or re-use the maps. Easily accessible concerns the ability to get at the information. It concerns accessibility to the applicant, rather than to the applicant’s computer or other hardware. Travel distance and cost may be relevant on other facts, but were not live issues in this appeal.

4. The Tribunal followed the fact-sensitive approach in Surrey Searches Ltd and Others v Northumbrian Water Ltd and Others [2024] EWHC 1643 (Ch). That authority confirmed that physical attendance, registration, permission, a request by email, or viewing information in situ may be consistent with public availability. Ease of access must not be conflated with convenience or re-use.

5. The First-tier Tribunal was also entitled to find that the EIR and FOIA operate in parallel. Section 39 of the Freedom of Information Act 2000 is a qualified, rather than absolute, exemption, so environmental information may exceptionally be disclosable under FOIA. Nonetheless, the maps were reasonably accessible under section 21. The distinction between “easily” accessible under the EIR and “reasonably” accessible under FOIA was immaterial on these facts.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The First-tier Tribunal’s decision was held not to contain an error of law: [2024] UKUT 320 (AAC).
• First-tier Tribunal (General Regulatory Chamber): dismissed the appellant’s appeal from the Information Commissioner’s Decision Notice and upheld the application of regulation 6(1)(b): EA/2022/0455, 8 January 2024.
• Information Commissioner: Decision Notice IC-144241-S0K1, dated 30 November 2022, found the maps publicly available and easily accessible under regulation 6(1)(b) of the Environmental Information Regulations 2004.