Paul Lewis v The Information Commissioner [2026] UKFTT 1192 (GRC)

[2026] UKFTT 01192 (GRC)Appeal Number FT/EA/2025/0076First-tier Tribunal (General Regulatory Chamber) Information RightsHearing Heard on CVP: 22 July 2026.Decision promulgated on: 21August 2026
Before
Brian Kennedy KC with Members Suzanne Cosgrave and Pieter de Waal
Between
Paul LewisAppellantTHE INFORMATION COMMISSIONERRespondentDecision: The appeal is allowed.Representations:- Paul Lewis as a litigant in Person. for AppellantFor re Commissioner: - Jenny Roe in written submissions by way of Response to the Grounds of Appeal.REASONSDate 2026-08-21

Introduction:

[1]This is an appeal brought by Paul Lewis (“the appellant”) against a Decision Notice (“DN”) issued by the Information Commissioner (“the Commissioner”) dated 27 January 2025 concerning a request for environmental information made by the appellant to Doncaster Metropolitan Borough Council ("the Council").[2]The appeal is brought pursuant to section 57 of the Freedom of Information Act 2000 as modified by regulation 18 of the Environmental Information Regulations 2004 ("the EIR").[3]The Commissioner concluded that the Council was entitled to rely upon regulation 6(1)(b) of the EIR on the basis that the requested information was publicly available and easily accessible to the appellant through the Council's online planning portal. The Commissionerconsequently determined that no furthersteps were required.[4]The appeal was heard by the Tribunal at an oral hearing. The appellant appeared in person. The Commissioner relied upon his DN and written submissions in his Response to the Grounds of Appeal. The Tribunal is grateful generally to the parties for their representations and to the appellant for his clear and focused submissions at the hearing.[5]For the reasons set out below, the Tribunal allows the appeal. The Tribunal concludes that regulation 6(1)(b) of the EIR does not apply to the appellant’s request. The Commissioner's DN is not in accordance with the law and is set aside, and a substituted decision is issued as set out below.

Background and chronology:

[6]Background and chronology: On 10 June 2024 the appellant submitted a request to the Council seeking information concerning 5G-enabled telecommunications masts within the Council area. The request first sought the number of 5G-enabled telephone masts within the Council area and then posed a number of further questions concerning planning applications and associated information.[7]The Council responded as follows on 26 June 2024 (our emphasis added):
‘Response: Regulation 6(1)(b) - Information which is Publicly Available Regulation 6(1)(b) of the EIR allows you to not provide information if it is already available to the applicant in another format. All information can be found on City of Doncaster Council’s Public Access site using the link below. There is a user guide explaining how to use the search facility and how to view the documents on the home page of Public Access should you need it: https://www.doncaster.gov.uk/services/pl...’
[8]Also, on 26 June 2024 the appellant communicated to the Council that the answers to the information request were not available at the link given by the Council.[9]On 4 July 2024 the Council replied that ‘if you search on the word '5G' it will bring up the applications where you can find the information you require by viewing the documents on the Associated Document tab.’[10]On 22 August 2024 the appellant requested an internal review of the Council’s handling of his request. The Council responded on 10 September 2024, maintaining its reliance on regulation 6(1)(b) of the EIR and giving examples of planning applications (with reference numbers) relating to 5G masts. It advised that the examples given by it are ‘typical of the types of documents that are provided when submitting a Telecommunications planning application’ and advised the appellant to view the documentation provided in the ‘Associated Documents section’ of the relevant planning applications on the Council’s Public Access site. For one part of the request concerning the monitoring of radiation levels of installed masts, the Council stated that it did not hold the requested information.[11]The appellant complained to the Commissioner, maintaining that the Council had failed to provide the information requested.[12]The Commissioner investigated the complaint. On 27 January 2025 he issued the DN concluding that the requested information is publicly available and easily accessible to the appellant, and that regulation 6(1)(b) therefore applies to the request. The Commissioner did not require any further steps.[13]The appellant subsequently appealed against the DN to this Tribunal.

Issues:

[14]Issues: It is not in issue between the parties that the appellant's request is a request for environmental information within the meaning of the EIR and that the request falls to be considered under that statutory regime.[15]The principal issue in dispute concerns the Commissioner's conclusion that the Council was entitled to rely upon regulation 6(1)(b) EIR when responding to the appellant’s request.[16]More specifically, the Tribunal is required to determine:(a) whether the appellant requested that the information be provided in a particular form or format for the purposes of regulation 6(1)(b) of the EIR;(b) if not, whether regulation 6(1)(b) applies to a request in circumstances where the ‘applicant’ (i.e. the appellant) did not request that the information be made available in a particular form or format;(c) whether the Commissioner correctly concluded that ‘the information is publicly available and easily accessible to the complainant, and therefore regulation 6(1)(b) applies to the request.’[17]Although the parties' submissions touched upon questions concerning the extent of the information held by the Council and the adequacy of the material available through the planning portal, the Tribunal's primary task is to determine the proper scope and application of regulation 6(1)(b) of the EIR and whether the Commissioner was correct in concluding that it applies to the appellant’s request.

Legal framework:

[18]Legal framework: Regulation 5(1) of the EIR places a duty on a public authority who holds environmental information to make that information available on request.[19]Regulation 6 (headed ‘Form and format of information’) concerns the qualified duty of a public authority to make information available in a particular form or format requested by the ‘applicant’ (i.e. the person making the request).[20]Regulation 6(1) provides that where an applicant requests information in a particular form or format, the public authority shall make it available in that form or format unless:(a) it is reasonable for it to make the information available in another form or format; or(b) the information is already publicly available and easily accessible to the applicant in another form or format.[21]The Tribunal's jurisdiction on appeal is governed by section 58 of the Freedom of Information Act. If on an appeal the Tribunal considers(a) that a DN is not in accordance with the law or(b) to the extent that a DN involved an exercise of discretion by the Commissioner he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner. In any other case the Tribunal shall dismiss the appeal.[22]It is important to identify the limits of the Tribunal's jurisdiction. This appeal is not concerned with the merits of the appellant's views regarding telecommunications infrastructure, planning policy, public health, or the deployment of 5G technology. Nor is it the Tribunal's function in these proceedings to determine whether the underlying concerns expressed by the appellant are well-founded. Those matters do not arise for determination in this appeal.[23]Equally, the Tribunal is not required in this appeal to determine whether the Council in fact holds all, some, or none of the information requested. As stated above, the issue before us is whether the Commissioner was correct to conclude in the DN that regulation 6(1)(b) of the EIR applies to the appellant's request.[24]In undertaking that task, the Tribunal may make its own findings of fact and reach its own conclusions on the evidence before it.

Discussion:

[25]Discussion: The Tribunal has carefully considered the open bundle prepared by the parties including the DN; correspondence between the appellant and the Council; correspondence between the Council and the Commissioner; and the Commissioner’s written Response to the Grounds of Appeal. The Tribunal has also considered the appellant’s oral submissions made at the hearing.[26]We begin by identifying the nature and scope of the appellant’s request. The request sought information concerning 5G-enabled telecommunications masts within the Council’s area.[27]The request first asked how many such masts were located within the Council area and then sought numerical information in six further categories concerning planning applications, environmental impact assessments, exclusion zone maps, health impact assessments, certificates of compliance, and post-installation radiation monitoring.[28]The request did not specify any particular form or format in which the information was to be made available. During the hearing the Tribunal explored with the appellant the reference in his Grounds of Appeal to the information not being made available in a “concise format”. We were satisfied from his answers that this did not reflect any contention that he had requested information in any particular form or format. Rather, he was expressing his complaint that the Council’s response did not make available the information that he had requested. We accept that clarification. It is also consistent with the request itself, which does not include any request from the appellant that the information be made available in a particular form or format.[29]Regulation 6(1)(b) of the EIR does not provide a general exception to or exemption from the duty of a public authority to make environmental information available. Regulation 6(1)(b) is concerned with circumstances where an applicant has requested that information be made available in a particular form or format. Where those circumstances apply, a public authority is required to make the information available in the requested form or format unless the information is already publicly available and easily accessible to the applicant in another form or format. That is the limited scope of a legitimate application of the provision.[30]This is clear from the ordinary meaning of the opening words in regulation 6(1):
‘Where an applicant requests that the information be made available in a particular form or format,…’
[31]It is also consistent with Commissioner’s published guidance on the application of regulation 6:
‘Regulation 6 aims to enable requesters to receive environmental information in their preferred form or format, subject to certain conditions. If they ask for the information in a particular form or format, you must provide it in that way unless one of two conditions applies... The second potential reason for not making the information available in the requester’s preferred form or format is that it is already publicly available and accessible to the requester in another form or format. You cannot rely on this provision if you are only directing the requester to something similar to the requested information or a part of it or a summary of it, rather than all of it. You must also be able to direct the requester to where the information is available.’
[32]We accept that on the evidence the appellant did not ask for the requested information to be made available in a particular form or format. We also accept that the Council did not make the requested information available.[33]The difficulty with the approach of the Council and the Commissioner in this case is that, in the absence of a request for the information be made available in any particular form or format, there is no premise upon which regulation 6(1)(b) may be applied to direct the appellant to planning records held on a Public Access site and to a user guide explaining how to use the search facility for viewing documents. We consider this to be a misdirection and a misapplication of regulation 6(1)(b) in circumstances where the precondition for reliance on regulation 6(1)(b) has not been met.[34]In our judgment both the Council and the Commissioner incorrectly approached regulation 6(1)(b) as if it provides a general exception equivalent to the exemption in section 21 of the Freedom of Information Act, which exempts a public authority from the duty to make information available if it is reasonably accessible to the applicant by other means. That is not what regulation 6(1)(b) provides. Similar (but not identical) to section 11 of the Freedom of Information Act, regulation 6(1)(b) does not provide an exception to or exemption from the duty to make information available, but permits a public authority to refuse to make information available in circumstances where(1) the information has been requested by the applicant in a particular form or formatand(2) the information is already publicly available and easily accessible to the applicant in another form or format.

Conclusion:

Conclusion

[35]In circumstances where the appellant did not request that the information be made available in any particular form or format (and in any event the requested information is not already publicly available and easily accessible to the applicant in another form or format), regulation 6(1)(b) is not engaged and does not apply to the request.[36]Accordingly, we conclude that the Commissioner was wrong to decide that regulation 6(1)(b) applies to the appellant’s request, and that the Commissioner's DN is not in accordance with the law.[37]We allow the appeal and issue a substituted decision as set out below.[38]Nothing in this decision should be taken as determining whether the Council does or does not hold the information requested by the appellant, or whether any exception under regulation 12 may apply to any of the information requested.

Substituted decision:

[39]Substituted decision: Pursuant to section 58 of the Freedom of Information Act 2000 as applied by regulation 18 of the Environmental Information Regulations 2004, the Tribunal substitutes the following decision:(1) The Council was not entitled to rely upon regulation 6(1)(b) of the Environmental Information Regulations 2004 in response to the appellant's request dated 10 June 2024.(2) Within 35 days from the date of this decision the Council must reconsider and respond to the appellant’s information request in compliance with the Council’s duty under regulation 5 of the Environmental Information Regulations 2004 to make available environmental information or refuse to disclose the requested information in compliance with the requirements of regulation 14.(3) For purposes of (2) above, the Council’s reconsideration of and response to the appellant’s information request must include not only the six items of information listed in the request, but also the information requested in the opening sentence of the request. Brian Kennedy KC 11 August 2026.