Lynn Wyeth takes a look at some recent FOI and Data Protection issues, and what they mean for practitioners.
FOI
It’s already online? Why section 21 FOIA and regulation 6 EIR are not the same thing
Public authorities often receive information requests where some or all of the information is already available online. Under the Freedom of Information Act 2000 (FOIA), there is a familiar answer: Section 21 – information accessible to the applicant by other means.
It can be tempting to think that regulation 6(1)(b) of the Environmental Information Regulations 2004 (EIR) does much the same job for environmental information.
A recent Information Tribunal decision has made clear that it does not.
Section 21 commonly applies where information is already published on a public authority’s website, although it can also cover information available through another statutory access regime or through an authority’s publication scheme.
Importantly, section 21 is an absolute exemption, so there is no public interest test.
However, an authority should not simply tell someone: “It’s on our website – go and find it.” The ICO says authorities should give sufficiently precise directions to enable the requester to locate the information without difficulty. They should also consider whether it is genuinely reasonably accessible to that particular applicant.
Unfortunately, there is no direct EIR equivalent of section 21 FOIA.
Regulation 6 is primarily about the form or format in which environmental information is provided. If an applicant asks for information in a particular form or format, the authority should normally provide it that way.
Regulation 6(1)(b) says it does not have to do so where the information is already publicly available and easily accessible to the applicant in another form or format.
That distinction has now been highlighted by the First-tier Tribunal in Paul Lewis v Information Commissioner [2026] UKFTT 1192 (GRC).
Mr Lewis asked Doncaster Council for environmental information concerning 5G masts, including numbers of planning applications and associated assessments and documentation.
The Council relied on regulation 6(1)(b), directing him to its online planning portal, explaining how he could search for relevant applications. The ICO agreed with the Council. Mr Lewis appealed – and the Tribunal allowed his appeal.
The crucial point was that Mr Lewis had not asked for the information in any particular form or format.
The Tribunal said regulation 6(1)(b) is not a general exception to the duty to provide environmental information. It only comes into play where the requester has first asked for the information in a particular form or format.
The Tribunal was particularly clear that both the Council and the ICO had wrongly treated regulation 6(1)(b) as though it were an EIR equivalent of section 21 FOIA. It isn’t.
Regulation 6(1)(b) is about whether an authority must comply with the requester’s preferred form or format. If no particular form or format has been requested, the Tribunal’s decision says regulation 6(1)(b) cannot be used.
DP
Section 44 FOIA: Just Because Some Information is Protected Doesn’t Mean It All Is
Let’s have another Section 44 case, shall we? And why is this coming under our data protection advice section this month? Well, yet again, we have a case where FOI and data protection legislation are intertwined.
A useful new Upper Tribunal decision, Woodhouse v Information Commissioner [2026] UKUT 313 (AAC), looks at section 44 of the Freedom of Information Act and the confidentiality provisions protecting information obtained by the Information Commissioner’s office (ICO). Mr Woodhouse asked the ICO for information about its dealings with Potto Parish Council (yes, a real place in North Yorkshire), including advice the ICO had given the Council and details of a meeting between them.
The ICO refused the requests under section 44 FOIA. It relied on Section 132 of the Data Protection Act 2018, which restricts the ICO from disclosing information obtained or provided to it while carrying out its regulatory functions. It says:
132 Confidentiality of information
(1) A person who is or has been the Commissioner, or a member of the Commissioner’s staff or an agent of the Commissioner, must not disclose information which—
(a) has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner’s functions,
(b) relates to an identified or identifiable individual or business, and
(c) is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources, unless the disclosure is made with lawful authority.
(2) For the purposes of subsection (1), a disclosure is made with lawful authority only if and to the extent that—
(a) the disclosure was made with the consent of the individual or of the person for the time being carrying on the business,
(b) the information was obtained or provided as described in subsection (1)(a) for the purpose of its being made available to the public (in whatever manner),
(c) the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions,
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) the disclosure was made for the purposes of criminal or civil proceedings, however arising, or
(f) having regard to the rights, freedoms and legitimate interests of any person, the disclosure was necessary in the public interest.
(3) It is an offence for a person knowingly or recklessly to disclose information in contravention of subsection (1).
The Upper Tribunal found problems with that approach.
Firstly, not everything within a document necessarily attracts the prohibition. Some of the withheld material included quotations from the ICO’s own published guidance. The Tribunal said proper consideration should have been given to whether parts of the information could be disclosed without revealing protected information.
Secondly, section 132 only protects relevant information where it is not publicly available and has not previously been publicly available.
This mattered because some of the ICO’s communications had apparently been discussed at public meetings of the Parish Council. The Upper Tribunal made an important point: information does not have to remain online or be recorded in published minutes to have previously been publicly available. If information was disclosed during a public council meeting, that may be enough. Nor does somebody necessarily have to have been sitting in the public gallery – the test is whether the information was available to the public.
The Tribunal also stressed that when withheld information is considered in a closed hearing, the Tribunal must carefully consider arguments that the requester cannot make themselves because they haven’t seen the information. The appeal was therefore allowed and the case sent back to a fresh First-tier Tribunal.
The practical lesson? Don’t apply section 44 with too broad a brush. Check precisely what the statutory prohibition covers, consider partial disclosure, and check carefully whether supposedly confidential information has already entered the public domain.
Full Decision:
https://assets.publishing.service.gov.uk/media/6a886218ed1b6e7849fd4a4a/UA-2025-001691-GIA.pdf
Don’t forget to check out all the s44 prohibitions that we have identified to date on our statutory bars blog: https://www.ecase.co.uk/under-the-microscope-statutory-bars/
