Background
Patricia O’Hanlon requested environmental information from the Health and Safety Executive regarding demolition work at a site in Lydiate, Merseyside where asbestos was present. Her request, made on 27 April 2020, sought inspection reports, complaints records, and various regulatory documents. The HSE initially refused the request citing exemptions. Following a review procedure under regulation 11 of the Environmental Information Regulations 2004 (EIR 2004), the HSE disclosed some information but withheld other materials. O’Hanlon complained to the Information Commissioner, leading to a decision that the HSE had breached its disclosure obligations in certain respects.
The central issue concerned “notification of contravention” letters dated 15 May 2020 and 26 August 2020—documents that came into the HSE’s possession after O’Hanlon’s request was received. The Upper Tribunal held that these documents, though created after the request date, were “held” by the HSE when it issued its review decision on 9 August 2021, and therefore must be disclosed unless the public interest test favoured non-disclosure. Both the Information Commissioner and the HSE appealed this interpretation.
The Court’s Holding
The Court of Appeal allowed the appeals and clarified that regulation 12(4)(a) of the EIR 2004—which permits an authority to refuse disclosure of information it does not hold when the request is received—must be applied as of the date the request was received, not the date of a subsequent review decision. The court held that information acquired by a public authority after the applicant’s request was made does not fall within this exception and therefore cannot be withheld under regulation 12(4)(a) simply because it was not held at the time of the request.
Lord Justice Holgate, delivering the judgment, emphasized that the statutory language and scheme of the EIR 2004 compel this interpretation. The Directive 2003/4/EC, which the EIR 2004 transpose, establishes the request date as the reference point for determining what information an authority must disclose. While regulation 11 permits review of an authority’s decision, such a review does not retrospectively alter what was “held” on the request date. The court rejected the notion that the review procedure changes the temporal reference point for assessing the holding requirement.
Key Takeaways
- Environmental information holdings under the EIR 2004 are determined as of the date the request is received for purposes of regulation 12(4)(a).
- Information acquired after the request date cannot be refused under the “not held” exception, even if it relates to the subject matter of the request.
- The regulation 11 review procedure does not alter the date for determining whether an authority “holds” information.
- Applicants who believe information has been acquired after their request may pursue a fresh request or other remedies, but the review procedure does not extend the original request to cover newly acquired documents.
- The public interest test in regulation 12(1)(b) applies to other exceptions to disclosure but does not apply to the regulation 12(4)(a) exception where information was not held at the request date.
Why It Matters
This decision resolves an important ambiguity in how public authorities apply the Environmental Information Regulations 2004. It provides clarity that the temporal scope of disclosure obligations is fixed at the request date and prevents authorities from using subsequent acquisitions of documents as a basis for withholding information under the “not held” exception. This protects applicants’ access rights and ensures that authorities cannot evade their disclosure obligations by claiming that newly discovered or generated environmental information was not held when the request was made.
The judgment has broader implications for freedom of information law in the United Kingdom. It confirms that the statutory structure of the EIR 2004 ties disclosure obligations to a defined moment in time and that the review procedure, while important for reconsidering discretionary decisions, does not fundamentally alter the mechanics of the holding requirement. Public authorities must therefore conduct thorough searches as of the request date; information located thereafter falls outside this particular exception and must be addressed through other legal channels or a fresh request.