Patricia O’Hanlon v Information Commissioner & Anor

An environmental-information request framed as a request for any documents or correspondence concerning a site is not confined to later itemised examples unless clear words impose that limit. A requester need not identify every document falling within the request.

An error about the request’s scope is immaterial only if the tribunal would have been bound, on untainted findings, to reach the same result. Under the Environmental Information Regulations 2004, information first held after receipt of a request may be withheld under regulation 12(4)(a) only where the public-interest balance required by regulation 12(1)(b) favours maintaining that exception. Where a regulation 11 reconsideration is made, that balance falls to be assessed when the reconsideration decision is made.

Patricia O’Hanlon v Information Commissioner & Anor was an appeal from the First-tier Tribunal (General Regulatory Chamber) concerning a request for environmental information held by the Health and Safety Executive about demolition works at a site.

The request opened by seeking any documents or correspondence relating to the site, then listed 11 documents or categories. The First-tier Tribunal held that no further information within the request’s scope was held or required to be disclosed. Permission to appeal was granted on whether that conclusion wrongly excluded emails, a prohibition notice and notifications of contravention served on an asbestos-removal company.

The central issue was whether the itemised material restricted the opening, wider request and, if not, whether the error affected the outcome for each disputed item.

1. The appeal was allowed in part. The First-tier Tribunal erred in treating the request as confined to the 11 itemised categories. Its opening words plainly requested any documents or correspondence held in relation to the site. The later examples did not restrict that meaning, particularly where the requester was unrepresented. Information requests concern information, not only documents already identified by the requester.

2. The First-tier Tribunal was entitled to determine whether the Information Commissioner’s decision notice correctly construed the request. Under sections 50 and 58 of the Freedom of Information Act 2000, correctly identifying the information requested is part of deciding whether the request was lawfully dealt with. The Commissioner’s own construction did not bind the tribunal.

3. The error was immaterial as to the two emails from the third-party surveyor. The First-tier Tribunal’s untainted reasoning and findings concerning regulation 12(5)(b) would have required it to find that disclosure adversely affected the Health and Safety Executive’s ability to conduct investigations, and that the public interest favoured maintaining the exception. It was also immaterial as to the prohibition notice, because it was publicly available and easily accessible in another format within regulation 6(1)(b).

4. The error was material as to the notifications of contravention served on Amark. Although the Health and Safety Executive did not hold them when the request was received, it held them before its August 2021 regulation 11 reconsideration. Regulation 12(4)(a) could permit refusal only if the public-interest balance in regulation 12(1)(b) favoured maintaining that exception. The First-tier Tribunal had not made that assessment and would not have been bound to resolve it against disclosure.

5. The decision was set aside only as to those notifications and remitted to a freshly constituted First-tier Tribunal for an oral hearing and a fresh determination under section 58 of the Freedom of Information Act 2000, read with regulation 18 of the Environmental Information Regulations 2004.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal in part, set aside the First-tier Tribunal decision only in relation to notifications of contravention served on Amark, and remitted that matter to a fresh First-tier Tribunal panel.
• First-tier Tribunal (General Regulatory Chamber) (Information Rights): On 3 February 2023, allowed the appeal in part but found that no further information within the scope of the request was held or required to be disclosed.