The Information Commissioner & Anor v Patricia O'Hanlon

Under the Environmental Information Regulations 2004, whether requested environmental information is held is determined when the public authority receives the request. Regulation 12(4)(a) permits refusal where the information was not then held, even if it is acquired later. A regulation 11 review examines compliance with the original request. It does not become a fresh request or extend the disclosure duty to subsequently acquired material. Where refusal relies on regulation 12(4)(a), the regulation 12(1) public-interest assessment is also made by reference to the request date. Later-acquired information requires a new request. The court left the substantive application of that public-interest balance to a case in which it arises.

Patricia O'Hanlon requested environmental information from the Health and Safety Executive concerning asbestos-related demolition work. The HSE disclosed some information and refused or denied holding other material. The Information Commissioner later issued a decision notice. The First-tier Tribunal concluded that the HSE held no further relevant information. The Upper Tribunal found that later-created contravention letters fell within the request and remitted the matter to the First-tier Tribunal for a public-interest assessment, applying the relevant provisions as at the HSE's regulation 11 decision on 9 August 2021. The Commissioner and the HSE appealed. The central issues were whether information acquired after the original request had to be considered on review and whether the regulation 12(1) balance was assessed at the review date or the request date.

Appeals allowed. Holgate LJ gave the judgment, with Dove LJ and Lewison LJ agreeing.

1. The court applied a purposive and contextual approach to statutory interpretation, drawing on R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28 and R (O) v Secretary of State for the Home Department [2022] UKSC 3. The EIR 2004 had to be construed compatibly with Directive 2003/4/EC. Authorities on the materially different FOIA regime did not assist materially.
2. The Directive and the EIR 2004 establish a right to information held by the public authority when the request is received. The strict time limits for responding, and the transfer mechanism where another authority holds the information, reinforce that construction. Regulation 12(4)(a) is directed to information not held at the date of receipt.
3. A regulation 11 review concerns compliance with the original request. It does not extend the regulation 5 duty to information acquired later, create a continuing disclosure obligation, or operate as a fresh determination. A later-acquired document may be sought by a fresh request. Treating the review date as decisive would make regulation 12(4)(a) ineffective and could make the review process open-ended.
4. Where the refusal is based on regulation 12(4)(a), the relevant date for determining whether the information is held is the date of receipt of the regulation 5 request. Regulation 12(1), including its public-interest requirement, is applied by reference to that date, not the date of the regulation 11 decision. The court did not decide the detailed substantive application of the public-interest balance in such a case.
5. The Upper Tribunal's contrary approach was therefore erroneous. The appeals were allowed.

• Court of Appeal (Civil Division): appeals by the Information Commissioner and the Health and Safety Executive allowed.
• Upper Tribunal (Administrative Appeals Chamber): found that the contravention letters fell within the request, treated them as held at the date of the regulation 11 decision, and remitted the issue to the First-tier Tribunal.
• First-tier Tribunal (General Regulatory Chamber): concluded that the HSE held no further environmental information, subject to information subsequently disclosed.
• Information Commissioner: issued a decision notice concerning the HSE's compliance with the EIR 2004.