Court of Appeal rules environmental information is 'held' at date of request, not internal review

In Information Commissioner and the Health and Safety Executive v O'Hanlon [2026] EWCA Civ 838, handed down on 1 July 2026, Lord Justice Holgate, with whom Lord Justice Lewison and Lord Justice Dove agreed, overturned a decision of the Upper Tribunal that would have required public authorities conducting a regulation 11 review to disclose information they acquired after receiving a request but before completing the review.

The case arose from a request made to the HSE on 27 April 2020 by Patricia O'Hanlon, who sought documents and correspondence relating to the regulator's inspection of a demolition site in Lydiate, Merseyside, where asbestos was present. The HSE refused the request under the Freedom of Information Act 2000 on 6 May 2020. O'Hanlon requested a review, which the HSE did not complete until 9 August 2021, when it disclosed some information but relied on exceptions under the EIR, including regulation 12(4)(a), to withhold the remainder.

The Commissioner largely upheld the HSE's position, and O'Hanlon appealed to the First-tier Tribunal. During those proceedings it emerged that the HSE held further information within the scope of the request, including two notification of contravention letters sent to a contractor, Amark Limited, dated 15 May 2020 and 26 August 2020 - after the request was received but before the internal review concluded.

The FTT found no further information was held, but on appeal Upper Tribunal Judge Citron, relying on a passage in the sixth edition of Coppel, Information Rights, and the Upper Tribunal's decision in Montague v Information Commissioner [2022] UKUT 104 (AAC), held that the relevant date for applying exceptions and the public interest balance was the date of the regulation 11 review decision. The Upper Tribunal remitted the matter to the FTT to conduct the public interest balancing exercise for the contravention letters as at 9 August 2021.

Regulation 5(1) of the EIR 2004 requires a public authority that holds environmental information to make it available on request, subject to the exceptions in regulation 12. Regulation 12(4)(a) permits refusal to the extent that the authority does not hold the information when the request is received, and regulation 11 requires an authority to reconsider its handling of a request on receipt of representations from the applicant. The Regulations transpose Directive 2003/4/EC and must be read compatibly with it.

Holgate LJ described the language of regulation 12(4)(a) as crystal clear, holding that both the exception and the public interest test under regulation 12(1) must be applied as at the date the authority received the request. The regulation 11 procedure, he found, is one of review rather than fresh determination, tied to the original request, and cannot be used to bring later-acquired information within the scope of the disclosure duty. Information received between the date of the request and the date of the review determination is irrelevant to that review, and the remedy for a requester in that position is to make a fresh request.

The court rejected the respondent's argument that the review mechanism imposed a continuing disclosure obligation, warning that such a reading would render regulation 12(4)(a) otiose and make the review process effectively open-ended, with requesters able to trigger successive reviews as circumstances changed. Holgate LJ noted that investigating authorities such as the HSE frequently continue to receive relevant material after a request is made, and that a continuing obligation would create additional complexities and burdens that could impede the efficient conduct of investigations.

The court confined its ruling to regulation 12(4)(a), declining to decide the relevant date for the other exceptions under regulations 12(4) and 12(5), though the judgment strongly suggests that regulation 11 cannot extend the relevant date in any event. The question of how the public interest test operates in a refusal based on regulation 12(4)(a) was also left for a case in which it arises.

Eric Metcalfe of Monckton Chambers, instructed by the Information Commissioner's Office, acted for the Commissioner. Tom Tabori, instructed by the Government Legal Department, acted for the HSE, and Peter Lockley of Leigh Day acted for O'Hanlon.