When is environmental information ‘held’?

In Information Commissioner and the Health and Safety Executive v O’Hanlon [2026] EWCA Civ 838, the Court of Appeal unanimously allowed the Information Commissioner’s appeal against a decision of the Upper Tribunal, holding that the correct date for determining the application of the exception under reg 12(4)(a) of the Environmental Information Regulations and the balance of the public interest under reg 12(1) was the date on which the public authority received the request, rather than the date of any review decision under reg 11(3).

In this case, the requester, Mrs O’Hanlon had asked the public authority, the Health and Safety Executive, in April 2020 for information about its inspection of a demolition site in Merseyside. On 6 May 2020, the HSE refused to disclose the information under FOIA, following which Mrs O’Hanlon asked it to review its decision. The HSE, however, did not complete its review until August 2021, at which time it relied primarily on reg 12(4)(a) EIR, i.e. that it did not hold some of the requested information at the time of the request.

The Commissioner upheld HSE’s decision and Mrs O’Hanlon appealed to the First-tier Tribunal. In the course of that hearing, it came to light that HSE had received further information within the scope of her request following its original refusal in May 2020 but prior to its internal review decision in August 2021. The FTT, however, concluded that the further information in question was not held.

On appeal, however, Upper Tribunal Judge Citron held, relying on a passage in the 6^th edition of Coppell, Information Rights and the Upper Tribunal’s earlier decision in Montague v Information Commissioner [2022] UKUT 104 (AAC); [2023] 1 WLR 1565, that the correct date for determining the application of any exceptions and the balance of the public interest was the date on which the public authority completed its internal review under reg 11(3) EIR. The Commissioner was granted permission to appeal the Upper Tribunal’s decision.

In a unanimous judgment, the Court of Appeal allowed the Commissioner’s appeal on all grounds, holding that, as a matter of statutory construction and construed in light of Directive 2003/4/EC which the EIR transposed, the application of reg 12(4)(a) EIR and the balance of any public interest under reg 12(1) had to be determined expressly by reference to the date on which the public authority receives the original request, rather than any subsequent review decision under reg 11. The Court declined to rule on the relevant date in relation to the other exceptions under reg 12(4) and (5) but the judgment strongly suggests reg 11 cannot be used to extend the relevant date in any event.

Eric Metcalfe is a Barrister at Monckton Chambers. He acted for the Information Commissioner as First Appellant.