The Information Commissioner & Anor v Patricia O'Hanlon

The Environmental Information Regulations 2004 (SI 2004 No. 3391) (“the EIR 2004”) impose a duty on a public authority to make “environmental information” (“EI”) which it holds available to any person on request (reg.5(1)). A public authority must apply a presumption in favour of disclosure (reg.12(2)). But under reg.12(1) a public authority may refuse to disclose the requested EI if, in all the circumstances of the case, an exception to disclosure under reg.12(4) or (5) applies and the public interest in maintaining that exception outweighs the public interest in disclosing the EI.

This case is concerned with the ground of refusal in reg.12(4)(a), namely that the public authority did not hold the EI requested at the date when the relevant request was received.

If an “applicant” who has requested EI considers that the authority has failed to comply with a requirement of the EIR in relation to his or her request, they may make representations to the authority under reg.11. The authority must then consider those representations and decide whether it has complied with that requirement. If the authority decides that it has not, it must also decide what action to take in order to comply with the EIR.

Thie appeal raises two issues relating to a public authority’s review under reg.11 of a refusal under reg.12(4)(a) of a request to disclose EI:

The enforcement and appeal provisions in Parts IV and V of the Freedom of Information Act 2000 (“FOIA 2000”) apply to the EIR 2004 with modifications (reg.18). A person (“the complainant”) may apply to the Information Commissioner (“the Commissioner”), the first appellant, under s.50(1) of FOIA 2000 to decide whether a request for information he or she made to a public authority has been dealt with in accordance with the requirements of inter alia reg.11 of the EIR. If the Commissioner decides that a public authority has failed to communicate information in accordance with reg.5(1) or has failed to comply with reg.11 of the EIR, he must serve a decision notice specifying the steps which the authority must take to comply with that requirement (s.50(3) and (4)).

Under s.57 of FOIA 2000 the complainant or the public authority may appeal to the Tribunal against the Commissioner’s decision notice.

On 27 April 2020 the respondent, Mrs Patricia O’Hanlon, made a request to the second appellant, the Health and Safety Executive, (“the HSE”) to provide EI in relation to demolition work being carried out on a site in Saville Road, Lydiate, Merseyside where asbestos was present. The request was in the following terms:

“I am asking that any documents or correspondence held by the HSE in relation to this site be released to me under the Freedom of Information Act. I believe the information requested to be in the public domain and the public interest and can see no reason why it should not be supplied.

I know from correspondence with HSE that HSE Inspectors visited the site on 31st January 8th, 10th and 20th February. [1] I am requesting copies of their reports and any other reports relating to HSE Inspectors’ visits at this site.

[2] I understand from correspondence with HSE that complaints from members of the public, councillors and the MP were received between 30th January and 7th February 2020 and I am requesting copies of these complaints.

I am also requesting copies of:-

[3] The pre-demolition asbestos survey report

[4] The asbestos method statement

[5] Consignment notes for waste and hazardous waste removed from the site

[6] Construction Phase Plan

[7] F10 Notification

[8] Notification of Contravention

[9] Improvement Notice

[10] Action Plan

and [11] and correspondence between HSE, the MP, [Redacted] Council Officers and the developers of this site.”

On 6 May 2020 the HSE responded under FOIA 2000 stating that it held information within the scope of the respondent’s request, but it was exempt from disclosure.

The respondent requested a review of the HSE’s decision. On 9 August 2021 the HSE notified the respondent of the outcome of that review. It said that it did not hold some of the information requested. In relation to the information it did hold, the HSE disclosed some, but refused to disclose the remainder relying on exceptions in reg.12.

On 22 August 2021 the respondent complained to the Commissioner about that decision.

On 28 September 2021 the Commissioner issued his determination. He held that the HSE had breached its obligation to disclose in relation to certain EI under part 1 of the respondent’s request and required it to comply with that requirement. He said that in relation to parts 2 and 11 of the request, the HSE did hold some further EI, but had been entitled to refuse to disclose that material under the EIR 2004. The Commissioner also decided that the HSE did not hold any other EI requested under parts 2, 5, 7 and 11.

On 24 October 2021 the respondent appealed to the First-tier Tribunal (General Regulatory Chamber) (“the FTT”) against the Commissioner’s decision. At the hearing on 21 April 2022 the HSE stated that as a result of a further search it had identified further EI falling within the scope of parts 1, 2 and 11 of the respondent’s request in relation to which exceptions from disclosure applied. The HSE said that it did not hold any further EI.

The FTT concluded at [FTT 65] that the HSE held additional information within the scope of the respondent’s request which had not been disclosed at the time of the Commissioner’s decision, but which had subsequently been disclosed. The FTT accepted that the HSE did not hold any further EI.

The FTT added that if further information was sought by the respondent which might be held by the HSE, then in furtherance of the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the parties should seek to resolve the matter by a consent order, so as to help save the FTT’s finite resources [FTT 67].

The respondent appealed against that decision to the Upper Tribunal (Administrative Appeals Chamber) (“the UT”). The respondent was concerned that asbestos had been removed from the site by a contractor, Amark Limited, whom she believed did not have a statutory licence to carry out that work. The FTT had before it a witness statement from Ms Jane Cloherty, the HSE’s disclosure manager dealing with the case. The appeal to the UT related solely to EI the existence of which had been revealed by that statement, namely (1) emails between Amark Limited and the HSE; (2) a prohibition notice served on the developer of the site on 6 April 2020 and (3) “notification of contravention” letters sent by the HSE to Amark Limited [UT 19]. The first time the respondent explicitly sought disclosure of those materials was in her closing submissions to the FTT.

The UT found that those materials fell within the scope of the respondent’s request for EI and therefore the FTT had erred in finding that the HSE held no further EI ([UT 25]-[UT 27]). The UT then concluded that that error was immaterial in relation to items (1) and (2) (see [UT 27]-[UT 37]) but was material in relation to item (3), the contravention letters ([UT 38]-[UT 48]).

The contravention letters were dated 15 May 2020 and 26 August 2020 and therefore did not exist until after the respondent’s request for EI was received by the HSE on 27 April 2020. However, the Tribunal decided that they were “held” by the HSE when it issued its decision under reg.11 of the EIR 2004 on 9 August 2021. In summary, the UT judge concluded that:

The UT said that because it was in no position to say what the outcome of that balancing exercise would have been, the appeal to the FTT was remitted to that Tribunal. That redetermination is to relate solely to the HSE’s contravention letters to Amark Limited, applying reg.12(1) and 12(4)(a) as at 9 August 2021, the date of HSE’s decision under reg.11.

Both the Commissioner and the HSE appeal against the order of the UT with the permission of Nugee LJ. The Commissioner advances two grounds of appeal:

However, in his oral submissions, the Commissioner limited ground 1 to the HSE’s ground for refusing to disclose EI in this case, namely reg.12(4)(a). He contends that both reg.12(4)(a) and the public interest test in reg.12(1)(b) are to be applied as at the date when the request was received because of the explicit language of reg.12(4)(a). But the relevant date for considering other grounds of refusal in reg.12(4) and (5) (and the public interest test in those cases) is the date of the authority’s decision refusing to disclose the EI requested, relying upon R (Evans) v Attorney General [2015] UKSC 21; [2015] AC 1787 (at [72]-[73]) and Montague v Information Commissioner [2022] UKUT 104 (AAC); [2023] 1 WLR 1565 at [63] and [86], both decisions on FOIA 2000. I will restrict my analysis of the timing issue to cases where reg.12(4)(a) is engaged.

It appears that the respondent was only able to obtain legal representation in the last few weeks. After he was instructed, Mr Peter Lockley prepared a skeleton argument which effectively replaced the skeleton previously filed by the respondent. As a result, the respondent accepts that the UT’s conclusion (1) in [17] above cannot be supported. It is inconsistent with the legislation, in particular reg.12(4)(a) of the EIR 2004.

Instead, the respondent now advances the following main points:

Accordingly, the appeal turns purely on issues of statutory construction and, in particular, the effect of reg.11 in the statutory scheme.

The respondent accepts that if the court rejects her interpretation of the legislation then the litigation arising from her request dated 27 April 2020 to the HSE for EI and the review under reg.11 will be at an end. But in that event she remains able to make a fresh request to the HSE for the disclosure of the contravention notices (para.6 of skeleton).

The EIR 2004 were made under para.2(2) of sched.2 to the European Communities Act 1972 in order to transpose Directive 2003/4/EC (“the Directive”). It is common ground that the EIR 2004 should be read compatibly with the Directive.

Recital (5) explains that the Directive was adopted so as to give effect to the provisions of the Aarhus Convention on access by the public to EI (see Arts.4, 5 and 9(1)). Those provisions are effectively incorporated into the Directive.

The following recitals are relevant:

“(8)

It is necessary to ensure that any natural and legal person has a right of access to environmental information held by or for public authorities without his having to state an interest.

…

(12)

Environmental information which is physically held by other bodies on behalf of public authorities should also fall within the scope of this Directive.

(13)

Environmental information should be made available to applicants as soon as possible and within a reasonable time and having regard to any timescale specified by the applicant.

…

(16)

The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for a refusal should be provided to the applicant within the time limit laid down in this Directive.”

By Art.1 the objectives of the directive include:

“(a)

to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and

(b)

…”

Article 2(1) defines EI in broad terms (see [64] below). Article 2(3) and (4) define information held by or for a public authority:

“3.

‘Information held by a public authority’ shall mean environmental information in its possession which has been produced or received by that authority.

4.

‘Information held for a public authority’ shall mean environmental information which is physically held by a natural or legal person on behalf of a public authority.”

An “applicant” refers to “any natural or legal person requesting environmental information” (Art.2(5)).

Article 3 is entitled “Access to Environmental Information upon request” and provides:

“1.

Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.

2.

Subject to Article 4 and having regard to any timescale specified by the applicant, environmental information shall be made available to an applicant:

(a)

as soon as possible or, at the latest, within one month after the receipt by the public authority referred to in paragraph 1 of the applicant’s request; or

(b)

within two months after the receipt of the request by the public authority if the volume and the complexity of the information is such that the one-month period referred to in (a) cannot be complied with. In such cases, the applicant shall be informed as soon as possible, and in any case before the end of that one-month period, of any such extension and of the reasons for it.

3.

If a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within the timeframe laid down in paragraph 2(a), ask the applicant to specify the request and shall assist the applicant in doing so, e.g. by providing information on the use of the public registers referred to in paragraph 5(c). The public authorities may, where they deem it appropriate, refuse the request under Article 4(1)(c).

…”

Article 4 provides for “exceptions” to the obligation to disclose. Article 4(1) allows a Member State to provide for the refusal of a request for EI in given circumstances. Article 4(2) allows a Member State to provide for a request for EI to be refused if disclosure would adversely affect one or more of the matters listed, such as the course of justice and certain types of confidentiality. Article 4 then qualifies the grounds upon which a request for EI may be refused by a public interest test:

“The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal…”

The ground for refusal in Art.4(1)(a) is relevant to the issues in this appeal:

“(a)

the information requested is not held by or for the public authority to which the request is addressed. In such a case, where that public authority is aware that the information is held by or for another public authority, it shall, as soon as possible, transfer the request to that other authority and inform the applicant accordingly or inform the applicant of the public authority to which it believes it is possible to apply for the information requested;”

A refusal to make available all or part of the “information requested” must be notified to the applicant within the relevant time limit in Art.3(2), together with the reasons for refusal and information on the review procedure provided under Art.6.

Article 6 is entitled “Access to justice”. Article 6(1) provides:

“1.

Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive.”

Article 6(2) describes each of the procedures provided under Art.6(1), including “reconsideration”, as a “review procedure” and then goes on to provide for judicial review, as opposed to administrative review:

“2.

In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.”

Regulation 2 is an interpretation provision. Subject to that regulation, expressions which appear in both the EIR 2004 and the Directive have the same meaning in the Regulations as in the Directive. “Applicant” is specifically defined “in relation to a request for environmental information” as “the person who made the request”.

Regulation 3(2) defines when EI is “held” by a public authority:

“(2)

For the purposes of these Regulations, environmental information is held by a public authority if the information-

(a)

is in the authority’s possession and has been produced or received by the authority; or

(b)

is held by another person on behalf of the authority.”

Regulation 5 contains the “duty to make available environmental information on request”:

“(1)

Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.

(2)

Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request.

(3)

To the extent that the information requested includes personal data of which the applicant is the data subject, paragraph (1) shall not apply to those personal data.

(4)

For the purposes of paragraph (1), where the information made available is compiled by or on behalf of the public authority it shall be up to date, accurate and comparable, so far as the public authority reasonably believes.

…” (emphasis added)

Regulation 6(1) requires the authority to make information available in the form or format requested by an applicant unless another form or format would be reasonable, or is publicly available and accessible. By reg.6(2) where information is not made available in the form or format requested, the authority must give reasons for its decision and inform the applicant of the review and appeal procedures available under regs.11 and 18.

A public authority is required to provide EI in response to a request, or to issue a refusal of a request under reg.12 or to provide reasons for supplying information in a different form or format, “as soon as possible” and in any event no later than 20 working days after receiving the request (see regs.5(2), 6(2) and 14(2)). Regulation 7 allows the authority to extend that 20-day time limit to 40 working days if it considers it impracticable to comply with or to refuse the request within the shorter period because of the complexity and volume of the information requested.

Regulation 10 deals with situations where a public authority does not hold the information requested but believes that another does:

“(1)

Where a public authority that receives a request for environmental information does not hold the information requested but believes that another public authority or a Scottish public authority holds the information, the public authority shall either-

(a)

transfer the request to the other public authority or Scottish public authority; or

(b)

supply the applicant with the name and address of that authority,

and inform the applicant accordingly with the refusal sent under regulation 14(1).

…”

Regulation 11 provides:

“(1)

Subject to paragraph (2), an applicant may make representations to a public authority in relation to the applicant's request for environmental information if it appears to the applicant that the authority has failed to comply with a requirement of these Regulations in relation to the request.

(2)

Representations under paragraph (1) shall be made in writing to the public authority no later than 40 working days after the date on which the applicant believes that the public authority has failed to comply with the requirement.

(3)

The public authority shall on receipt of the representations and free of charge-

(a)

consider them and any supporting evidence produced by the applicant; and

(b)

decide if it has complied with the requirement.

(4)

A public authority shall notify the applicant of its decision under paragraph (3) as soon as possible and no later than 40 working days after the date of receipt of the representations.

(5)

Where the public authority decides that it has failed to comply with these Regulations in relation to the request, the notification under paragraph (4) shall include a statement of-

(a)

the failure to comply;

(b)

the action the authority has decided to take to comply with the requirement; and

(c)

the period within which that action is to be taken.”

Regulation 12 sets out “exceptions to the duty to disclose environmental information”. So far as is material to this appeal it provides:

“(1)

Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if-

(a)

an exception to disclosure applies under paragraphs (4) or (5); and

(b)

in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

(2)

A public authority shall apply a presumption in favour of disclosure.

(3)

To the extent that the information requested includes personal data of which the applicant is not the data subject, the personal data shall not be disclosed otherwise than in accordance with regulation 13.

(4)

For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that-

(a)

it does not hold that information when an applicant's request is received;

(b)

the request for information is manifestly unreasonable;

(c)

the request for information is formulated in too general a manner and the public authority has complied with regulation 9;

(d)

the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or

…”

Regulation 14 deals with the refusal of a request for environmental information under reg.12 or under reg.13 (relating to personal data):

“(1)

If a request for environmental information is refused by a public authority under regulations 12(1) or 13(1), the refusal shall be made in writing and comply with the following provisions of this regulation.

(2)

The refusal shall be made as soon as possible and no later than 20 working days after the date of receipt of the request.

(3)

The refusal shall specify the reasons not to disclose the information requested, including-

(a)

any exception relied on under regulations 12(4), 12(5) or 13; and

(b)

the matters the public authority considered in reaching its decision with respect to the public interest under regulation 12(1)(b) or, where these apply, [regulation 13(1)(b) or (5A)].

…”

The refusal must inform the applicant of the review and appeal procedures available under regs.11 and 18 (reg.14(5)).

Regulation 18 applies Parts IV and V of FOIA 2000 to the EIR 2004 with modifications. For example, by reg.18(4) references in FOIA 2000 to that Act or Part 1 of that Act are treated as referring respectively to the EIR 2004 or Parts 2 and 3 of those Regulations (which include regs.5, 11, 12 and 14). Thus, s.50 of FOIA 2000 deals with complaints to the Commissioner about whether a request to a public authority has been dealt with in accordance with Parts 2 and 3 of the EIR 2004. In its unmodified form s.50 provides:

“(1)

Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

(2)

On receiving an application under this section, the Commissioner shall make a decision unless it appears to him—

(a)

that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45,

(b)

that there has been undue delay in making the application,

(c)

that the application is frivolous or vexatious, or

(d)

that the application has been withdrawn or abandoned.

(3)

Where the Commissioner has received an application under this section, he shall either—

(a)

notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or

(b)

serve notice of his decision (in this Act referred to as a “decision notice”) on the complainant and the public authority.

(4)

Where the Commissioner decides that a public authority—

(a)

has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b)

has failed to comply with any of the requirements of sections 11 and 17,

the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.

…”

The Commissioner is not obliged to deal with a complaint if the complainant has not exhausted any complaints procedure provided by the public authority, including the procedure under reg.11 (s.50(2) and reg.18(4)(c)). Where the Commissioner decides that a public authority has failed to provide EI where it is required to do so by reg.5(1) of the EIR 2004, or has failed to comply with any requirement of regs. 6, 11 or 14, he must serve a decision notice specifying the steps the authority must take to be compliant (s.50(3) and (4) and reg.18(4)(d)).

By section 57(1) of FOIA 2000 the complainant or the public authority may appeal to the Tribunal (generally the FTT) against a decision notice issued by the Commissioner under s.50. Section 58 provides:

“(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may review any finding on fact on which the notice in question was based.”

An appeal may be brought against a decision of the FTT to the UT but only on a point of law (s.11 of the Tribunals, Courts and Enforcement Act 2007).

A purposive approach should be adopted for the interpretation of legislation. As Lord Bingham said in R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687 at [8]:

“The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”

“The purpose and scheme of an Act of Parliament provide the basic frame of orientation for the use of the language employed in it” (R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28; [2023] 1 WLR 2594 per Lord Sales JSC at [41]).

In R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255 Lord Hodge DPSC said at [29]:

“Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained.…”

(see also PACCAR at [42]).

In R (Edison) v Central Valuation Officer [2003] UKHL 20; [2003] 4 All ER 209 Lord Millett addressed the interpretative presumption that Parliament intended to act reasonably when passing legislation:

“[116] … The court will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.

[117] But the strength of these presumptions depends on the degree to which a particular construction produces and unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it…”

(see also For Women Scotland Limited v Scottish Ministers [2025] UKSC 16; [2026] AC 315 at [160]).

The EIR 2004 were the subject of the affirmative resolution procedure in Parliament. However, counsel did not suggest that there is any material in Hansard which would be admissible in accordance with Pepper v Hart [1993] AC 593 to assist in the construction of the legislation.

In [15] above I noted that the appeal to the UT succeeded solely in relation to the notifications of contravention relating to Amark Limited. Those documents did not fall within the 11 descriptions of information contained in the respondent’s request for EI dated 27 April 2020 (see [7] above). But the UT decided at [UT25]-[UT26] that the documents fell within the very general language used at the beginning of the request: “any documents or correspondence held by the HSE in relation to this site”. Although the appeal to the FTT lay against the decision notice of the Commissioner, he was not asked to consider the contravention notifications and so did not address them. The first time this point was raised was in the respondent’s closing submissions to the FTT. No issue has been raised before us about whether this matter was properly before the FTT or the UT and so I will assume, without deciding, that it was. Similarly, no issue has been raised before us about whether the UT’s approach wrongly affected the HSE’s ability to rely upon reg.12(4)(c) of the EIR 2004.

Regulation 12(4)(a) allows a public authority to refuse to disclose information which it does not hold when an applicant’s request is received. But the UT noted at [UT 42] that this is subject to the public interest test in reg.12(1)(b). In this respect the UT appears to have had in mind the contrast between the EIR 2004 and s.1(4) of FOIA 2000 which straightforwardly states that the information to which an applicant is entitled is that held by the public authority “at the time when the request is received”, without any public interest qualification.

The UT relied upon a passage in Coppel: Information Rights (6^th ed.) at para. 20-011 on the interpretation and application of reg.12(4)(a) as the basis for its reasoning in [UT 42] to [UT 44]:

“42.

Whilst HSE, in its response to this appeal and skeleton argument, referred to regulation 12(4)(a) (which says that, for purposes of regulation 12(1)(a), a public authority may refuse to disclose information to the extent that it does not hold that information when an applicant’s request is received), it did not expressly address regulation 12(1)(b) (the public interest in maintaining that exception, weighed against the public interest in disclosure) - which, along with regulation 12(1)(a), must be satisfied in order to permit the public authority to refuse disclosure. But the section of Coppel to which HSE referred in its response (20-011) includes the following, which picks up on the need to satisfy regulation 12(1)(a):

… In the case of a request under [FOIA], the public authority is not obliged when answering a request to consider information that is first held or recorded after the receipt of the request, even though this information answers the terms of the request. … In relation to a request under the regulations, where a public authority first holds information answering the terms of the request after the request is received, the public authority may refuse to disclose that information only if in all the circumstances of the case the public interest in refusing to do so outweighs the public interest in disclosing the information. …

43.

A footnote (74) to the last sentence quoted above says this:

This does not permit an applicant to make ongoing requests, but will cover the situation where the public authority has first held information after receipt of the request but before making its decision or decision on review. It would also appear to permit [IC] and the [FTT] to deal with information that Is first held by the public authority after it makes its decision.

44.

There is, at first blush, a slight tension between the need to satisfy regulation 12(1)(a), as recognised in the Coppel extract above, and the wording of regulation 5(1) – that a public authority that holds environmental information shall make it available on request. The use of the word “holds” in the present tense suggests that the public authority’s obligation depends on its holding the information at the time of the request. This, in essence, is what OGC v IC (at [108]) decided in relation to the FOIA regime, based on the wording of section 1. However, the critical difference (as against FOIA) would appear to be that regulation 5 is expressed to be “in accordance with” (amongst other provisions) regulation 12; and so I think Coppel is right to say that the regulations regime is different from the FOIA regime on this point, and that a public authority that acquires information after the date the request is received is only exempted from disclosure if the public interest balancing test resolves in favour of maintaining the exception for information not held at the date of the request. Given that HSE’s response to the appeal expressly cited that section of Coppel, it seems fair to assume that HSE agrees with what is said there.” (emphasis added)

Read in context, it is plain that the words in [UT 44] I have italicised represent the UT’s interpretation of the scope of reg.12(4)(a) read together with reg.12(1), in agreement with Coppel. That is the interpretation which the Respondent has now accepted is wrong, a view with which I agree. Regulation 12(4)(a), and indeed Art.4(1)(a), relate to an exception where the information requested is not held by the authority at the time when that request is received. That is also the view taken by different contributors to Coppel at para. 18-021:

“Where a public authority acquires or generates information after receipt of a request, that public authority is not obliged to consider that information in responding to the request. A person may, of course, make a further request for information in the same terms as the earlier request, but limited to information received or generated by the public authority after the date of receipt of the earlier request.”

At [UT 45] the Tribunal then focused on the nature of the process and decision under reg.11 and its relationship with reg.12(1):

“45.

But there is still – as the footnote from Coppel quoted above addresses – the question of the date at which one considers the matters set out in regulation 12(1)(a) and (b). On the language of the regulation, that must be the date at which a decision as to disclosure is being made – I derive this from regulation 12(1), which is a right of the public authority to “refuse” disclosure. Here, the FTT decision found that HSE responded to Mrs O’Hanlon’s request on 6 May 2020 (to the effect that the requested information was exempt under FOIA) but issued a reconsidered response on 5 August 2021. The reconsideration was pursuant to a process set out in regulation 11, whereby, if a requestor thinks that the public authority has failed to comply with a requirement of the regulations, they may make representations, which the public authority must consider – and then decide whether it has complied with the requirements (of the regulations). It seems to me that the regulation 11 decision is a decision as to whether to disclose information, and is therefore a decision to which regulation 12 – concerning a power to refuse disclosure – potentially applies. It therefore seems to me that 5 August 2021 (the date of the reconsideration decision) was the date at which HSE, as the public authority, needed to consider both the exception in regulation 12(4)(a) and weigh the public interests under regulation 12(1)(b).”

At [UT 46] the UT distinguished the Tribunal’s decision in Montague, where it had accepted in relation to FOIA 2000 that the date for considering an exception to disclosure and the public interest test is the date when an authority refused the request for information. Judge Citron pointed out that FOIA 2000 does not impose any obligation on a public authority to conduct a review of its decision to refuse disclosure, whereas reg.11 of the EIR 2004 does.

I note that when Montague reached the Court of Appeal ([2023] EWCA Civ 1378; [2024] 1 WLR 2185) Lewis LJ said at [46] that reference to the EIR 2004 was not a legitimate aid to the construction of the exceptions in FOIA 2000, given that the Regulations were made under different statutory powers in order to give effect to the Directive and the language differed. For similar reasons, I have not found the citation of authorities on FOIA 2000 of any real assistance to the resolution of the issues raised by this appeal. Instead, the focus needs to be on the language of the relevant legislation and its proper construction.

In Office of Communications v The Information Commissioner [2010] UKSC 3; [2010] Env. L.R. 20 the Supreme Court said at [3] that it saw no indication that the EIR 2004 introduced into domestic law exceptions to disclosure other than ones “matching in their terms and effect those permitted by the Directive”.

The right of access to EI under the Directive is dependent upon an applicant making a request to a public authority for information which is held by that authority (recital (8) and Art.3(1)). The right does not arise unless those interlocking requirements of a “request” to an authority for information which it “holds” are satisfied. That information must be in the possession of the authority or “physically held” by another person on its behalf (Art.2(3) and (4)). The natural reading of these provisions is that a person’s right is to EI held by a public authority at the time when the request is made, that is received, by that authority. The obligation on an authority is to disclose EI which it holds, uponrequest.

That reading is reinforced by recital (13) and Art.3(2). They require that the EI should be made available to the applicant “as soon as possible” or by no later than one (and in some cases two) months after the authority receives the request. Where, for example, the volume and complexity of the information is such that the one-month time limit cannot be complied with, the authority may have up to two months to comply with the request. But in that case, it must notify the applicant of that extension as soon as possible and in any event before the expiration of one month from the receipt of the request. Those requirements have to be capable of being applied practically. The obligation to disclose EI relates to information held by an authority when it receives a request and not to material which it receives subsequently, although it happens to fall within the descriptions of EI sought in that earlier request.

Article 4(1)(a) allows for a request to be refused if the information requested is not held by or for the authority to whom the request was addressed. The same paragraph then goes on to provide that where that authority “is aware that the information is held by or for another authority, it shall, as soon as possible, transfer the request to that authority” and inform the applicant accordingly. Alternatively, the authority may inform the applicant of “the public authority to which it believes it is possible to apply for the information requested”. Given the short timescales within which requests for EI and “transfers” are to be dealt with, and the need to avoid ambiguity, an authority receiving a request for EI can be expected to consider whether it, or another authority, holds the information sought as at the same time, namely the date when the request was received.

“Environmental information” is defined by Art.2(1). It comprises information in “written, visual, aural, electronic or any other material form” on subjects arranged in six sub-paragraphs (a) to (f). In summary, sub-paragraphs (c) to (e) refer to material such as legislation, policies, programmes, reports and economic analysis which is likely to be contained in a document of some kind. Sub-paragraphs (a), (b) and (f) refer to the state of the elements of the environment, or factors affecting those elements, or the state of human health and safety affected by environmental elements or factors. From a practical perspective it is necessary to determine whether a document is held by a public authority at a particular time in order to avoid uncertainty. The same also applies to information on the state of environmental elements or factors or the state of human health and safety, which will fluctuate over time. Consistent with the analysis set out above, the natural reading of the Directive is that the information to be made available is that held by the authority at the date when it receives the applicant’s request.

Where any applicant considers that his request for information has been ignored, wrongfully refused, inadequately answered or otherwise not dealt with in accordance with Articles 3, 4 or 5 (Footnote: ¹), Art.6(1) requires that a Member State should give him access to a procedure in which:

The reference to “reconsideration” does not support the respondent’s case that reg.11 and reg.12(1) (the grounds for refusal and the public interest test) must be applied to whatever information is held as at the date of the decision under reg.11. I say this for a number of reasons:

Essentially the analysis set out above in relation to the Directive applies to the EIR 2004.

The right of access to EI is dependent upon the applicant’s request for information held by the public authority. “Held” has the same meaning as in the Directive. The authority’s obligation is to make available EI that it holds on request, that is EI that it holds when it receives that request (regs.3(2), and 5(1)). That obligation to provide EI is subject to the same strict time limits as in the Directive (regs.5(2), 6(2), 7 and 14(2)). The natural reading of the EIR 2004 is that the issue of whether the EI requested is held by a public authority is to be determined as at the date when the authority receives the applicant’s request (see [61] to [62] above).

Regulation 12(1) allows a public authority to refuse to disclose the EI requested if an exception under reg.12(4) or (5) applies and the public interest test is satisfied. Regulation 12(4)(a) is crystal clear. That exception applies where the authority does not hold the information requested when it received the relevant request. That language is entirely consistent with Art.4(1)(a) of the Directive properly understood. It is also consistent with regs.5, 7 and 10 of the EIR 2004. Regulation 10 is the counterpart to the transfer provision in Art.4(1)(a) of the Directive and the same considerations apply (see [63] above).

The expression “EI” has the same meaning in the EIR 2004 as in the Directive (see reg.2(1)) and so the analysis in [64] above applies.

Regulation 14, dealing with the refusal of a request for EI, is tied into regs.12(1),(4) and (5) and is subject to the strict time limits based upon Art.3(2) of the Directive. It dovetails with the statutory scheme whereby the issues whether EI is held by a public authority and the application of reg.12(4)(a) are determined as at the date when the request was received by the authority.

The procedure for making a complaint to the Commissioner under s.50 of FOIA 2000 (as applied by reg.18) satisfies Art.6(1) of the Directive by providing for administrative review by an independent and impartial body established by law (see [65] above).

The heading to reg.11 refers to “reconsideration”. A heading is an aid to the construction of the provision to which it relates although it will be given less weight than the provision itself (R v Montila [2004] UKHL 50; [2004] 1 WLR 3141 at [31]-[36]). Headings should be seen as a brief guide to the content of a provision and not as controlling its language (Bennion, Bailey and Norbury on Statutory Interpretation (9^th ed) section 16.7). Here the body of reg.11 does not use the word “reconsideration”. In any event, for the reasons set out above, a “reconsideration” does not necessarily imply that any fresh consideration of an issue examines the circumstances as at the date of that decision as opposed to the date when the request was received. What matters is the substance of reg.11.

Mr Lockley points out that reg.11 imposes an obligation on the authority to address the representations made by the applicant in relation to his request for EI. The applicant can complain that the authority “has failed to comply with a requirement” of the EIR 2004 (reg.11(1)). Under reg.11(3)(b) the authority must decide whether “it has complied with the requirement”. By reg.11(5)(b) where the authority decides that “it has failed to comply with these Regulations” it must notify the applicant of that failure to comply and the action it “has decided to take to comply with the requirement”. Mr Lockley submits that the repeated use of the present perfect simple tense in the phrases “has complied” and “has failed to comply” must denote a continuing obligation to comply with “the requirement” which subsists as at the date of the determination under reg.11. He then says that it follows that a determination as to non-compliance and remedial action must be based on circumstances as at the date of the decision under reg.11, not the date when the applicant’s request was received.

Mr Lockley says that if this interpretation is accepted it affects the application of s.50 of FOIA 2000 when the Commissioner deals with a complaint. The Commissioner must decide whether a request has been dealt with in accordance with the requirements of Parts 2 and 3 of the EIR 2004 and whether the authority has failed to comply with the requirements of reg.11. But this submission does not add anything to the respondent’s argument. It simply begs the question how is reg.11 to be interpreted?

In my judgment, Mr Lockley’s interpretation does not accord with the language and function of reg.11 for the following reasons:

A fundamental flaw in the respondent’s argument is that it is inconsistent with reg.12(4)(a). Plainly that exception applies when the information requested is not held by the authority on the date when it received the request. The purpose of the review procedure under reg.11 is to ensure that the requirements of the EIR 2004 have been applied correctly in relation to a request, and if not, then the authority must take appropriate corrective action (see also Department for the Environment, Food and Rural Affairs v Information Commissioner). So when the issue is whether reg.12(4)(a) has been applied correctly, reg.11 must be applied compatibly with reg.12(4)(a). In other words, the “held” issue cannot be reviewed under reg.11 as at the date of that determination. It must therefore be irrelevant to have regard to EI which the authority received between the date when the request was received and the date of the review determination. In substance the respondent’s approach would be equivalent to the making of a fresh decision in response to a fresh request made after the EI had been received.

Furthermore, the respondent’s approach to reg.11 would render reg.12(4)(a) otiose. Where a public authority had correctly applied that provision to a request for EI which it did not hold at the time when it received that request, that decision would be of no effect if representations were then made under reg.11 and the authority subsequently received relevant EI before making its review decision. On the respondent’s interpretation the authority would be obliged to disclose the EI although there is nothing to correct in the original decision refusing to disclose the information requested. In terms of reg.11(5), the public authority will not have failed to comply with the EIR 2004 in relation to the request. In such a case, the solution is for the requester to make a further request.

Indeed, the respondent’s interpretation of reg.11 would have undesirable consequences. The review mechanism could become effectively open-ended. A requester could trigger successive reviews by making further representations as circumstances change or simply where that person is dissatisfied with an authority’s reg.11 decision as having “failed to comply with a requirement” of the EIR. There is nothing in the language and structure of the EIR 2004 to indicate that that is how reg.11 is supposed to operate.

The respondent asserts that cases in which additional relevant EI comes to be held by a public authority after the date of a request are “rare”. There is no evidence to support that view. The example of the many authorities, such as the HSE, which are responsible for conducting investigations indicates the contrary. Investigations may be live or ongoing after a request for EI has been made. The EIR 2004 requires that EI held at the date of the request to be made available, subject to any grounds of refusal which may apply. In such cases the application of the exceptions to material being received may be complex. The respondent’s interpretation of reg.11 so as to create a disclosure obligation which is continuing rather than related to individual requests, would create additional complexities and burdens and could impede the efficient conduct of investigations. The respondent suggests as an answer to such problems that the authority could refuse disclosure under reg.12(4)(b), namely that the request for information is manifestly unreasonable. But that is no real solution. Such a refusal would simply invite litigation on the evidence on which that refusal was based. The language of the EIR 2004 does not indicate that the legislature intended that an investigating authority should become embroiled in such complexities over the disclosure of EI. Instead it created a more straightforward, practical system which requires disclosure upon the making of, and in relation to, a request.

For all these reasons I conclude that the respondent’s reading of reg.11 is flawed in essentially the same way as the analysis by the UT based upon a passage quoted from Coppel.

An issue may arise as to how the public interest test applies to a refusal based on reg.12(4)(a). The parties’ submissions did not consider that issue in any detail. However, given that it does not need to be decided in this case, it should be left to a case in which it does.

I would allow the appeal on both of the grounds advanced by the Commissioner and the HSE’s single ground of appeal.

In summary, where a public authority acting under reg.11 reviews or reconsiders a refusal of a request to disclose EI on the ground set out in reg.12(4)(a):

I agree.

I also agree.