The Court of Appeal recently handed down judgment in Information Commissioner & Anor v O’Hanlon [2026] EWCA Civ 838, a case that might have, and almost does, determine the issue of the date at which an exception to disclosure under the EIR 2004 falls to be applied.
Mrs O’Hanlon requested information from the Health and Safety Executive (“HSE”) about disposal of asbestos at a site in Merseyside. The Upper Tribunal identified two relevant documents that had been generated after her request, but before HSE’s much-delayed internal review – or more properly ‘reconsideration’, in the terms of reg. 11 EIR – of its initial response to the request. The UT decided (1) that these documents were in scope of the request and (2) that any exceptions to disclosure should be applied at the time of the reconsideration – distinguishing the position under FOIA, where the relevant date is that of the original response. The Information Commissioner and HSE appealed.
On Issue (1), the Court of Appeal held that the duty to disclose environmental information relates only to what is held at the date of the request. On issue (2), it limited its consideration to the exception in question – reg. 12(4)(a). That is a curious exception that applies where a public authority “does not hold that information when an applicant’s request is received”. Like all other EIR exceptions, it is subject to a public interest balancing test – an odd exercise in relation to information that the authority simply does not hold. What is more, on the Court’s findings on issue (1), the duty to disclose would not apply to the information in the first place. The judgment is silent on these puzzles, but finds that reg. 12(4)(a) falls to be applied as at the date of the request.
Although the judgment does not opine on the relevant date for other exceptions, it demolishes the Upper Tribunal’s reasons for holding that it was the date of reconsideration. The practical result would appear to be that, for all exceptions other than reg. 12(4)(a), the relevant date is that of the initial response – as it is under FOIA.
Peter Lockley appeared for Mrs O’Hanlon.
