FT/EA/2024/0464 - [2025] UKFTT 01131 (GRC)

We have considered whether the duty pursuant to regulation 5(1) requires the Council to determine what environmental information is held at the time that the request is made or at a later time (either when the request is responded to or at the time of the Commissioner’s investigation). We are satisfied that the relevant time is the time at which the request is made for the reasons below.

Firstly, the natural interpretation of the wording of regulation 5(1) and (2) of the EIR (as set out above) is that it includes information held at the time of the request – as supported by the fact that there is a duty to disclose such information, subject to any exemption, within 20 working days of receipt of the request. This interpretation is also supported by the wording of regulation 12(4)(a) of the EIR which states that “…..a public authority may refuse to disclose information to the extent that….it does not hold that information when the applicant’s request is received”. These two regulations support the interpretation that the relevant time is the time when the request is made.

Secondly, we note the Commissioner’s guidance online which states:

“Unless you establish that an exception applies, you will usually need to determine what environmental information you held at the time of the request and provide the requestor with that information”.

Thirdly, we have had regard to the Upper tier Tribunal decision in Patricia O’Hanlon v Information Commissioner and Health and Safety Executive [2025] UKUT 66 (AAC) where (albeit in the context of considering the interplay between regulation 5(1) and regulation 12(1)(a)) the Tribunal held (at paragraph 44) that:

“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 ‘holds’ in the present tense suggests that the public authority’s obligation depends on its holding the information at the time of the request”.

The Tribunal notes that, in this case, the Upper tier Tribunal held that information obtained after the date that the request was received is only exempt from disclosure if the public interest balancing test resolves in favour of maintaining the exemption for information not held at the date of the request (and so the concept of information that is ‘held’ can extend to information obtained at a date later than the date that the request was made). However, in our view, this does not disturb the position that information held at the date of the request is in scope of the request, even if information that is later held is also deemed to be included.