Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 066 (AAC)

Fecha: 14-Ene-2025

At [2], the FTT stated that the appeal concerned Mrs O’Hanlon’s contention that

HSE held further information within scope of her request; and

the information withheld under regulation 12(5)(b) should be disclosed.

(By way of background: regulation 12(5)(b) is an exception to disclosure, permitting a public authority to refuse to disclose environmental information, where disclosure would adversely affect (amongst other things) “the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature”. Regulation 12(1)(b) imposes an additional requirement: that, in all the circumstances, the public interest in maintaining the exception outweighs the public interest in disclosing the information).

At [7], the FTT decision recorded that IC’s decision notice had found that, at the time of Mrs O’Hanlon’s request, HSE’s investigation into the “incident in question” was still live; that IC accepted that if this material were to be disclosed during the investigation, it would make those involved in the incident less likely to volunteer further information to the HSE; it would also potentially make the public and involved parties less likely to volunteer information to HSE in its investigations of future incidents. IC also considered that disclosing the requested information would frustrate HSE’s efficient investigation of the incident; this was because, given the circumstances, and the interests of different parties in the incident, IC considered that disclosure could have generated further correspondence and queries to HSE, distracting it from its investigation.

At [8], it was recorded that IC considered that disclosing the requested information at the time of the request would have prejudiced HSE’s ability to carry out its investigation.

10.

At [9], under the heading “Appellant’s Grounds of Appeal”, the FTT recorded that Mrs O’Hanlon “stated that [IC] erred in concluding, on the balance of probabilities, that the HSE did not hold any or any further information in relation to parts two; five and eleven of her requests.”

11.

At [13] there is reference to Mrs O’Hanlon seeing herself as seeking justice for the residents; and as saying that HSE knowingly allowed unlawful demolition on a contaminated site.

12.

[14-35] consists of the FTT recording arguments made by the parties in their responses and replies to the appeal.

13.

At [36-43], the FTT summarised the witness evidence of Jane Cloherty, HSE’s disclosure manager. The decision records that Ms Cloherty gave evidence at the FTT hearing “at length” and was cross examined by Mrs O’Hanlon “at length”.

14.

[44-55] consists of the FTT recording the parties’ closing submissions.

15.

The “conclusions” section of the FTT’s decision ([56-62]) contains the following:

as regards part 1 (inspectors’ reports) of Mrs O’Hanlon’s request: [58] states that internal emails, and inspectors’ notebooks, were not part of the information requested by Mrs O’Hanlon; it also states, in square brackets, that “we accept that the notebook entries can be withheld under regulation 12(5)(b)”;

as regards part 2 (complaints received from public etc) of Mrs O’Hanlon’s request: regulation 12(5)(b) applied to complaints/concerns received from third parties; it was said at [59] that “disclosure would have clear adverse effect on HSE’s ability to conduct investigations into possible regulatory breach or take enforcement action if unable to provide notifiers with a confidential environment in which to report, a dissuasion risk not removed by anonymisation.” The reasoning relies on the written and oral evidence of Ms Cloherty;

as regards part 5 (consignment notes for waste removed) of Mrs O’Hanlon’s request: [60] cites submissions of the parties but does not appear to state a conclusion;

as regards part 7 (F10 notification) of Mrs O’Hanlon’s request: [61] concludes that the F10 notification information disclosed to Mrs O’Hanlon (in Excel format) is all the F10 notification information that HSE holds in relation to the site (this being all that has been notified by the “duty-holder” to HSE);

as regards part 11 (correspondence between HSE, MP, council, and site developers) of Mrs O’Hanlon’s request: [62] applies the “four-fold approach from Archer” (Archer v IC and Salisbury DC EA/2006/0037, a decision of the FTT referred to at [45]). (I note that Archer says this at [50-51]:

50.
Under regulation 12(5)(b), a public authority can refuse to disclose information to the extent that its disclosure would adversely affect “the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature”.
51.
There are several points to note here. First, it is not enough that disclosure should simply affect the matters set out in paragraph 50 above; the effect must be “adverse”. Second, refusal to disclose is only permitted to the extent of that adverse effect. Third, it is necessary to show that disclosure “would” have an adverse effect - not that it could or might have such effect. Fourth, even if there would be an adverse effect, the information must still be disclosed unless “in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information”. All these issues must be assessed having regard to the overriding presumption in favour of disclosure. The result, in short, is that the threshold to justify non-disclosure is a high one.)

The FTT reasons at [62] as follows:

Ms Cloherty’s evidence described an adverse effect:

prejudice to HSE’s ability to carry out future investigations successfully;

the preference for, and quality of, voluntarily disclosed evidence;

the risk of deterring cooperation amongst the investigated;

an example of a previous significant impact caused by HSE disclosing correspondence that had been voluntarily disclosed to HSE;

importance of HSE having a safe space in which operate during live investigations;

information that reveals an authority’s strategy for dealing with regulatory breaches, including assessment of the merits of its position and strength of evidence, may have the adverse effect on the protected interest: Archer at [56];

ii.

no more than is necessary has been withheld;

iii.

adverse effect ‘would’ occur (rather than mere risk), based on Ms Cloherty’s evidence (which is described as lucid, cogent and detailed (written evidence) and frank and helpful (oral evidence));

iv.

public interest test: HSE’s investigative function is as dependent on the confidentiality of HSE’s correspondence with the “duty-holder” (i.e. the site developer) (part 11 of the request) as it is dependent on the confidentiality of complaints received by HSE (part 2 of the request); it is impossible to see the adverse effect on these functions as less great than the general public interest in transparency and the particular public interest in disclosure of this information to better inform Mrs O’Hanlon and the public about the action of the “duty-holder” and HSE’s investigation, that would result from the disclosure of this correspondence.

16.

[64] (in the immediately following section of the FTT’s decision, headed “Result”) states that the FTT was not persuaded on the balance of probabilities that there was any further information (in addition to that made available up to and including the date of the hearing) within the scope of the request held by HSE. At [63], the FTT states that HSE’s provision of “further” information (up to and including the date of the hearing) had been through the “sincere endeavours” of Ms Cloherty; and that the FTT found Ms Cloherty to be “honest, forthcoming and co-operative throughout.”

17.

At [65], the FTT stated that it was issuing a “substituted decision” whereby it found that there was information within the scope of Mrs O’Hanlon’s request held (by HSE) and not disclosed at the time of IC’s decision notice, which had subsequently (i.e. by the time the FTT’s decision was promulgated) been disclosed. However, the FTT was not persuaded that was any further material (that fell to be disclosed) and made no further direction to HSE in that regard.

18.

At [67], the FTT directed that, “if there is further information sought, which may be held by [HSE]”, the parties “serve the overriding objective in rule 2 [of the FTT’s procedure rules] and seek a resolution by means of a consent order or other such effective and efficient means that will save the Tribunals’ precious time and resources”.