[2025] UKUT 066 (AAC)

Between:

Patricia O’Hanlon

Appellant

- v -

Information Commissioner

First Respondent

and

Health and Safety Executive

Second Respondent

Before: Upper Tribunal Judge Citron

Hearing venue: Manchester CJC

Representation:

Appellant: by herself

1^st Respondent: by their solicitor (but not represented at the hearing)

2^nd Respondent: by Tom Tabori of counsel, instructed by Government Legal Department

On appeal from:

Tribunal: First-tier Tribunal (General Regulatory Chamber) (Information Rights)

Tribunal Case No: EA/2021/0317

Decision Date: 3 February 2023

SUMMARY OF DECISION

ENVIRONMENTAL INFORMATION - GENERAL (93.7)

Environmental Information Regulations 2004 – appellant’s information request was in form of “any documents or correspondence held by [the public authority] in relation to” a particular site where demolition works had taken place, followed by 11 particular documents (or categories of documents) of which the appellant was aware at the time – the Upper Tribunal holds that the information request was not restricted to the 11 items, as their presence in the request did not restrict the plain meaning of the opening words of the request – the FTT erred in law in holding otherwise – however, the error was not material in relation to some of the information requested, because, in respect of these, the FTT would have been bound to conclude that disclosure was not required, even if it had not erred, due to the availability of other exceptions to the requirement to disclose – this was due, in the case of some information, to substantial similarity with other parts of the FTT’s reasoning, regarding regulation 12(5)(b) (exception where disclosure would adversely affect ability to conduct inquiry); and in the case of some other information, it was because the information was publicly available in another format (regulation 6(1)(b)). However, in the case of one piece of information, which was not held at the time of the request (exception in regulation 12(4)(a)), but came to be held before the public authority’s reconsideration decision under regulation 11, the FTT had not turned its mind to the public interest balancing test as regards that exception (as was required by regulation 12(1)(b)). The Upper Tribunal holds that the FTT would not have been bound to resolve the competing public interests in favour of maintain the exception for documents not held at the time of the request, and so the FTT’s error, in treating that particular information as outwith the information request, was material. Appeal allowed to that extent and the matter remitted to a fresh panel of the FTT for determination.

DECISION