[2025] UKUT 066 (AAC)

These letters were referred to in Ms Cloherty’s witness statement at paragraph 22. This said that Amark was the asbestos removal company engaged by the “duty-holder” (the site developer) to remove asbestos from the site. Ms Cloherty’s evidence was that HSE commenced a separate investigation into Amark (because it was not registered as a licensed asbestos removal contractor) and served notification of contravention letters against Amark; however, Amark “disappeared” and HSE was not able to take its investigation further.

HSE’s response to this appeal said as follows (paragraph 13):

The Amark notices were dated 15.5.2020 and 26.8.2020. That postdates the date on which the Request was received on 27.4.2020. Therefore HSE was not obliged to consider it as held: reg 12(4)(a) EIR; Coppell, 20-011. Contrast the other Amark information disclosed to Ms O’Hanlon: “Amark Job Completion Form dated 6th April 2020” [OB/82]

Mr Tabori’s skeleton argument was in similar terms, except that it cited OGC v IC [2010] QB 98, at [105-109], rather than referring to Coppel on Information Rights (the textbook).

Mrs O’Hanlon responded to this at the hearing by arguing that the date of her request was 12 October 2020 and not 27 April 2020. I do not accept this argument: the FTT decision found that the request was made on 27 April 2020; and the email of to 12 October 2020 to which Mrs O’Hanlon referred, which appeared more in the nature of a “chasing” email than a new request, did not persuade me of any legal error in that finding.

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. …

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.

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.

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).

Although the foregoing reasoning is, I believe, very much in line with the Upper Tribunal’s decision in Montague, in that I am focusing on what the statutory regime requires of the public authority, and when, the conclusion I reach is seemingly different, in that I am deciding that the date for considering whether an exception applies, and for weighing the public interests, is not the date of the “first” decision (6 May 2020 – which was before the information in question was held by the public authority), but the date of the reconsideration decision (5 August 2021, by which time it did hold it). The reason for that is, of course, the difference between FOIA and the regulations on the matter of public authorities “reviewing” their own decisions: there is no statutory mechanism for it in FOIA (see [62-63] of the Upper Tribunal’s decision in Montague), but under the regulations, there is regulation 11.

It follows that the FTT, having erred in not recognising that the Amark contravention letters were within the scope of Mr O’Hanlon’s request, would only have been “bound” to find that this information was within the exception for information not held at the date of receipt of the request, if it was similarly bound to find that the public interest in maintaining that exception outweighed the public interest in disclosure. However, the FTT decision did not consider that latter point: it did, of course, turn its mind to the question of whether maintaining a different exception, regulation 12(4)(b), outweighed the public interest in disclosure of different information; but little or nothing can be inferred from that reasoning (given the differences I have highlighted) as to what the FTT would have been bound to find as regards the exception for information not held at the date of receipt of the request. Indeed, HSE’s response to this appeal, and skeleton argument, in pointing out that “other Amark information”, pre-dating the date of Mrs O’Hanlon’s request, had been disclosed, seemingly emphasise material differences between information relating to Amark, as against information in Mrs O’Hanlon’s request relating to those who voluntarily engaged with HSE.

I do not therefore consider that the FTT, even if it had not erred in treating the Amark contravention letters as outwith Mrs O’Hanlon’s request, would have been bound to apply the exception for information not held when the request was received, or any other exception to disclosure. It follows that the error was a material one; and for that reason it seems to me fair and just to set aside the FTT’s decision, to the extent of that error.