The Court of Appeal in Information Commissioner and another v O’Hanlon [2026] EWCA Civ 838 has found that the duty to disclose environmental information only applies to information held at the date of the request, and further that the exception to disclosure in reg 12(4)(a) of the Environmental Information Regulations 2004 (“EIR”) (where a public authority does not “hold” the environmental information requested) is to be applied as at the time of the initial request, not the time of the authority’s refusal or subsequent reg 11 review.

This clarifies that where an authority comes into possession of the relevant environmental information after the request for that information has been refused, the authority is not under a duty to disclose it.

Background

EIR imposes a duty on public authorities to make environmental information they hold available on request: reg 5(1). However, an authority may refuse to do so where: (a) a relevant exception applies and (b) in the circumstances, the public interest in maintaining the exception outweighs the public interest in disclosure: reg 12(1). One such exception is where the authority “does not hold that information when an applicant’s request is received”: reg 12(4)(a).

EIR has an inbuilt review process whereby if an applicant considers that an authority has failed to comply with EIR requirements it can make representations to the authority who then must decide whether it has complied with the requirement: reg 11.

But what happens when a public authority has, since refusing the initial request because it did not “hold” the relevant environmental information (i.e. the exception in reg 12(4)(a)), subsequently come to hold such information and is now conducting a review under reg 11? Is the authority’s assessment of whether the information is “held” to be assessed at the time of the initial request or its subsequent review? Is the public authority required to disclose that information?

The decision

The Court of Appeal (Holgate LJ, with whom Lewison LJ and Dove LJ agreed) held that whether information is “held” – for the purposes of reg 5(1) generally, but also when applying the reg 12(4)(a) exception – is to be assessed as at the time of the initial request, overturning the Upper Tribunal’s decision that these matters fell to be assessed as at the date of the internal review.

The Court considered this approach aligned with the natural reading of EIR and Directive 2003/4/EC. While the heading to reg 11 contained the word “reconsideration”, in substance it provided for a process of review which was tied to the previous request, not a fresh determination. In the Court’s view, reg 11 could not be read as imposing an obligation of continuing disclosure in respect of the EIR requirements it applied to.

Several aspects of the Court’s reasoning are notable.

First, the Court was careful to limits its analysis to reg 12(4)(a) and did not express a view on the timing of the other exceptions in regs 12(4) and (5). However, the Court’s generalised comments that reg 11 does not impose a continuing duty of disclosure or allow for fresh reconsideration is indicative that it would have likely taken a similar approach to the other exceptions as applies under FOIA – namely that the relevant time is the point of the public authority’s refusal (in which case reg 12(4)(a) would be unique in being applied at the date of the request).

Second, the Court left open how the public interest test in reg 12(b) applies to the exception in reg 12(4)(a) and whether this might impact questions of timing. Guidance on this would have been useful, as it is unclear how the public interest in disclosing the information can be assessed in circumstances where the authority does not hold the information in the first place. Presumably, the public interest test is effectively a dead letter in these circumstances.

Third, the Court did not comment on the curiosity that, on its reading of regs 5 and 12(4)(a), the exception in reg 12(4)(a) only appears to apply in circumstances where a duty under reg 5 would not arise in the first place (i.e. because information is not held at the time of the request). While this may be a necessary result of reg 12(4)(a)’s drafting, the Court did not appear to be concerned by this somewhat unusual outcome.

Peter Lockley appeared for Mrs O’Hanlon.