Whether information is "held" for the purposes of the Freedom of Information Act 2000 ("FOIA") and its sibling legislation, the Environmental Information Regulations 2004 ("EIR") is often a highly fact sensitive exercise – even before a public authority considers whether any exemptions or exceptions from disclosure apply. Over the years, the tribunals and courts have grappled with a range of questions in this area. However, a recent Court of Appeal decision has provided useful guidance on a narrower issue: whether information acquired after a request is received, but before an internal review is completed, falls within the scope of that request.
In Information Commissioner and Health and Safety Executive v O'Hanlon, a case arising under the EIR, the Court considered whether information obtained by a public authority after receiving a request should be treated as falling within the scope of that request if it is held by the time an internal review is conducted. Ms O'Hanlon sought information from the Health and Safety Executive ("HSE") relating to a demolition site containing asbestos. The HSE refused the request and subsequently carried out an internal review. During the period between the original request and the review, the HSE acquired further information falling within the scope of the request. The Upper Tribunal held that this later-acquired information should be taken into account because the relevant date was the date of the internal review. The Court of Appeal disagreed; it held that the EIR regime is concerned with information held when the request is received and that information acquired subsequently does not automatically fall within scope simply because it is held at the point an internal review takes place.
The Court's decision effectively confirms that, for these purposes, a request under the EIR should be assessed by reference to the information held at the date of receipt of the request, rather than the date of any subsequent internal review. It provides helpful clarification of how public authorities should approach requests where the information held evolves over time – which is often the case where requests concern matters that continue to evolve, such as investigations, regulatory activity or projects.
The decision means that requesters cannot generally use the internal review process to obtain information that was not held when the original request was made. Public authorities should therefore ensure they maintain clear records of what information was held and what searches were conducted at the time the original request was received.
In practice, however, a determined requester may simply submit a further request for later-created or later-acquired information. In those circumstances, the authority would need to consider that request on its own merits, including whether any of the wider provisions within the EIR affect the scope of its obligations to disclose the information sought.
Although the decision was made under the EIR, the Court’s reasoning is likely to be of interest to public authorities dealing with FOIA requests too, in assessing whether similar arguments could arise in a FOIA context.
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