Anonymized Summary of Court of Appeal Judgment

Factual and Procedural Background

On 27 April 2020 the Respondent made a request to Company B for environmental information ("EI") concerning demolition work at The City. Company B initially responded on 6 May 2020 refusing disclosure. The Respondent sought an internal review under regulation 11; on 9 August 2021 Company B notified the outcome, saying it did not hold some requested information and withholding other material under exceptions in regulation 12. The Respondent complained to Company A. Company A issued a decision requiring disclosure of some information and held that Company B did not hold other parts of the request. The Respondent appealed to the First-tier Tribunal (FTT). At the FTT hearing Company B said a further search had identified additional EI and disclosed some material; the FTT concluded Company B held no further EI. The Respondent appealed to the Upper Tribunal (UT). The UT found that Company B did hold, and in one respect had failed to disclose, certain "notification of contravention" letters dated after 27 April 2020 relating to Company C. The UT directed the FTT to redetermine only whether those contravention letters should have been disclosed, treating the relevant date for the holding/public interest assessment as 9 August 2021 (the date of Company B's reg.11 decision). Company A and Company B appealed to the Court of Appeal.

Legal Issues Presented

1. Is the date for determining whether a public authority "holds" environmental information the date when the authority received the applicant's regulation 5 request, or the date of the authority's decision on review under regulation 11?
2. Should regulation 12(1) (the public interest balancing) be applied as at the date when the request was received or as at the date of the authority's regulation 11 decision?

Arguments of the Parties

Appellants' Arguments (Company A and Company B)

• The UT erred in treating the date of a reg.11 review as the relevant date for determining whether information was "held" and for conducting the reg.12(1) public interest balancing; the correct date is the date the request was received.
• Regulation 12(4)(a) and the Directive require that "held" is determined at the time of the request; reg.11 cannot extend the disclosure obligation to information acquired after a request.

Respondent's Arguments

• Regulation 11 requires the authority, when considering representations, to decide whether it "has failed to comply" with a requirement; that language and the review function mean matters under reg.12(1) and the question whether information is held should be determined as at the date of the reg.11 decision.
• Accordingly, if Company B acquired relevant EI between the date of the request and the reg.11 decision, the reg.11 decision should address whether that EI must be disclosed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court adopted a purposive construction of the EIR and the Directive. The Directive and Arts.2–4 were read to establish that the right of access attaches to environmental information "held" by a public authority at the time the authority receives the applicant's request. The EIR's definitions and time limits (regs.3(2), 5, 7, 10, 12 and 14) were analysed and the court concluded that "held" in reg.3(2) and the exception in reg.12(4)(a) clearly refer to the authority's possession when the request is received. The court rejected the UT's interpretation that, on review under reg.11, the authority should determine "held" and conduct the reg.12(1) public interest balancing as at the date of the reg.11 decision. The court explained that reg.11 is a review mechanism tied to the original request and to whether the authority complied with requirements in relation to that request; it does not convert the review into a fresh obligation to consider information acquired after the date of the original request. Applying principles of statutory interpretation and practical considerations, the court held that allowing reg.11 to operate as the Respondent contended would undermine reg.12(4)(a), render it otiose, and permit open-ended successive reviews. The court therefore concluded that where reg.12(4)(a) is relied on, both the "held" question and the reg.12(1) public interest balancing are to be assessed as at the date the request was received.

Holding and Implications

APPEAL ALLOWED

Holding: The Court allowed the appeals of Company A and Company B. It held that, where a public authority reviews a refusal under reg.11 that relied on reg.12(4)(a):

• The relevant date for determining whether EI is "held" is the date the authority received the applicant's regulation 5 request (not the date of the reg.11 decision).
• Regulation 12(1) (the public interest balancing) is to be applied as at that same date when the request was received.

Implications: The UT's order treating the date of the reg.11 decision as the relevant date was overturned. The direct effect is that information first acquired after the date of a request is not to be treated as "held" for purposes of assessing reg.12(4)(a) in a reg.11 review; requesters may, if appropriate, make a fresh request for subsequently acquired EI. The opinion confined detailed issues about how the public interest test applies in particular post-request scenarios to future cases.

Panel and Anonymized Participants

Panel: Judge Lewison, Judge Holgate and Judge Dove. UT judge who gave the earlier decision: Judge Citron.

Parties: Company A (first appellant), Company B (second appellant), Respondent. Company C is the contractor referred to in the material disclosed post-request.