When does environmental information fall within an EIR request?

Charles Mather, a solicitor in Harrison Drury’s regulatory and compliance team, explains what a recent Court of Appeal judgment means for public authorities and contractors responding to environmental information requests.

In Information Commissioner and another v O’Hanlon [2026] EWCA Civ 838, the Court held that the relevant date for determining whether environmental information is “held” is when the authority receives the original request.

Information obtained only after that date does not become subject to the original request simply because it is available when the authority conducts an internal review.

What was the issue before the Court?

The request concerned information about the Health and Safety Executive’s inspection of demolition works in Merseyside.

The HSE received further relevant material after the original request but before completing its internal review, raising the question of which date should apply.

The Environmental Information Regulations 2004 (EIR) give the public a right to request environmental information held by public authorities. Regulation 5 requires an authority to make information it holds available on request, subject to the exceptions set out in the EIR.

One of those exceptions, regulation 12(4)(a), applies where the authority did not hold the requested information when the request was received.

The Court of Appeal had to decide whether to assess the authority’s position on the date of the original request or on the later date of an internal review under regulation 11. This mattered because the authority had come to hold relevant information after the initial request.

What did the Court decide?

The Court of Appeal agreed that whether information is “held” must be assessed at the date of the original request. The internal review process considers whether the authority handled the request correctly; it is not a fresh request and does not create a continuing duty to disclose information acquired later.

This means an authority does not have to disclose, in response to the original request, information it did not hold when it received the request, even if it comes into its possession before its refusal is reviewed.

The judgment overturns the Upper Tribunal’s conclusion that the relevant position should be assessed at the date of the internal review. It therefore provides greater certainty for authorities dealing with requests while another organisation is still producing, collecting, or supplying information.

The decision was, however, focused on the “information not held” exception in regulation 12(4)(a). It does not conclusively determine when to assess any other EIR exception.

What does the judgment mean for public bodies?

The judgment does not reduce the importance of carrying out a careful and properly documented search when an EIR request is received. Public authorities should be able to identify what information they held on that date, where it was held and whether another person or organisation held it on their behalf.

Public bodies should consider:

• recording the date and scope of each request clearly;
• carrying out prompt searches across relevant teams, systems and accounts;
• checking whether contractors, consultants or service providers hold information on the authority’s behalf;
• preserving an audit trail of the searches undertaken and the conclusions reached;
• distinguishing information held at the date of the request from material created or obtained later;
• explaining the position clearly in any refusal notice and internal review decision; and
• ensuring that any internal review assesses the original response by reference to the information held when the request was received.

Although later-acquired information does not fall within the original request, a new request may capture it. Authorities should therefore avoid treating the judgment as a reason to delay obtaining information or responding to the requester.

Implications for contractors and other organisations

Working for a public authority does not automatically make a private company, consultant or contractor directly subject to the EIR. However, information held by a third party may still be treated as held by the public authority where that third party holds it on the authority’s behalf.

Contracts and information-management arrangements should make clear who owns or controls relevant records, how information is stored, and how quickly it must be supplied when an EIR request is received. Organisations providing public services, environmental advice, infrastructure works, planning support or regulatory functions should ensure that staff recognise potentially relevant information and preserve it appropriately.

Separately, some private organisations may themselves qualify as public authorities under the EIR because they exercise public administrative functions under legislation or are controlled by a public authority and carry out environmental responsibilities, functions or services. The substance of the organisation’s role, rather than its private-sector status alone, may therefore be important.

Conclusion

The decision gives public authorities a clear reference point: the information held when the request was received. It does not remove the need for prompt, properly documented searches or effective arrangements with contractors and service providers. Those processes will be central to demonstrating that the original request and any subsequent review were handled correctly.

Advice may be particularly useful where relevant records are distributed across several contractors, contractual access rights are unclear, or there is uncertainty about whether an organisation is itself subject to the EIR.

If you would like advice on responding to environmental information requests or reviewing your information governance and contractual arrangements, contact Harrison Drury’s regulatory, compliance and licensing team on 01772 258 321.

Charles qualified as a solicitor in our regulatory, compliance and licensing and insolvency and restructuring teams in 2024. He advises individuals and organisations on a wide range of contentious and non-contentious issues, including regulatory and local authority investigations and prosecutions, insolvency and data protection.