The Environmental Information Regulations 2004 – who is a public authority?

What is a “public authority” for the purposes of the EIRs?

In broad terms, regulation 2(2) of the EIRs provides that a “public authority” means government departments and other public authorities (using the definition set out in the Freedom of Information Act 2000. However, the definition also covers other organisations that carry out functions of public administration or other organisations that have public responsibilities relating to the environment.

The first decision

On 29 January 2020, the Information Commissioner held that E.ON UK plc (“EON”) was a public authority for the purposes of the EIRs. EON had refused to comply with a request for information (which concerned a windfarm and the impact on fishing) on the grounds that it was not subject to the EIRs – EON was not the owner or operator of the site when the information request was received.

Referring to a previous decision of the Upper Tribunal (Fish Legal v Information Commissioner & others), the Information Commissioner held that EON was a public authority as a body that carried out functions of public administration. The reasons given include that although it is a private company, it was a body that carried out functions of public administration and had been entrusted with the performance of a public service by statute.

A copy of the decision notice can be found here.

The second decision

A few days later, on 3 February 2020, the Information Commissioner reached a similar decision in respect of Heathrow Airport Ltd (the “Company”). A request was made to the Company asking for information relating to proposed development and related infrastructure at Heathrow Airport. The Company refused, again on the basis that it was not a public authority for the purposes of the EIRs.

The reasons given for the Information Commissioner’s decision were similar to the reasons given in the EON case, and the Company was also held to carry out functions of public administration.

Referring to a decision of the Upper Tribunal from 2016, the Information Commissioner carried out a “cross check”, to consider whether the conclusion reached gave effect to the purposes and objectives of the EU Directive that the EIRs implemented.  This required the Information Commissioner to look at whether there was sufficient connection between the functions of the Company and the functions the state undertake. For example, the Information Commissioner considered that up until 1986, the operation of the Airport was directly under state control. Its cross check considered that there was a sufficient connection.

A copy of the decision notice can be found here.

What do these decisions mean?

It is well-established law that private companies can be public authorities for the purposes of the EIRs. However, these decisions indicate that the scope and application of the EIRs is widening.

Complying with requests for information under the EIRs can be a demanding and resource-intensive task – if you are private company and you consider that you may now be a “public authority” and subject to the requirements of the EIRs, we would recommend that you take steps to ensure that you can comply.

We have a team of lawyers here at Ward Hadaway who specialise in advising on the EIRs and the Freedom of Information Act 2000. If you are a private company and you are concerned that you may now be subject to the EIRs, please don’t hesitate to contact us and we would be happy to discuss how we can help you comply with your obligations.