Tribunal advocates generous meaning of "public authority" within the EIR

The First-tier Tribunal ("FTT") in Poplar Housing Association and Regeneration Community Association ("Poplar") v Information Commissioner and Peoples Information Centre (EA/2018/0199) has provided some further clarity, as well as its own opinion, on when a private organisation may be considered a "public authority" for the purposes of regulation 2(2)(c) of the Environmental Information Regulations 2004 (the "EIR").

Key Points

• A body performing public administrative functions must be empowered to do so by virtue of "a legal basis specifically defined in national law" for it to be a "public authority" under regulation 2(2)(c) of the EIR. This requires an explicit statutory delegation of power.
• Even though Poplar was subject to direct statutory regulation and had been granted certain statutory powers as a private registered provider ("PRP") of social housing, crucially it did not have a legal basis "specifically defined in national legislation".
• The FTT would have preferred to take a broader approach to regulation 2(2)(c) but it felt bound by existing case law in its interpretation.
• To be considered a public authority, an organisation must carry out services, duties or activities of public interest that at least partly relate to the environment.
• The organisation must also have special powers, going beyond those normally applicable in private law, but those special powers do not necessarily have to directly relate to an environmental function.

Background

Poplar is a housing association with charitable status that owns and manages properties in East London. It was originally set up with a transfer of housing stock from the London Borough of Tower Hamlets. Poplar is registered with the Regulator of Social Housing as a PRP of social housing and has certain statutory powers not available to other landlords such as obtaining injunctions against anti-social behaviour.

Poplar received requests for information in relation to its redevelopment projects but it was unclear whether Poplar was a "public authority" under regulation 2(2)(c) of the EIR, ie a body or person "that carries out functions of public administration".

Regulation 2(2)(c) gives effect to the definition of "public authority" in Article 2(2)(b) of Directive 2003/4/EC (the "Directive") which in turn transposes Art 2(2)(b) of the Aarhus Convention: "any natural or legal person performing public administrative functions under national law, including specific duties or services in relation to the environment" (emphasis added).

In a decision notice dated 14 August 2018, the Information Commissioner ("ICO") concluded that Poplar was a public authority for the purposes of the EIR. Poplar appealed to the First-tier Tribunal.

"Public authority" under regulation 2(2)(c) of the EIR

The key issue before the FTT was the correct approach to use when determining whether a body "carries out functions of public administration" for the purposes of regulation 2(2)(c) of the EIR.

The meaning of Article 2(2)(b) of the Directive was expressly considered by the Grand Chamber of the Court of Justice ("CJEU") in Fish Legal v Information Commissioner(C-279/12) [2014] QB 521 ("Fish Legal EU"). The CJEU relevantly stated that Article 2(2)(b) concerned "administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law" (emphasis added) ("Fish Legal EU approach").

The ICO reasoned that Poplar's provision of social housing is a function of public administration and that it is also partly environmental in nature. The ICO also found that Poplar satisfied the "special powers" aspect of the Fish Legal EU approach as Poplar could apply to the County Council for land acquisition and apply for orders (eg injunctions) under certain statutes not available to private landlords. On appeal, Poplar argued that the ICO's reasoning was incorrect and misapplied Fish Legal EU, particularly as the ICO had come to the opposite conclusion on the issue of "special powers" in respect of a different PRP of social housing in July 2018 (Decision Notice FER0700353).

Decision

The FTT considered Cross v Information Commissioner [2016] UKUT 153 (AAC) ("Cross") in which the Upper Tribunal provided guidance on Fish Legal EU, the Aarhus Convention, the Directive and the EIR. Against that background, the FTT applied the Fish Legal EU approach to Poplar.

The first question was whether Poplar had been "entrusted with the performance of services under a legal regime". This requirement arises from the use of the phrase "under national law" in the Directive and in the Aarhus Convention (though it does not appear in the EIR themselves). According to Fish Legal EU and Cross, "under national law" means that only entities empowered to perform administrative functions "by virtue of a legal basis specifically defined in the national legislation which is applicable to them" are capable of being public authorities under Article 2(2)(b). Despite the fact that the EIR contains no such express limitation, the FTT felt bound to follow Fish Legal EUand Cross on this point and found that Poplar had not been entrusted to provide social housing by virtue of a legal basis "specifically defined in national legislation". The regulatory framework in which Poplar operated was not enough – there needed to be an explicit statutory delegation of power to Poplar.

In case the FTT was wrong in its finding that the case law required an explicit statutory delegation of power, it set out alternative conclusions on the application of Fish Legal EU approach and found that Poplar satisfied each of the elements. In doing so, the FTT noted that Poplar was carrying out services of public interest and confirmed that in its view an organisation must be carrying out some duties, activities or services relating to the environment, which Poplar was. It also addressed the issue of whether or not the body's "special powers" needed to be environmental or relate to an environmental function. The FTT concluded (albeit obiter) that there was no such requirement.

Comment

This case provides explicit guidance on how regulation 2(2)(c) of the EIR should be approached in relation to private organisations that carry out some arguably public functions.

It will be interesting to see whether there is any appeal to the Upper Tribunal. In its judgment, the FTT commented that interpreting the phrase "under national law" in Article 2(2)(b) of the Directive as requiring a legal basis "specifically defined in national legislation" was "artificially narrow". The FTT considered it to be a "serious limitation" that a body carrying out a public service "in the shoes of the state", albeit without an express delegation of statutory functions, falls outside the scope of the EIR. The FTT therefore appeared to be advocating for the broader legal context of direct statutory regulation and the availability of statutory powers to be sufficient to bring an organisation within the meaning of public authority for the purposes of the EIR, even commenting that Poplar's contractual obligations should have been sufficient to constitute an entrustment of services under a legal regime i.e. that taking on a contractual obligation voluntarily could lead to classification as a public authority.

The FTT's concerns were also recently echoed by the Information Commissioner. In her report titled "Outsourcing Oversight? The case for reforming access to information law", which was laid before Parliament on 28 January 2019 and debated in Westminster Hall on 6 March 2019, the Information Commissioner identified this issue as a "significant gap in the public's right to know".

There is therefore growing support for the extension of the FOI and EIR regimes to private organisations involving in effective outsourcing of public functions. If reforms are brought forward in this area it could potentially lead to a large number of regulated entities in a variety of sectors being caught by these regimes.