“Public Authorities” for the purposes of the EIR

The Information Commissioner recently published two decision notices in short succession which found that gas and electricity supplier, E.ON UK plc (“E.ON”), and Heathrow Airport Ltd (“HAL”) were both “public authorities” for the purposes of the Environmental Information Regulations 2004 (the “EIR”) under regulation 2(2)(c). Public authorities under regulation 2(2)(c) are “any other body or other person, that carries out functions of public administration”. As a result, any companies with licences for the supply and/or generation of gas and/or electricity should consider themselves at significant risk of being subject to the EIR.

Since the Upper Tribunal’s decision in Fish Legal in 2015, a group of water companies have been public authorities under regulation 2(2)(c). The wide-reaching implications of that decision for other privatised, regulated industries was recognised at the time. The last year has also seen the Information Commissioner advocate for extension of the information access regimes to more companies in the private sector (see, for example, her report titled “Outsourcing Oversight? The case for reforming access to information law”, which was laid before Parliament on 28 January 2019).

Last year, we wrote about the First-tier Tribunal’s (“FTT”) decision in Poplar Housing Association and Regeneration Community Association (“Poplar”) v Information Commissioner and Peoples Information Centre (EA/2018/0199), which provided some further clarity on when a private organisation may be considered a “public authority” for the purposes of regulation 2(2)(c) of the EIR. Poplar is a housing association and registered provider of social housing. The Information Commissioner had decided that Poplar was a public authority under regulation 2(2)(c) but the FTT disagreed. The FTT derived a test for determining this issue from Cross v Information Commissioner [2016] UKUT 153 (AAC) (“Cross“) in which the Upper Tribunal (“UT”) provided guidance on Fish Legal v Information Commissioner (C-279/12) [2014] QB 521 (“Fish Legal EU”), the Aarhus Convention, Directive 2003/4/EC and the EIR (see [94]). Poplar fell down at the “first hurdle” of the test, namely whether it had been “entrusted with the performance of services under a legal regime”. As explained in our previous note, the FTT found that 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”, which it found Poplar did not have: “We do not accept that the regulatory framework, even including the direct statutory regulation and the powers granted to registered providers, can be described as ‘a legal basis specifically defined in national legislation’”.

The FTT felt bound by previous case law, in particular Cross and Fish Legal EU, to reach this conclusion and made clear that it would have preferred to take a broader approach to regulation 2(2)(c). The Information Commissioner is currently appealing the FTT’s decision to the Upper Tribunal.

E.ON and HAL as “public authorities”

Poplar, and more so Cross as a decision of the Upper Tribunal, surprisingly do not feature in the Information Commissioner’s consideration of whether E.ON and HAL satisfied the first hurdle of regulation 2(2)(c), namely whether they were “entrusted by law with the performance of services in the public interest”. In both decision notices, the Information Commissioner interpreted this to mean that the body must be empowered with a relevant function under statute. There was no mention of any requirement for an explicit statutory delegation of power à la Poplar, which was the requirement that the FTT felt bound to follow as a result of Cross and Fish Legal EU.

In respect of E.ON, the Information Commissioner considered whether E.ON had any functions which might bring it within the scope of regulation 2(2)(c). The Information Commissioner noted that the Electricity Act 1989 and Gas Act 1986 made it an offence to carry out certain activities without being authorised by Ofgem under a licence. In light of this, the Information Commissioner considered that Ofgem was, in effect, entrusting licence holders with the performance of a public service when granting licences that related to the supply of either gas or electricity to consumers. As E.ON held an electricity supply licence, electricity generation licence and gas supply licence at the time of the EIR request, the Information Commissioner found that E.ON had been “entrusted with services under statute”. The Information Commissioner went on to find that E.ON satisfied two further limbs of the test, namely that E.ON’s performance of these services was in the public interest and that some of its services related to the environment. The final hurdle was whether E.ON was vested with “special powers” to perform at least one of its services that were in the public interest and it did not have to be those services that related to the environment. In this regard, the Information Commissioner relied on the FTT’s obiter comments in Poplar. For a power to be “special”, it simply had to be a power which is not available under private law. The Information Commissioner was satisfied that E.ON enjoyed a number of powers that met this description by virtue of its various licences.

As regards HAL, the Information Commissioner considered the “history” of the privatisation of Heathrow Airport to determine whether HAL’s operation of Heathrow Airport was entrusted to it by statute. The Commissioner found that there appeared to be a “direct and continuing link” between the original transfer of functions, powers and responsibilities from the British Airport Authority by way of the Airport Act 1986 to the private sector and ultimately to HAL. As it had in E.ON, the Information Commissioner went on to answer the questions of whether HAL performed its services in the public interest, whether any of its services related to the environment and whether it was vested with “special powers”, in the affirmative.

In both decision notices, the Information Commissioner concluded her analysis with carrying out a “cross-check” (a term coined in Cross and applied in Poplar) which entailed “standing back and looking at whether having conducted all the tests above, there is a sufficient connection between the functions of the body under examination and those which entities that organically are part of the administration or executive of the state do”. She was satisfied that the test had been met in both cases.

What happens next?

Each of E.ON and HAL can appeal the respective decisions to the FTT. E.ON had previously challenged an information notice that the Information Commissioner issued upon it (in connection with the EIR request in question) all the way up to the Upper Tribunal so an appeal to the FTT on this further decision may not be out of the question. These new decisions certainly underscore the importance for some clarity from the Upper Tribunal in its determination of the Poplar appeal (which was heard in February 2020).

In the meantime, companies operating in these sectors in similar circumstances should carefully consider the implications for their businesses and consider seeking advice on the EIR where necessary.