Tribunal considers what constitutes a public authority under the Environmental Information Regulations 2004

The First-tier Tribunal ("FTT") has overturned a decision by the Information Commissioner (the "Commissioner") in finding that Heathrow Airport Ltd ("HAL") is not a public authority for the purposes of the Environmental Information Regulations 2004 (the "EIR"), in Heathrow Airport Limited v Information Commissioner, EA/2020/0101.

Key Points:

• A dual test is applied when determining whether an entity is a public authority for the purposes of regulation 2(2)(c) of the EIR, namely a body which carries out functions of public administration.
• First, there must be a discrete legislative or executive measure by which a legal person is empowered or entrusted by the state to act on its behalf, and secondly the entity must have been vested with special powers beyond those normally applicable in private law.
• Once the dual test has been considered, a "cross-check" is applied to consider whether the entity is in fact a functional public authority.

Background

HAL received a request for information under the EIR. HAL responded that it was not a public authority for the purposes of the EIR and so was not obliged to respond to the request.

On appeal to the Commissioner, she concluded that HAL was a public authority for the purposes of regulation 2(2)(c) of the EIR. Public authorities under regulation 2(2)(c) are “any other body or other person, that carries out functions of public administration”. The Commissioner found that there was a “direct and continuing link” between the original transfer of functions, powers and responsibilities from the British Airports Authority by way of the Airports Act 1986 ("the Act") to the private sector and ultimately to HAL.

HAL appealed against the Commissioner's decision to the FTT.

Judgment

The FTT held that when determining whether an entity is a public authority for the purposes of regulation 2(2)(c) of the EIR, a dual test is applied. First, there must be a discrete legislative or executive measure by which a legal person is empowered or 'entrusted' by the state to act on its behalf, and secondly the entity must have been vested with special powers beyond those normally applicable in private law.

In respect of the first limb of the test, the FTT concluded that the powers in the Act were of a limited nature and expressed in terms of facilitating the operation of the airport. There was not an equivalent provision to section 6 of the Water Industry Act 1991, which was considered by the Upper Tribunal in Fish Legal v Information Commissioner [2014] UKUT 52, where a group of water companies were held to be public authorities under regulation 2(2)(c).

The FTT held that HAL is not a functional public authority but a commercial enterprise operating in a market, seeking to make a profit for its shareholders in competition with other businesses of a similar nature. There was no instrument by which HAL had been made responsible by the state to act on its behalf to perform a service of public interest. Accordingly, there had not been an entrustment.

In respect of the second limb of the dual test, the FTT found that although HAL had a number of special powers in relation to the compulsory acquisition of land and the making of byelaws, this also did not amount to entrustment. The fact that the provision of airport facilities was at one time a function of the state did not attract significant weight.

The FTT noted that even if HAL had been vested with special powers for the purpose of performing public interest services, it would not consider it a public authority after applying a "cross-check" to consider whether the entity is in fact a functional public authority. The FTT considered that HAL is a commercial business operating for a profit and for the benefit of its shareholders. While Heathrow airport is a crucial part of the national infrastructure and has to comply with a complex legislative and regulatory framework, it does not follow that it is an organic part of what the state does.

Comment

The FTT's judgment reiterates the dual test for determining what is a public authority under regulation 2(2)(c) of the EIR, derived from two previous Upper Tribunal decisions in Fish Legal and Cross v Information Commissioner [2016] UKUT 153. It provides clarity on the distinctive nature of each limb, confirming that entrustment and special powers are conceptually different. A separate finding of entrustment will need to be established if an entity is to be considered a public authority for the purposes of the EIR. This may signal the reversal of a trend in recent years of the expansion of what is a "public authority" for the purposes of the EIR.

The Information Commissioner may appeal this decision to the Upper Tribunal.