Privatised water companies and Environmental Information Regulations: some clarity at last

One of the longest running debates about the interpretation of the Environmental Information Regulations (“EIRs”) is the extent to which they can apply to private bodies. A recent decision brings some clarity to the issue.

23rd March 2015

One of the longest running debates about the interpretation of the Environmental Information Regulations (“EIRs”) is the extent to which they can apply to private bodies.  EIRs provide a statutory right of access to environmental information held by UK public authorities and sit alongside the Freedom of Information (FOI) regimes which also came into force throughout the UK on 1 January 2005.  The question of who is required to respond to a request for environmental information is one area where the EIR regime diverges from the FOI regime.  Under FOI only designated public bodies are required to respond to requests for information.  The ambit of the EIRs is potentially wider with the obligation to respond to requests for information also falling on bodies which carry out public administration functions or which are under the control of public authorities and which have responsibilities or functions or provide services relating to the environment.

The Administrative Appeals Chamber of the Upper Tribunal (UT) has this week ruled on the question of whether or not privatised water companies constitute ‘public authorities’ for the purposes of the EIRs.  This decision takes account of the judgement of the European Court of Justice issued on 19 December 2013 following a referral from the UT.

The case involved separate requests for information made by Fish Legal to Yorkshire Water Services Limited and United Utilities Water plc and Emily Shirley to Southern Water Services Limited.  The Information Commissioner had originally held that the information should be provided on the basis that the three companies were public authorities for the purposes of the EIRs and this had been appealed by the companies.  All three respondent companies had originally denied they were under a duty to provide information under the EIRs, arguing that they were not a ‘public authority’.

The Judge held that companies which provide public services relating to the environment are under the control of a body or person covered by the EIRs (and therefore themselves subject to the EIRs), if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by the EIRs is in a position to exert decisive influence on their action in the environmental field.  The UT did point out though that “no legitimate business has complete freedom of action.  All businesses are constrained by the law, by competition and market forces, and by the realities of business life.”  In conclusion the UT held that “the control test is a demanding one that few commercial enterprises will satisfy”.

The UT also looked at whether the water companies were a legal person performing ‘public administrative functions’ under national law.

The UT stated that in order for the water companies to be classified as legal persons which perform ‘public administrative functions’ it is necessary to examine whether those companies are vested under the national law which is applicable to them, “with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”.

The UT ultimately held that the water companies were public authorities as a result of their special powers relating to public administration and not because they were under the control of a public authority.

Although this decision provides a determinative position for privatised water companies it is difficult to see general guidance for other similar privates bodies such as energy companies and telecoms providers.  Such bodies will also have to look in detail at whether or not they are “genuinely autonomous” or have the requisite “special powers” in relation to public administration.