In a recent decision, the UK Information Commissioner gave useful guidance on what constitutes a public authority for the purposes of the Environmental Information Regulations 2004 ("the EIRs"). As the definition of a public authority is wider under the EIRs than under Freedom of Information legislation, it is important for bodies to be aware that, while they may not be subject to Freedom of Information obligations, they may nonetheless be under an obligation to disclose environmental information under the EIRs.
The Commissioner's decision concerned a request for documents relating to an environmental impact assessment and the ensuing report. The request was made to an environmental consultancy, Environmental Resources Management Ltd ("ERM"), who carried out the assessment. ERM considered that it was not a public authority and did not therefore need to comply with a request for information under the EIRs. This approach was, in fact, consistent with advice previously given to ERM by the Information Commissioner.
However, in the particular circumstances of this case, the Information Commissioner found that ERM were in fact a public authority. This was because ERM had provided the environmental assessment and report on the instructions of the Regional Assembly for the North East of England, who were required to carry out, or to have carried out, such assessments by an EC directive that had been transposed into UK law. ERM was thus carrying out functions of a public nature, and were effectively under the control of a public body since it was the Regional Assembly that had delegated its functions to ERM. As a result, ERM were subject to the EIRs.
ERM would not have been subject to the Freedom of Information Act 2000 in the same circumstances, as that Act covers only the finite number of public bodies specifically listed in a Schedule to the Act and companies wholly owned by such bodies. The EIRs on the other hand apply to most bodies covered by the Act, plus any other body that carries out functions of public administration, or is under the control of a public body and carries out public functions, provides public services or has public responsibilities, relating to the environment.
This case clearly shows that an organisation can be a public body for the purposes of the EIRs with regard to certain information it holds, but not with regard to the remainder. Where a private company such as ERM carries out a public function, such as the environmental assessment delegated to it by the Regional Assembly, it will not be a public body overall, but any information held which relates to the exercise of that public function will be subject to disclosure under the EIRs. The Information Commissioner emphasised that public authorities should not be able to evade their legal responsibilities, such as the duty to provide information, by contracting out their services or functions.