April 24

Erin Ferguson: Public Authorities and Access to Environmental Information: The Legacy of Fish Legal

In February 2019, the First-tier Tribunal (General Regulatory Chamber, Information Rights) found that Poplar Housing and Regeneration Community Association Ltd (‘Poplar’) is not a public authority for the purposes of the Environmental Information Regulations 2004 (EIR), substituting an August 2018 decision by the Information Commissioner.

The EIR allow the public to access environmental information held by public authorities, thereby supporting transparency and public participation in environmental decision-making. The EIR define ‘public authorities’ broadly to include bodies that perform ‘functions of public administration.’ However, determining what these functions are has been complicated. The Court of Justice of the European Union (CJEU) provided some clarification in its consideration of Fish Legal v Information Commissioner [2015] UKUT 52 (AAC), which found that private water companies in England and Wales are public authorities for EIR purposes.

The appeal to the First-tier Tribunal concerned two issues. The primary issue was whether Poplar is a public authority within the meaning of the EIR. The secondary issue was whether the requested information was environmental information. This post will focus on the first issue, in order to examine the implications of the tests set out by the CJEU in Fish Legal for our understanding of ‘public authorities’ and ‘functions of public administration’ under the EIR.

Background

Poplar is a private company that owns and manages approximately 9,000 homes in east London. It was set up in 1998 by the London Borough of Tower Hamlets to transfer its housing stock and is now registered with the Homes and Communities Association (HCA) as a registered provider of social housing.

In February 2018, the complainant wrote to Poplar to request information relating to the redevelopment of property owned by Poplar. After Poplar overlooked the request and failed to respond, the complainant contacted the Information Commissioner to complain about the way his request had been handled.

The Commissioner decided that Poplar was a public authority under Regulation 2(2)(c) as it carries out functions of public administration and is therefore responsible for complying with information requests under the EIR. In making this decision, the Commissioner relied on the definition of public authorities set out by the Grand Chamber of the Court of Justice of the European Union (CJEU) in Fish Legal (para 52):

‘…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.’

The definition is based on interpretation of the Aarhus Convention Implementation Guide and Directive 2003/4/EC, which has been transposed in UK law by the EIR.

 

The Appeal to the First-tier Tribunal

Poplar appealed against the decision on the grounds that (1) the provision of the social housing is not a function of public administration and (2) it does not have ‘special powers.’ Though Poplar does have the power to apply to the County Council for land acquisition and the power to apply for injunctions not available to private landlords, counsel for the appellant argued that this does not confer an advantage not available under private law.

In accordance with Fish Legal and its subsequent interpretation in Cross v Information Commissioner and the Cabinet Office [2016] UKUT 153 (AAC) (which concerned the question of whether the Royal Household is a public authority for EIR purposes), the Tribunal asked three questions in considering whether Poplar carries out function of public administration: (1) Has poplar been entrusted with the performance of services under a legal regime? (2) Are those services of public interest? (3) Has it, for the purpose of performing those services, been vested with special powers?

The Tribunal concluded that Poplar has not been entrusted to perform functions of public administration. It did not accept that the regulatory framework could be described as ‘a legal basis specifically defined in national legislation,’ which was the approach adopted by the Upper Tribunal in Cross. The judgment explained that the Tribunal was bound by the decisions in Fish Legal and Cross, but, had it not been, would have taken a broader approach in identifying ‘entrustment by a legal regime.’

Analysis

This decision has significant implications for access to information held by private contractors or other bodies contracted to provide public services on behalf of the state. The narrow interpretation of ‘under national law’ means that these bodies, though taking the place of the state in carrying out services of public interest, will fall outwith the scope of the EIR.  As the Tribunal recognised, this restricts access to environmental information held by contractors, which appears to be at odds with the apparently broad approach to coverage intended in the EIR.

However, the Tribunal clarified the question of whether ‘special powers’ have to be environmental in nature. The Tribunal explained that had they found that Poplar had been entrusted with the task of providing social housing, they would have also found that did exercise special powers. It has the right to apply for orders that are not normally available under private law, a power that enables it to carry out its public interest tasks.

Contrary to the appellant’s argument, the Tribunal concluded that the ‘special powers’ do not have to be environmental. The special powers must have been given to the body for the purpose of carrying out its public interest task, and the public interest task must be related to the environment. However, this does not mean that there is any requirement for the special powers to have been provided for the purpose of carrying out functions related to the environment. Such an approach would be unnecessarily restrictive and place an additional limitation on the definition of ‘public authorities.’

Finally, it is worth noting the divergent approaches being taken with regards to access to information laws in Scotland, compared with the rest of the UK. Since 2015, registered social landlords (RSLs) in Scotland have been subject to the Environmental Information (Scotland) Regulations 2004. And, from November 2019, the Freedom of Information (Scotland) Act 2002 will apply to RSLs. This reflects a growing chasm between the application of access to information legislation in Scotland and the rest of the UK, with an apparently greater willingness to extend the coverage of Scotland’s information access laws to private providers of public services.


Erin Ferguson is a PhD Researcher and Tutor at the University of Strathclyde Law School.