Keywords: access to environmental information, Aarhus Convention, public authorities, private companies
The case of Smartsource Drainage & Water Reports Ltd v Information Commissioner is an important case which adjudicates on the application of the Environmental Information Regulations 2004 ('the Regulations')1 to private companies performing a public function. It considers whether such companies are 'public authorities' under regulations 2(2)(c) and 2(2)(d) of the Regulations.
The appellants had requested information from 16 water companies under the Regu¬lations, which the water companies had partially responded to. While the companies disclosed some of the information requested, the remaining information was withheld on the basis that, as they were not public bodies under the Regulations, they were under no obligation to disclose this information. The appellants perceived the water companies to be either bodies fulfilling a public function or bodies under the control of a public authority having functions related to the environment and asked the Information Com-missioner to rule that they were public authorities under the Regulations and, therefore, obliged to supply the information requested. The Information Commissioner, however, replied, by letter, stating that he did not have jurisdiction to adjudicate on the issue. He stated that he had concluded that the water companies were not public authorities and were therefore outside the scope of the Regulations. The appellants appealed to the Upper Tribunal. The significance of this case stems from the Upper Tribunals decision that the water companies were not defined as 'public authorities' under the scope of the Regulations. This effectively places the environmental information that such companies hold beyond public access.2 This contradicts the concept of the open 'participative society'3 ideal which is currently finding favour within international law4 and national governance.5 However, one possibility is that this contradiction may be remedied through the use of corporate social responsibility measures.6
DECISION OF THE UPPER TRIBUNAL
Within the Regulations the definition of'public authority' is found in Regulation 2(2). The Regulations defines public authorities as:
(a) government departments;
(b) any other public authority as defined in section 3(1) of the Act, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding—
- (i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or
- (ii) any person designated by Order under section 5 of the Act;
(c) any other body or other person, that carries out functions of public administration; or
(d) any other body or other person, that is under the control of a person falling within sub¬paragraphs (a), (b) or (c) and—
- (i) has public responsibilities relating to the environment;
- (ii) exercises functions of a public nature relating to the environment; or
- (iii) provides public services relating to the environment.
As the Regulations were introduced as a means to comply with the obligations imposed on the United Kingdom by the Aarhus Convention,7 it is important to take into account the Conventions aims when interpreting them. For the purpose of the Smart source case it was clear that the private water companies did not constitute government departments and were not defined as public authorities under the Freedom of Information Act 2000. They did not fall under either regulation 2(2)(a) or 2(2)(b). As such, the Upper Tribunal was asked to determine whether the water companies came within regulation 2(2)(c) or 2(2)(d). The question was, therefore, whether they carried out a function of public administration or if they were under the control of a public authority while carrying out public responsibilities, exercising functions of a public nature or providing public services relating to the environment. If the answer was in the affirmative, the water companies would be defined as public authorities and would be obliged to provide information if requested under the Regulations.