A recent Decision Notice by the Information Commissioner deals with the application of the Environmental Information Regulations 2004 (EIRs) to private companies and points to a potential shift in approach by the ICO.
The decision follows a complaint made to the ICO about a refusal by the energy company E.ON UK plc (E.ON) to respond to a request for information relating to an offshore wind farm made under the EIRs. The ICO disagreed with E.ON’s arguments and found that it was a public authority for the purposes of the EIRs.
The ICO's Decision
The ICO’s decision relates back to correspondence between the requester and E.ON from early 2017. The individual had sought a range of information related to fishing around the site of an offshore windfarm. Initially E.ON had advised that it was not a public authority and when the individual had asserted E.ON was, had not responded to further correspondence. A complaint was then made to the ICO. Determination of that complaint by the ICO was delayed for almost 2 years while E.ON appealed (unsuccessfully) to the Upper Tribunal against the ICO using its powers to require E.ON to make submissions on its status as a public authority. Notably, the Upper Tribunal’s decision discloses that the requester is a solicitor with Fish Legal, the organisation responsible for another important case about the application of EIRs which is discussed further below.
A number of points were taken into account by the ICO in determining that E.ON was a “body or other person, that carries out functions of public administration” and therefore a public authority for the purposes of regulation 2(2)(c) of the EIRs. Applying the guidance given by the Upper Tribunal in the earlier Fish Legal case, the ICO examined:
- Whether E.ON had been entrusted with the performance of services;
- Which were in the public interest;
- Whether those, among other things, were in the environmental field, and
- Whether it had, for this purpose, been vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
The fact that consent to develop the wind farm had been granted to a related company of E.ON under a statutory instrument was not sufficient to satisfy the “entrustment” criterion. But the ICO did consider that the regulatory framework established by the Electricity Act 1989 under which E.ON had been granted licences to allow it to (lawfully) supply and generate electricity was sufficient. The question of public interest was dealt with briefly by the ICO: “…the Commissioner is satisfied that the generation and supply of energy, whether that be gas or electricity, are activities of particular importance to the citizens and economy of the UK and can therefore be considered services performed in the public interest.”
In the context of the energy industry, the conclusions on the third issue – whether the activities were undertaken in the environmental field – are less controversial than the preceding two. Finally, in relation to special powers the ICO relied on E.ON’s powers under its licences to seek, subject to the authorisation of the Secretary of State, the compulsory acquisition of land and to apply for a warrant from the court to allow entries to premises to inspect meters or disconnect the supply.
The ICO’s decision ends with it undertaking the so-called cross check of whether there is sufficient connection between the functions of the body under examination and those undertaken by entities that organically are part of the administration or executive of the state. The ICO concludes that such a connection did indeed exist. Such reasoning is worth repeating here as it could equally apply to a range of institutions in regulated sectors including, given the not too distant past, banks and financial institutions.
When applying this cross-check the Commissioner has had regard for the particular importance of securing the generation and supply of energy to both individuals and the wider economy. This is reflected in the fact after the second world war both these industries were nationalised. They remained under state control until being re-privatised ... The Commissioner considers that although privatisation allows free market forces to encourage the efficient supply of energy, the high degree of regulation imposed upon energy generators and suppliers clearly demonstrates the state’s interest in ensuring the provision of gas and electricity. The Commissioner is satisfied that the supply of gas and electricity is of such importance that if their supply could not be secured through the private sector, the state would be compelled to step in.”
A broader context for this decision
It is particularly interesting to consider this decision in the context of the key messages put forwards by the Information Commissioner, Elizabeth Denham in her speech at the Parliamentary Internet, Communication and Technology Forum early last year. In that speech Ms Denham called for reform to expand the bodies subject to the EIRs and the Freedom of Information Act 2000 (FOI), noting that:
…FOI, and its subsequent sister law the [EIRs], no longer achieve what they were designed to do. That’s because the world has changed. And the law has not kept up. Modern public services are delivered in many ways by many organisations… they are not always subject to the scrutiny provided by FOI.”
The changes which the Commissioner called for have yet to be taken forwards. It will be interesting to see whether this decision marks the start of a shift in approach by the Commissioner, towards an expanded scope to the EIRs through individual decisions in lieu of legislative change.
Implications and possible next steps
The conclusion on the “entrustment” criterion has the potential to significantly expand the number of bodies subject to the EIR. If the ICO’s decision on this is correct and subject to the other conditions being satisfied, bodies operating in a range of regulated sectors may be at risk. Clearly there are direct implications for energy suppliers but this decision may also be relevant to others such as financial institutions.
The ICO’s decision on this point certainly appears difficult at first glance to reconcile with a recent decision reached by the First Tier Tribunal in Poplar, a case involving a housing association and which is referred to in the ICO’s decision notice. The Tribunal said in that case that: “[e]lecting to register with the Regulator cannot be an entrustment”. This, along with the conclusions on “public interest” which also appear at odds with the views expressed in Poplar, seem particularly likely to be considered in any appeal. Given the earlier history of this case, it seems fairly likely such an appeal will follow.
Notwithstanding the possibility of appeal, the circumstances of the case provide a useful reminder of the need for companies to review their status under the EIRs and to put in place systems for dealing with potential requests.
About the authors
Mark Mills is an Associate on secondment from Ofgem in our Public Law team. He has provided advice on a wide range of contentious and non-contentious administrative, regulatory and public law matters.