Quite like a whale

February 24th, 2015 by Peter Lockley

As my colleague Robin Hopkins has warned, the decision of the Upper Tribunal in Fish Legal looks like a pretty big beast: sixty pages on whether water companies are public authorities for the purposes of the Environmental Information Regulations, applying the CJEU’s lengthy ruling on the points of principle (for which, see this post by Chris Knight).

(If you just need the quick answer: yes they are, by virtue of having ‘special powers’, but not by virtue of being under the control of a public body. For the detail, read on.)

In fact, while it could never be classed as a minnow, on closer inspection Fish Legal is not the monster it first seems (see Part 1 of the judgment here and Part 2 here). Fifteen of those sixty pages are appendices. More importantly, the decision poses, but declines to answer, some wider questions. Although Mr Justice Charles was sympathetic to the Information Commissioner’s request for guidance on how to identify a public authority, he stopped short of laying down ‘broad general principles’ on the question (paras.95-97). He gave shorter shrift to the water companies’ request that he list all of their powers which fell within the definition of ‘special powers’– a request made, apparently, with a view to lobbying Parliament to rid the companies of those powers, and so save them from the burden of EIR (para.98).

And one would hardly have expected him to address the question with the widest ramifications: if water companies are public authorities by virtue of their “special powers”, what of the various other privatised industries? It is, of course, a very fact specific analysis. Anxious electricity chiefs, rail bosses, and telecoms honchos will just have to read the judgment and consider how the ‘special powers’ and ‘control’ tests would apply to their own particular circumstances (see para. 110).



The UT had two issues before it: (i) whether the Information Commissioner had jurisdiction to decide whether a body was a public authority for the purposes of the EIR or FOIA (as he had purported to do), and therefore whether the UT itself had jurisdiction to hear the case, and (ii) whether privatised water companies in England and Wales are public authorities for the purposes of EIR, applying the principles set down by the CJEU following a referral from the UT (blog post here).

By the time of this, the second outing before the UT, the cast list had expanded significantly, bringing in several 11KBW counsel to join Anya Proops, who acted for the Information Commissioner before the CJEU. The Secretary of State was joined as a party and was represented by Julian Milford. The parties in two related cases, Cross v IC and the Cabinet Office and Bruton v IC and Duchy of Cornwall, were also invited to make submissions on the nature of the tests. Karen Steyn QC and Joseph Barrett appeared for Mr Bruton; Amy Rogers appeared for the Duchy. (Those cases will now go forward to be decided applying the Fish Legal principles.)


The jurisdiction issue

The Secretary of State argued that under s.57 FOIA, the First-Tier Tribunal only has jurisdiction over a decision notice issued by the Commissioner under s.50(3)(b) FOIA, and that the Commissioner had no jurisdiction to serve a decision notice on the issue of whether a body is a public authority. Section 50 is based on the premise that a request has been made to a public authority; these elements are anterior to the Commissioner’s jurisdiction and he has no authority to decide them within the framework of FOIA.

The UT rejected these arguments. It took the view that jurisdictional provisions are routinely based on certain assumed conditions, but this does not deprive the body in question of the jurisdiction to decide whether those conditions have been met. So the UT’s jurisdiction to hear an appeal on any point of law arising from a decision made by the FTT assumes that a decision has been properly made by a properly-constituted tribunal, but it does not mean that the UT cannot rule on whether those conditions are met in a given appeal (para 31).

The UT applied this reasoning to both a positive decision by the Commissioner that a body is a public authority, and a negative decision that it is not, even though the latter is not a decision notice under s.50(3) FOIA. To hold otherwise would mean that while a body could appeal against a positive decision, a requester would face the more expensive route of judicial review of a negative decision (para.37). Furthermore, the Commissioner would have no power under the similarly structured s.51 FOIA to require the information he needed to reach an informed decision that a body was not a public authority (para. 41).

After scrutinising the decision of the House of Lords in BBC v Sugar [2009] 1 WLR 430, the UT decided that there was nothing in the case that disturbed its conclusions on the point (paras.43-54).

The Commissioner therefore has jurisdiction to decide the issue, the FTT to hear appeals against his decisions and the UT to hear appeals against the decisions of the FTT.

The public authority issue

Two of the limbs of the definition of ‘public authority’ under the EIR were in issue. A finding that the companies fell within either would suffice to make them public authorities. (A little care is needed with the numbers of the provisions in question: Article 2(2)(b) of the Environmental Information Directive is transposed as Reg. 2(2)(c) of the EIR, and Article 2(2)(c) of the Directive as Reg. 2(2)(d) of the EIR.)


Persons performing public administrative functions – the ‘special powers’ test

The CJEU expanded on Art. 2(2)(b) of the Directive by explaining that persons ‘performing public administrative functions’ are

52 […] entities, be they 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.

Only the parts underlined were in dispute in the case of the water companies, which clearly meet the rest of the test.

The UT declined to draw any conclusion from the fact that the CJEU had not seen fit to apply the principles to the facts of this case (paras. 99-100). It also rejected a suggestion that it should ask itself whether the companies’ powers were in the nature of State powers (as the Advocate General had suggested). That was because the definition of ‘State powers’ was unclear and ever-changing, and also because the CJEU had not adopted that test. In the end, however, the UT did adopt the State powers test ‘as a check’ – leaving the status of the test somewhat unclear (paras.113-117).

The main analysis focussed on the following powers of water companies:

Compulsory Purchase (under s.155 of the Water Industry Act 1991, “WIA”): this looks like a quintessential government power unavailable to ordinary citizens, but in fact the water companies enjoy the power at one remove: before exercising it they require authorisation by the Secretary of State, which they can apply for via a process set out in Schedule 11 to the WIA. Nonetheless, the provisions conferred a real, practical advantage on the water companies. Firstly, the application process afforded them privileged access to those advising the Secretary of State on whether to authorise a compulsory purchase. Secondly, it conferred significant commercial leverage on the companies in any negotiation to purchase land, even if they rarely resorted to it in practice (para 107).

Power to make byelaws (s.157 WIA): such byelaws  require confirmation from the Secretary of State, but as with compulsory purchase, the power still confers an advantage on the companies. The section confers power beyond that of any private landowner, since byelaws under s.157 can be backed by criminal sanctions, unlike a landowner’s licence. ‘Special powers’ extends to ‘special powers of enforcement’ (para. 110).

Power to lay pipes (s.159 WIA): this power was the subject of a detailed comparison with the powers ordinarily available under private law. The companies argued that the same powers could be acquired through a license or easement. While accepting that this was potentially so, the UT emphasised that private law typically requires consent of the parties to achieve such a result (through the law of contract or property). By contrast, the WIA gives the water companies effective power to compel this result (para.121).

Power to enter land (s.168 WIA): although there are powers within private law allowing entry to another’s land (eg self-help to abate a nuisance at common law), they are narrowly circumscribed (eg they require possession of neighbouring land). The water companies’ powers are both wider and deeper: they apply against any landowner in the company’s area of license, and they extend to surveying and even boring on the land (para.125).

Hosepipe bans (ss.76-76C WIA): these powers are unlike anything available at private law, and moreover are backed by criminal sanctions.

Since it was content that the companies enjoyed a cluster of special powers, the UT formally left open the question of whether one would have been enough (see para. 105). However its comment in conclusion that the powers mentioned were ‘sufficient, collectively in themselves and as examples of powers of the same type’ to meet the test (para. 130) suggests that some pattern of powers will probably be necessary before a body is considered a public authority.


Persons under the control of public authorities

The CJEU’s elaboration of Article 2(2)(c) set out the test for ‘control’ in the following terms:

68 […] this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.

The test applies to the manner in which functions are performed, not the functions themselves: a body is not under control of the Government merely because its powers derive from statute (para. 133). There are two elements to the test: the body must (i) operate in fact in a non-autonomous manner, and (ii) do so because a public authority is in a position to control it (para. 134). In other words, although the public authority need not actually be exercising its powers of control, the existence of the powers must have a real constraining effect on the body in question (para.135). Furthermore, the test required the UT to look at the companies’ overall manner of performing their environmental services: it would not be enough to find control in ‘one or two marginal aspects of their business’ (para. 136).

As for prior authorities, Smartsource was simply no longer relevant: the task of the UT was to consider the issue afresh in the light of the CJEU’s ruling (para.137).

The UT was at pains to point out that ‘no legitimate business has complete freedom of action’: all operate in a framework of legal and commercial constraints. Something more is needed before one can say that they have lost their autonomy (paras 142-144).

The two counsel for the requesting parties sought to supply that ‘something more’ by advancing ‘macro’ and ‘micro’ examples of actual state intervention in the water industry: recommendations by the Secretary of State made on reviewing a Draft Water Resources Management Plan, and an enforcement notice issued by OFWAT in respect of the risk of sewer flooding in the Penketh area. These were dismissed as no more than ‘increased intensity of oversight at particular times and in respect of particular activities’ (para.148).

A list of potential interventions was also provided – an analysis of the Secretary of State’s powers under the WIA. Although these clearly put the Secretary of State ‘in a position to exert decisive influence’ over the water companies’ actions, they too were rejected as not demonstrating control. The UT’s first two reasons are a little puzzling. The first was that the powers are (to some extent) a substitute for the forces of competition, since water companies enjoy local monopolies (para. 151). This rather begs the question: the grant of a monopoly confers great power on a private entity, which needs to be limited in the public interest. Just because state control is a substitute for market forces, this does not stop it from being a form of control. The second reason was that ‘the risk of enforcement is at most only a marginal consideration for a reputable company’ (para.152). Really? Why then did OFWAT need to issue that enforcement notice for the Penketh sewers?

However, the UT went on to find that whatever the potential for intervention, the more basic aspect of the control test was not satisfied. Merely listing all the possible interventions distorted the picture of how the companies operate in fact, and only addressed the second element of the test. The UT’s overall conclusion on the control test was that ‘despite the extent to which there is scope to influence the companies’ decision-making on the way it delivers its services, the evidence does not show that that influence is actually exerted to such an extent that overall the companies lack genuine autonomy (para.153).

You might not have predicted this result if you had read the CJEU’s heavy hint on the question of control – see [71] of its judgment

The weight that the UT afforded to the companies’ status as ordinary private companies is one of the surprises of the judgment. And it will be one of the few points of comfort for other privatised utilities. Not many can be as heavily regulated as the water industry; perhaps they too can avoid at least this limb of the definition.


POSTSCRIPT: if you’ve come here from Robin’s post, you may be wondering what Lewis Carroll has to do with all this. Loyal reader (which you must be if you’ve got this far), your guess is as good as mine. Why is the section on the State powers test (paras. 113-117) headed ‘Hunting of the Snark’? Answers on an e-postcard please.


 Peter Lockley





November 7th, 2011 by Robin Hopkins

The Freedom of Information (Designation as Public Authorities) Order 2011 came into force on 1st November 2011. It brings the following three public authorities within the scope of FOIA: the Associaton of Chief Police Officers of England, Wales and Northern Ireland (ACPO); the Financial Ombudsman Service and the Universities and Colleges Admissions Service (UCAS).


November 4th, 2011 by Rachel Kamm

Further to Robin Hopkin’s post this morning, here is a summary of the First-Tier Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182).

Mr Bruton had requested environmental information from the Duchy of Cornwall, concerning the conservation of an area designated under the Habitats Directive 92/43/EEC which lies within the Ducy. The Duchy refused the request on ground that it was not a public authority for the purposes of the Environmental Information Regulations 2004 (“the EIRs”).

The statutory framework

Under regulation 2 of the EIRs:

(2) Subject to paragraph (3), “public authority” means -

(a) government departments;

(b) any other public authority as defined in section 3(1) of the Act Freedom of Information Act 2000, 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.

The EIRs of course implement Directive 2003/4/EC of 23 January 2003 on public access to environmental information (“the Directive”). This provides that:

2. ‘Public authority’ shall mean:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.

The Tribunal also took into account the definition of a public authority for the purposes of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters.

The issues

The Tribunal was mindful that the concept of public authority that pertains in relation to the public’s right of access to environmental information as deployed in the Directive must be construed having regard to the wider scheme of EU environmental law, in particular the Habitats Directive (paragraphs 20-21).

It identified at paragraph 32 that the questions to be decided were:

a) Whether the Duchy was a body or other person, and

b) If so, whether it carried out functions of public administration, or

c) Whether the Duchy was under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of a public nature relating to the environment, or provides public services relating to the environment.

Whether the Duchy was a body or other person

On the first issue, the Tribunal considered detailed evidence about the Duchy, which makes for an interesting (if esoteric) read. It concluded that, “whatever the basis of the Duchy under the 1337 Charter, we find that the Duchy is now a body or other legal person. Taking into account all the above evidence and other statutory provisions, the practices of the Duchy and the way it has presented itself to the world including Parliament, the differentiation of the Duchy and Duke in commercial and tax matters as well as under legislation and the contractual behaviour of the Duchy, we are led to the conclusion that the Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the EIR” (paragraph 57).

Whether it carried out functions of public administration

The Tribunal described the Upper Tribunal decision in  Smartsource v IC and others [2010] UKUT 415 (AC) as “very relevant” here (paragraph 58). It found that Smartsource meant that “a body which carries out functions of public administration will not be a public authority for the purpose of the EIR if those functions are on the whole secondary functions which are related to and flow from primary functions which are not functions of public administration. But where the functions of public administration are separate self standing functions which do not flow from or depend on the main activity of the body, they are not “ancillary” in Smartsource terms and the body may be a public authority for the purpose of the EIR” (paragraph 63). Note that this aspect of the decision may well not be the final word on this topic. The Upper Tribunal is due to hear an appeal in Fish Legal and Shirley v IC and United Utilities Water plc and others (GIA/0979 & 0980/2011) in January 2012, which will include consideration of  the Upper Tribunal’s decision in Smartsource v IC and others [2010] UKUT 415 (AC).

Applying this test in the case of the Duchy, the Tribunal found that its primary function (according to its 2010/11 Annual Report) was to provide an income for present and future Dukes and that the Duchy’s principal activity to generate this income was the commercial management of its lands and properties (paragraph 64).

The Tribunal found (after a further lengthy esoteric discussion) that it was also a Statutory Harbour Authority (paragraph 87).  As such, it was a relevant authority and a competent authority for the purposes of the Habitat Directive and the Conservation of Habitats and Species Regulations 2010 (paragraph 97). The judgment records (without expressly endorsing) the argument of the Appellant that “it would be entirely contrary to the aims of the Aarhus Convention, the Directive and the EIR if a body which is a ‘relevant authority’ for the purposes of what the European Commission has stated is “the cornerstone of Europe’s nature conservation policy” (alongside the Birds Directive) was not subject to the European access to environmental information regime” (paragraph 92).

The Tribunal applied the multifactorial approach in Smartsource to the Duchy’s activities as a Statutory Harbour Authority and concluded that “the preponderance of factors point to the Duchy carrying out functions of public administration. This conclusion does not mean that we consider all Statutory HAs will necessarily be public authorities under the EIR. It depends on the facts in each case” (paragraph 99).  (In the alternative, it found that the Duke was the Statutory HA (paragraph 100).) It further concluded that these functions were not ancillary to the Duchy’s primary business (paragraph 101).

Where have we got to so far?

At this point of the judgment, the Tribunal helpfully summarises its conclusions as follows (paragraph 102):

“So far we have found that:

i) The Duchy is a body or other person;

ii) The Duchy is a Statutory HA;

iii) Statutory HAs are ‘relevant authorities’ and likely ‘competent authorities’ under the UK regulations implementing the Habitat Directive;

iv) The Aarhus Convention requires the Directive to be read purposively so as to cover information requests relating to the EU environmental regime as a whole;

v) Statutory HAs carry out functions of public administration;

vi) Therefore the Duchy is a public authority under reg 2(2)(c);

vii) Even if the Duchy is not the Statutory HA, the Duke is;

viii) The present Duke manages and controls the Duchy;

ix) Then the Duchy is a public authority under reg 2(2)(d).”

The most interesting point here is that the Tribunal accepts the Appellant’s argument (which was not expressly endorsed at paragraph 92, as discussed above) that the Directive has to be read so as to cover information requests relating to the EU environmental regime as a whole. Does this mean that any competent authority for the purposes of the Habitats Directive and/or other environmental directives must be a public authority for the purposes of the EIRs?


Having reached the above findings, the Tribunal found that it did not need to go any further. The fact that the Duchy was a public authority for the purpose of the EIRs in its capacity as a Statutory Harbour Authority meant that it was a public authority for the purposes of the EIR generally (paragraph 103).

The Tribunal did go on to comment on two other factors which it considered also pointed towards the Duchy being a public authority that was subject to the EIRs. These factors were that the Duchy provided an income for the Price of Wales in his constitutional capacity to undertake public services and that it enjoys a statutory right to bona vacantia.

The decision only applies to public authorities for the purposes of the EIR and not also FOIA. However, as discussed in previous posts (e.g. here) the definition of environmental information is wide.


November 4th, 2011 by Robin Hopkins

The Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182) was published yesterday. The issue was whether the Duchy is a “public authority” for the purposes of the Environmental Information Regulations 2004. The Tribunal decided that it is. 11KBW’s Karen Steyn and Joseph Barrett appeared for the Appellant, Amy Rogers (led by Jonathan Crow QC) appeared for the Duchy and Attorney General, and I appeared for the Information Commissioner. Panopticon will provide some analysis of the decision shortly – but in the meantime, there has been considerable press coverage: see for example here and here.

Robin Hopkins


January 7th, 2011 by Anya Proops

The Ministry of Justice has today unveiled plans to extend the scope of FOIA, including plans to expand the number and type of bodies which are subject to FOIA. New authorities falling within the ambit of FOIA will include the Association of Chief Police Officers, the Financial Services Ombudsman, UCAS and all companies wholly owned by more than one public authority. The MOJ also intends to consult on bringing a range of further bodies which are believed to perform public functions within the scope of FOIA, including for example: Examination Boards, Harbour Authorities, the Local Government Association and NHS Federation. The Bar Council and the Law Society are also apparently identified as possible candidates for inclusion. There are also plans to make most public records available at the National Archives after 20 years (rather than the current arrangements where access is not permitted until after 30 years). The Justice Minister Lord McNally has confirmed that the Government intends to carry out a ‘full review of the FOI Act to ensure it is still operating in the most effective way’. In practical terms, it is intended that inclusion of new authorities such as ACPO and the FS Ombudsman to FOIA will be achieved via a Freedom Bill to be introduced by February 2011. See further the MOJ’s Press Release here.


January 7th, 2011 by Robin Hopkins

This morning’s speech by Nick Clegg on civil liberties had much to say about FOIA and access to information more broadly.

The Deputy Prime Minister said that the progress in transparency brought about by the introduction of FOIA has stalled: FOIA, he said “was a good start, but it was only a start. Exceptions remain far too common. And the available information is too often placed behind tedious bureaucratic hurdles.”

He hailed the Treasury’s COINS database, which details public services expenditure, the work of The Open Knowledge Foundation in processing that data for ready public consumption, and the Cabinet Office’s new transparency rules concerning the publication of spending figures by Whitehall departments (the Cabinet Office’s website explains its work on transparency).

He advertised the government’s plans for a Public Data Corporation, which will “bring existing government bodies together into one organisation, responsible for disseminating a wealth of data” (on which, see The Guardian‘s article here).

FOIA’s scope is to be extended “to cover potentially hundreds more bodies; including UCAS, the Association of Chief Police Officers, the Financial Ombudsman Service and many more”. A complete list has yet to be announced. The government does not, it appears, intend to make bodies such as water utility companies or Network Rail subject to FOIA.

Nor, it appears, will the Secretary of State’s right of veto over Tribunal decisions be repealed.

The 30-year rule is being scaled back to a 20-year rule.

Finally, the Justice Select Committee is to be tasked with “post-legislative scrutiny” (although it is not entirely clear to what legislation this task will apply) of how FOIA is being implemented.

Data protection crept in via Mr Clegg’s recognition that government “must be very respectful in handling personal information”. The EIR did not get a mention in the speech.

The full text of Mr Clegg’s speech is available here.


January 3rd, 2011 by Robin Hopkins

Brown v Information Commissioner and the Ministry of Justice (EA/2010/0119) concerned a request for a document which had been referred to in judgments from the High Court and Court of Appeal concerning the appellant’s unsuccessful application to view the will of the late Princess Margaret. The document had been referred to as a “practice direction for the sealing of royal wills”. The request for this document under FOIA was initially made to the Master of the Rolls, and was thereafter handled by the Ministry of Justice (which has responsibility for Her Majesty’s Courts Service).

The Tribunal agreed with the Information Commissioner and the MOJ that an adequate search had been conducted and that, on the balance of probabilities, the requested document was not held at the time of the request. It also clarified this statutory curiosity relied on by the appellant: the Master of the Rolls is not a listed public authority, but he is – under section 7 of the Public Records Act 1958 - responsible for “the records of the Chancery of England”, “including those created after the commencement of this Act”. The Tribunal has, however, explained that this is a matter of “antiquarian interest” concerning records of the courts of Chancery prior to the reorganisation of the courts in the 19th century. Requests under FOIA can, therefore, not be made to the Master of the Rolls.


January 3rd, 2011 by Robin Hopkins

The Queen is the Duke of Lancaster. Since the fourteenth century, the Duke of Lancaster has always been the reigning monarch. The Chancellor of the Duchy of Lancaster is a member of the Cabinet. He administers bona vacantia within and makes a number of official appointments for the Duchy.

The Duchy is not, however, a public authority for the purposes of the EIR. So held the Tribunal in Cross v ICO (EA/2010/0101), a decision which is part history lesson, part legal judgment.

The history lesson in brief: the Duchy was created in 1351 from lands which had been seized by Henry III in 1265. By a charter of 1399, Henry IV ensured the separation of the Duchy as his hereditary family estate from those of the Crown. The Duchy of Lancaster Case (1561) 1 Plowd. 212 confirmed that the Duchy is an estate inherited by the sovereign in his or her private capacity, rather than qua head of state.

The legal judgment in brief: the Tribunal found that the Duchy is not a government department, a publicly-owned company or a body that carries out functions of public administration (or indeed public functions at all).  It confirmed that, in this legislative context, “the Crown” means the central executive arm of government. It accepted – but emphasised that it was not confirming – that the Tribunal has jurisdiction over challenges to the Commissioner’s finding that a body is not a public authority. As to “public administration”, the Tribunal applied Port of London and Network Rail – but promulgated its decision before the Upper Tribunal’s recent decision in Smartsource (on which, see Anya Proops’ post here).

The Tribunal will hear a similar case concerning the Duchy of Cornwall shortly.


November 25th, 2010 by Anya Proops

The Upper Tribunal has this week handed down an important decision on the question of whether privatised water utility companies are ‘public authorities’ for the purpose of the Environmental Information Regulations 2004 (EIR): Smartsource v IC & 19 Water Companies (case no. GI/2458/2010). The background to the appeal was that Smartsource had submitted near identical requests for disclosure of information to some 19 water utility companies. It was not in dispute that the requests fell to be addressed under the EIR. The companies refused to provide the requested information on the basis that they were not ‘public authorities’ for the purposes of r. 2(2) EIR and, hence, were not subject to the disclosure obligations provided for in r. 5 EIR. The Commissioner rejected Smartsource’s complaint about the refusal on the basis that he accepted that the companies were not public authorities under r. 2(2). Smartsource appealed the Commissioner’s decision to the tribunal. The importance of the issues at stake in the case resulted in the appeal being transferred to the Upper Tribunal. The central issues which the Upper Tribunal was called upon to determine were as follows: (1) did the companies ‘carry out functions of public administration’ such that they fell within limb 2(2)(c) of the r. 2 definition of public authority; (2) alternatively, were they ‘under the control’ of a relevant public authority such that they fell within limb 2(2)(d) of the r. 2 definition.

With respect to the first issue, the Tribunal held that the companies did not carry out functions of public administration. It reached this conclusion applying a multifactoral approach akin to the approach adopted in the earlier cases of Network Rail v IC (EA/2006/0061) and Port of London Authority v IC & Hibbert (EA/2006/0083). Notably, the Tribunal rejected arguments advanced by Smartsource that the companies fell within limb 2(2)(d) of the definition because they: were appointed as statutory undertakers; were subject to a range of conditions imposed under statute; were subject to a comprehensive regulatory regime; were unable to choose their own customers or set their own prices; were obliged to provide a universal service; and would be subject to State intervention in the event that they failed. With respect to the second issue, the Tribunal held that that the companies were not ‘under the control’ of a relevant public authority for the purposes of r. 2(2)(d). In reaching this conclusion, the Tribunal accepted arguments advanced on behalf of the Commissioner and the companies that: the concept of ‘control’ in this context meant something more than that the body in question was merely subject to a stringent regime of statutory regulation; the aim of r. 2(2)(d) was to capture State/Executive functions in all their various guises and not the activities of privatised companies of the sort which were in issue in the instant case.

Importantly, the Tribunal also rejected ‘hybridity’ arguments to the effect that a body can be a public authority under the EIR for some purposes but not for others. According to the Tribunal, the way in which r. 2 was formulated meant that the body either was or was not a public authority (cf. the approach adopted in Port of London v IC).


August 10th, 2010 by Robin Hopkins

The Tribunal’s recent decision in Gradwick v IC and the Cabinet Office (EA/2010/0030) dealt with sections 23 and 24 of FOIA. Its concluding dicta also dealt with some procedural matters with potentially substantive implications, particularly concerning redacted material. Public authorities may find these dicta worth noting, both when preparing to disclose redacted material and when preparing for Tribunal hearings.

In response to a FOIA request, the Cabinet Office had decided to disclose some extracts from its Manual of Protective Security but to withhold others. Due in part to administrative complications, it did so by compiling a document consisting solely of the former rather than blanking out parts of the original manual. Relying on FOIA’s reference point being information rather than documents, the Cabinet Office sought to justify this approach in the face of criticism from the Tribunal. The Tribunal however, remarked that “it is at least arguable that a document which sets out the passages that contain the information to be disclosed, but which has the effect of obscuring the nature and extent of the information which has been withheld, does not inform the party making the request whether or not it holds information of the description specified in the request, for which exemption is claimed”.

This approach to the presentation of information could, it observed (without deciding the issue), constitute a breach of section 1 (duty to provide information) and/or section 16 (duty to assist) of FOIA.

The Tribunal indicated that it prefers the following approach:

“Within the practice established by the Tribunal and its users to date, a document characterised as having been redacted has come to mean one in which the extent of the omitted material is indicated by blank spaces and in which, to the extent possible, headings or other indications are retained or inserted to give a fair indication, to both panel members and those presenting submissions, of the broad nature of the information that has been withheld. Annotating the resulting document to indicate the exemption relied on to justify each omission is also a valuable assistance in cases where different exemptions apply to different sections of the document or information.”