Three recent decisions relating to Environmental Resources Management (ERM), Network Rail, and The Port of London Authority have shed light on the meaning of ‘public authority’ under the Environmental Information Regulations (the Regulations), establishing that private organisations which carry out public functions relating to the environment may fall within the scope of the Regulations.

Regulation 2(2) of the Regulations sets out the definition of ‘public authority’. Government departments, and authorities listed within the Freedom of Information Act 2000 are covered.

The following are also covered by the Regulations: 

  • ‘(c) any other body or 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 subparagraphs (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 main difficulties are:

  • interpreting what constitutes ‘functions of public administration’ under paragraph (c); and
  • establishing when an organisation subcontracted by a public authority falls within the Regulations.

The three decisions provide well needed guidance on both of these questions.

ERM

The ERM decision concerned a request for documents relating to an environmental assessment and report prepared by ERM, a private company, under a contract with the Regional Assembly for the North East of England (RANE). The Information Commissioner (the Commissioner) found that ERM fell within the Regulations in relation to the report by virtue of:

  • being a body under the control of a body carrying out a function of public administration; and 
  • exercising functions of a public nature relating to the environment.

These functions were held to be ‘public’ because RANE had a statutory duty to perform them under the SEA Regulations. By contracting out these functions, RANE was merely fulfilling its statutory duty. The Commissioner commented that:

‘Through this contract, RANE has delegated a public function to ERM, and ERM, for the purposes of this case are therefore subject to the provisions of the [Regulations] because in carrying out an environmental assessment it is under the control of a public body and is exercising functions of a public nature relating to the environment.’

The Commissioner was careful to point out that external service providers to public authorities may be public authorities in respect of some information they hold and not others. Therefore, although ERM had obligations under the Regulations in relation to the information held for RANE in this instance, this would not necessarily be the case under all of their contracts.

Port of London

In The Port of London case, the Information Tribunal (the Tribunal) ruled that The Port of London Authority (PLA) was a public authority in relation to information held about reconstruction and development works carried out to Temple Pier on Victoria Embankment, and in particular, the River Works Licence.

In its ruling, the Tribunal referred to several questions posed by the Commissioner in his initial ruling on the case. These questions assist in ascertaining whether an organisation carries out ‘functions of public administration’. They are:

  • whether these are the type of functions that are typically governmental in nature;
  • whether the functions of the body in question form part of a statutory scheme of regulation?;
  • whether those functions are such that if the body did not exist, some Governmental provision would need to be made for the exercise of these functions;
  • whether the organisation has a statutory basis, or whether it exists purely as a matter of contract;
  • whether the organisation is accountable to members or shareholders, or alternatively whether it has some formal accountability to Government (eg a requirement to make reports to Parliament).

The Tribunal was satisfied that the PLA is an organisation that carries out functions of public administration, and in its lengthy ruling, pointed to several factors leading to this conclusion including: its statutory basis; its accountability to Parliament; the requirement that it carries out all of its functions in accordance with its statutory duties; and its extensive powers of regulation.

Network Rail Limited

The Tribunal overturned the decision of the Commissioner on the question of whether Network Rail Limited (NRL) and Network Rail Infrastructure Limited (NRIL) are ‘public authorities’ under the Regulations. (The Tribunal recognised the distinction between the two companies but treated them as one for the purposes of the judgment). The Tribunal held that NRL's functions are not functions of administration (whether public or private); and its functions are not public.

In reaching its decision, the Tribunal considered similar factors to those in the Port of London case including the following:

  • NRL is a private company seeking to produce a profit and the destination of its profits does not affect its commercial motivation;
  • its Directors are appointed by the existing Board and the Government exercises no influence or control; 
  • it was not created by statute and its powers are not statutory powers;
  • if NRL did not perform these functions, they would be performed by other similar bodies, not central Government.

The Tribunal specifically examined the meaning of 'administration' for the purposes of the Regulations, pointing out that 'a body does not fall within the Regulations simply because it carries out functions of a public nature; they must be administrative functions'.

Conclusion

These three decisions should alert private organisations that, when undertaking public work, there is a real possibility that some or all of the work that they do may fall within the remit of the Regulations if it is a delegated public function relating to the environment. Public authorities should consider themselves duty bound to inform the contracting party if they know this to be the case. Quasi-public bodies unsure of whether they undertake ‘functions of public administration,’ should assess their status in view of the questions set out in the Port of London decision and the comments made in the NRL decision. All of these organisations should bear in mind that their status may differ in relation to the different functions they undertake.