The Information Tribunal ("IT") has recently considered the definition of a "public authority" for the purposes of the Environmental Information Regulations 2004 ("EIR") in Network Rail Limited v The Information Commissioner: EA/2006/0061 and EA/2006/0062. Network Rail Limited ("NRL") had appealed from the decisions of the Information Commissioner, (see our e-bulletin of 26 September 2006) concluding that it was a "public authority" for the purposes of the EIR. The Tribunal's decision, based on a restrictive interpretation of "functions of public administration" is likely to be welcomed by other companies which might be said to carry out some public functions. The decision was particularly significant for NRL given the Commissioner's additional finding that it is not a public authority for the purposes of the Freedom of Information Act 2000 ("FOIA"). Unless the Tribunal's decision is successfully appealed (or NRL's functions change significantly over time), NRL will not be obliged to provide information in response to requests under the EIR or FOIA.
The EIR provide a right of access to environmental information held by public authorities, (as opposed to all other information, which is covered by the FOIA). Regulation 2(2) provides that a "public authority" means a government department, certain other designated bodies (including those listed in Schedule 1 to the FOIA) and:
- "(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-paragraph…(c) 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."
It was accepted that the only part of the definition that could cover NRL was paragraph (c) above. For completeness, the Tribunal also considered the position of Network Rail Infrastructure Limited ("NRIL"), a wholly owned subsidiary of NRL. It was accepted that NRIL could only fall within the scope of regulation 2 (2) (d), which itself depended on NRL falling within paragraph (c).
The scope of regulation 2(2) (c) – "functions of public administration"
The IT identified the "striking" feature of regulation 2(2) (c) as its reference to "administration"; it adopted the approach that a body will not fall within the EIR simply because it carries out functions of a public nature – they must be "administrative" functions. In the light of this approach, the IT distinguished the position under the EIR from that under section 6 (3)(b) Human Rights Act 1998 which extends the duty to act compatibly with Convention rights to bodies exercising "functions of a public nature." It also took account of the DEFRA guidance on the EIR, which suggests that functions of public administration are "functions normally performed by governmental authorities as determined by the varying laws of signatory states."
The IT also considered and applied the case of Griffin v South West Water Services Limited  IRLR 15, in which Blackburne J decided that South West Water ("SWW") was not a "public administrative body", for the following reasons:
"SWW is no more an 'administrative body' because it 'administers' a service (the supply of water and sewerage services) than is a company carrying on business, manufacturing and distributing sweets because such a company 'administers' that enterprise …SWW's primary function, as a supplier of water and provider of a sewerage service, is to be contrasted with administrative functions such as town planning, court administration and any of the myriad administrative functions of the civil service."
The IT concluded that neither NRL nor NIRL were bodies that carried out "public administrative functions". It made the following observations:
- NRL does not administer anything, save in the sense that it runs its own business;
- it is not a regulator, nor does it set safety standards; its ability to influence or control the conduct of those with whom is deals derives from the terms on which it contracts;
- running a railway is not seen nowadays in the UK as a function normally performed by a government authority; and
- the EC directive that gave rise in large measure to the Railways Act 1993 adopted the principle that running railways is an activity for independent bodies operating as competitive, commercial concerns according to the dictates of the market.
Are NRL/NRIL public bodies at all?
Although the IT's finding on the meaning of "public administrative functions" was sufficient to dispose of the appeal, it went on to consider the wider issue of whether NRL/NIRL were public bodies at all. In that context, it referred to the recent House of Lords decision in YL v Birmingham City Council  UKHL 27, in which, by a majority of 3 to 2, it was held that a private care home providing accommodation to elderly residents under contract with a local authority was not itself exercising “functions of a public nature” for the purposes of the HRA. Consequently, the care home was not bound under section 6(1) of the HRA to act in accordance with Convention rights. Their Lordships' judgment in YL has been met with widespread criticism on the basis that the vulnerable residents of private care homes will be required to rely on domestic private law remedies rather than the extra protection afforded by the HRA.
In its consideration of the possible status of NRL/NRIL as public bodies, the IT adopted the approach taken in YL and the earlier House of Lords case of Aston Cantlow and Wilmcote with Billesley v Wallbank and another  UKHL 37, namely that there can be no "single test of universal application" for determining whether a function is public. Instead, the IT had regard to a number of factors identified by the House of Lords as being of potential relevance. The following factors led it to the conclusion that NRL/NRIL are not public bodies:
- they are private companies seeking to produce a profit;
- directors are appointed by the board and the government exercises no influence or control;
- they were not created by statute and do not exercise statutory powers; and
- if they did not exercise these functions, they would be performed by some other similar body and not by central government.
The decision in Network Rail demonstrates that because of the inclusion of the "public administration" requirement in regulation 2 (2) (c) there is scope for a somewhat narrow application of the EIR to bodies which are not caught by the "main" parts of the definition. The Tribunal's willingness to adopt a narrow interpretation reflects the approach recently adopted by the House of Lords in YL on the separate but similar issue of what constitutes a public authority for the purposes of the Human Rights Act. It will be interesting to see whether the decision is appealed.
The IT itself clearly had concerns about the implications of its decision, noting in a "postscript" that despite the status of NRIL as a major landowner whose estate is intensively visited by the public and has a significant impact on the daily lives of many people, it has no duty to provide information in accordance with the EIR. It considered that the consequences of its decision may be "anomalous", and encouraged DEFRA and/or the Department for Transport to address this "clearly unsatisfactory" position.