Background

The Aarhus Convention is a major international treaty on the environment. Among other things, it contains provisions requiring each of its signatories (including the UK) to make a wide range of environmental information available to the general public.

These provisions of the Convention have effect in European law through an EU Directive (2003/4/EC). In turn they are implemented in England, Wales and Northern Ireland by the Environmental Information Regulations 2004 (the Regulations).

The Regulations impose duties on 'public authorities' to provide access, on request, to certain environmental information.

Regulation 2(2) defines public authorities as the following:

  • government departments
  • most bodies subject to the Freedom of Information Act 2000
  • other bodies carrying out 'functions of public administration'
  • bodies under the control of any of the above which also have public responsibilities relating to the environment, exercise functions of a public nature relating to the environment, or provide public services relating to the environment.  

Privately owned utility companies do not fall within (a) or (b). However, whether they are within the scope of either (c) or (d) has always been open to argument.

Guidance issued by the Department of Environment, Food and Rural Affairs (Defra) on the scope of the Regulations in 2007 stated that:

"Public utilities, for example, are involved in the supply of essential public services such as water, sewerage, electricity and gas and may fall within the scope of the [Regulations]". (Emphasis added)

Since then, there have been three decisions of either the Information Commissioner or the Information Tribunal which have considered this question.

The Network Rail Decision (2007)

In July 2007, the Information Tribunal (the Tribunal) decided an appeal relating to a request for information from Network Rail Infrastructure Limited (formerly Railtrack plc). In its decision, the Tribunal found that Network Rail was not a public authority.

In considering Regulation 2(2)(c), the Tribunal stated that the carrying out of 'functions of public administration' is far more restrictive than simply carrying out public functions. Network Rail would not fall within this provision. The Tribunal considered Regulation 2(2)(d) only briefly, focusing only on the question of corporate control. In its view, this did not qualify Network Rail as a public authority within the meaning of the Regulations.

The Sutton & East Surrey Decision (2008)

In March 2008, the Information Commissioner (the Commissioner) determined a complaint made against Sutton and East Surrey Water plc for failing to provide information that had been requested under the Regulations. In determining the complaint, the Commissioner considered whether Sutton and East Surrey Water was a public authority for the purposes of the Regulations.

The Commissioner decided that Sutton and East Surrey did fall within Regulation 2(2)(c) as: (i) water companies are appointed by the Secretary of State or Ofwat; and (ii) the appointment could be terminated or have conditions attached to it. It followed, in his view, that the companies are therefore effectively required to administer the public water supply on behalf of the government.

The Commissioner also concluded that as water companies are appointed and regulated by a government department (Ofwat) under the Water Industry Act 1991, and have public responsibilities to the environment, they could also fall within the Regulation 2(2)(d).

The Commissioner therefore concluded that water companies were public authorities and that the Regulations were applicable.

The Water Companies' Decision (2010)

In March 2010 the Commissioner was involved in resolving another complaint concerning a request for information made under the Regulations - this time the request was made to a number of water and/or sewerage companies. The applicant had requested water quality reports and documents containing information on sewer flooding, water pressure, trade effluent and billing.

The sole issue considered was whether or not water companies were public authorities for the purposes of the Regulations. Disagreeing with his own Sutton & East Surrey decision, the Commissioner determined that water companies are not public authorities.

Following the Tribunal's thinking in the Network Rail decision, the Commissioner stated that supply of water services may be a public function, but not a public administrative function. The Commissioner also drew on case law to emphasise that water companies are commercial operations, which do not exercise functions of a governmental nature. On this basis, he determined that water companies do not fall within Regulation 2(2)(c).

The Commissioner then considered whether water companies were 'under the control' of another public authority (for the purposes of Regulation 2(2)(d)).

He noted that Defra's guidance states that the level of control exerted must be sufficient to amount to 'decisive influence'. He considered that while Ofwat, the Environment Agency and the Drinking Water Inspectorate each has some regulatory control over water companies, the companies also enjoy a high level of commercial independence free from decisive regulatory influence. On this view, water companies are similar to any private company whose business is subject to regulation.

The Commissioner therefore decided that the Regulations were not applicable to water companies and so the complainant was not entitled to the information requested.

Analysis For various reasons, none of these decisions is entirely satisfactory.

The Network Rail decision was closely reasoned on the subject of Regulation 2(2)(c), but it failed adequately to consider the scope of the concept of 'control' in Regulation 2(2)(d).

The Sutton & East Surrey decision is very thin in its reasoning, and does not even recognise the existence or relevance of the Network Rail decision, as if the Commissioner had been unaware of it when considering the case.

The Water Companies' decision is certainly the most well-reasoned of the three available. The Commissioner should be given some credit for facing the deficiencies in his earlier decision and being willing to reconsider it. And he has undoubtedly on this occasion given proper weight to the Network Rail decision and to some of the relevant background to the Regulations.

Nonetheless, there are many reasons for considering the decision still to be inadequate. The Commissioner relies heavily on background materials such as Defra's guidance, but his quotations from these documents are partial in a way that renders them unpersuasive and open to misinterpretation of the original materials. This may reflect a reliance by the Commissioner on the arguments put to him rather than the more thorough and enquiring consideration for which we might have hoped.

Crucially, there appears to have been no serious attempt to explore fully the underlying policy of the Regulations by reference to the international and European law which they are designed to implement. The Commissioner should have taken a purposive approach to the interpretation of the Regulations, applying them in such a way as to give effect to the intentions of the Aarhus Convention based on a thorough analysis of the materials. In doing so he may well have reached a different decision.

Commentary

Many utility companies - not merely those water companies participating in the case - will welcome the Commissioner's recent decision, and for entirely understandable reasons. In a world in which regulation appears constantly to be on the increase, it is a development of rare deregulatory effect, removing from the companies a potentially burdensome and costly obligation.

Since utility companies are privately owned businesses under pressure to keep prices down and maintain quality of service while also (in most cases) delivering returns to their shareholders, one fewer legal duty amounts to a small victory against the general tide of regulation.

On the other hand, the utility companies inherited their role, together with much of their property and other assets, from the state. They hold large quantities of information on a range of environmental matters that are of significant interest to the public. In much of Europe and the wider world there is no question that utility (especially water) services constitute an integral part of what a nation state or a municipality provides to its citizens, and their providers are under a duty to provide public access to environmental information in accordance with the Aarhus Convention. Indeed it is not necessary to look far for an example of this - a situation which prevails in the water sector in Scotland.

In these circumstances, is it appropriate that environmental information should - merely because of the historical fact of privatisation - be able to be withheld from the public? Is this consistent with Aarhus? How will it affect those who have, in reliance on the Sutton & East Surrey decision, been obtaining environmental information from utility companies since 2008?

In the Network Rail decision, the Tribunal, while concluding as a matter of law that the Regulations did not apply to Network Rail, expressed serious dissatisfaction with the policy implications of its own judgment. Its members would clearly have preferred to reach the opposite conclusion if they felt that they had been able to do so. And they made a point of suggesting that Defra may amend the Regulations in some way so that Network Rail falls within their scope.

For those on either side of the argument, the inadequacies of the three decisions mentioned above require an authoritative position to be determined once and for all. Fortunately, the Water Companies' decision is currently in the process of appeal to the Information Tribunal.

The alternative, of course, is an amendment to the Regulations to clarify their intended scope. But this seems unlikely to happen any time soon. The outgoing Government has toyed for some time with the prospect of bringing utility companies within the purview of the Freedom of Information Act. In a recent consultation response it stated that it was 'attracted' to such a development. But the issue appears to have been regarded as too difficult and has consistently been kicked into the long grass. It is questionable whether it will be anywhere near the top of the priorities list for the incoming administration.

Moreover, an amendment to the Regulations, tied as they are to the correct interpretation of international and European law, presents even greater difficulties than a change to freedom of information legislation.

Consequently unless it is appealed further, the decision of the Information Tribunal, due over the summer, is likely be the authoritative position on the disclosure of environmental information by utility companies for the foreseeable future.

Whatever the outcome of that case, it is to be hoped that the Tribunal's decision will be soundly based on a thorough analysis of the law and its underlying policy.