Blurred Lines – when are private companies not so private?

Blurred Lines – when are private companies not so private?

The Environmental Information Regulations 2004 (the “EIRs”) have been the subject of intense debate and scrutiny in recent weeks as a result of decisions made by the Information Commissioner’s Office (the “ICO”).

In February 2020, the ICO held that both E.ON UK plc (“E.ON”) and Heathrow Airport Ltd (“HAL”) are to be regarded as public authorities for the purposes of the EIRs. These decisions have been made in light of each company’s failure to respond to environmental information requests made pursuant to the EIRs.

The EIRs impose a duty on public authorities to provide the public with access to environmental information upon request. This regime runs parallel to that created by the Freedom of Information Act 2000.

The complainant in the HAL case requested information in relation to the proposed development of the “Western Hub” and associated infrastructure at Heathrow Airport. This development is expected to cost HAL approximately £31 billion and would involve the large scale construction of a central hub, which would serve as “a single front door” for the 85 million visitors of Terminal 5 and the new Terminal 6. Whilst this expansion could unleash a major boost to the UK economy, it is suggested that it could also increase carbon emissions to a dangerous extent. Speaking on the BBC’s Today programme, HAL’s CEO John Holland-Kaye said, “the enemy is carbon not aviation. We need to protect the ability to fly in a world without carbon. The answer is not to stop people flying. It has to be about decarbonising aviation.”

In response to the information request HAL explained that it is not a public authority for the purposes of the EIRs and is therefore not obliged to respond to such requests.

The ICO, citing Fish Legal v Information Commissioner and others [2015] UKUT 0052 (AAC), held that HAL carries out functions of public administration and  is therefore a public authority for the purposes of regulation 2(2)(c) of the EIRs. The ICO’s decision was made on the following bases:

  1. HAL was entrusted by the Airport Act 1986 to operate the airport. The national importance of the airport to the UK’s economy and population meant that it was a public interest service;
  2. The operation of any airport had a clear impact on the environment; and
  3. HAL was afforded “special powers” by virtue of several pieces of legislation, including the Civil Aviation Act 2012, which gave it, amongst other things, a right to acquire land by compulsory purchase, broader development rights and the right to control land as an airport operator.

It was therefore held that there was a sufficient similarity between HAL’s functions and those of the state and executive to support the ICO’s decision that HAL is a public authority.

In light of the above, it is likely that if the same request had been made in connection with the development of Swansea Airport, or similar, a refusal to provide information would have been permitted by the ICO. It seems that the emphasis is on the company having a substantial impact on the UK’s economy and population.

By virtue of the ICO’s decision notice, HAL must respond to the information request in accordance with the obligations imposed on public authorities under the EIRs within 35 calendar days of the date of the decision notice, therefore by 9 March 2020. 9 March 2020 is only a couple of weeks away so it will be interesting to see the information HAL provides.

The factual matrix of the E.ON case is near to identical and concerned a request for information on E.ON’s development of an offshore windfarm. The ICO cited the generation and supply of energy being of particular importance to the public and the economy which, amongst other factors, meant that there was a sufficient connection between E.ON’s function as a supplier and generator of gas and electricity and the functions undertaken by the state.

It is no surprise that these decisions will alarm larger companies given that the environment is, of course, at the top of the global agenda. There is perhaps the threat here that these decisions may open the floodgates and lead to many similar companies receiving an influx of environmental information requests.

If you have received an environmental information or freedom of information request or would like some more information in relation to how to make such a request, please contact our commercial team.

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