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Information on the condition of highways are subject not to the Freedom Of Information Act but to the Environmental Information Regulations.

Public bodies such as the Highways Agency or a local authority may employ a contractor to clean the highways under their control.   Often the contractor  holds the cleaning records.

Although not themselves public bodies they are subject to the EIR for the following reasons:

Section 2(2) of the Environmental Information Regulations states

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

(a)government departments;

(b)any other public authority as defined in section 3(1) of the Act, 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
Please also refer to  the Information Commissioners Decision Notice, FS50114241 of 18 March 2008 which concerns the South Downs Waste Services Ltd, contractors to  Brighton & Hove City Council. You will see that the Commissioner was satisfied that the company was a public authority under regulation 2(2)(d) of EIR. He was of the opinion that the company could be said to be under the control of Brighton & Hove City Council by virtue of the management contract it entered into with the Council.  He felt they were  carrying out the responsibilities of the council under their control as demonstrated by the performance levels required under the contract. Please refer to http://www.ico.gov.uk/upload/documents/decisionnotices/2008/fs_50114241.pdf for full judgement.

Peter Silverman

 

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