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Is a Highways Agency maintenance contractor a “public authority” under the Environmental Information Regulations?

Section 2 (2) of the Environmental Information Regulations (2004) defines who is a public authority and therefore subject to its provisions.  It states:

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

(a)  government departments;

(b) any other public authority as defined in section 3(1) of the (FOI) 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

Are they public bodies under 2 (c)?

The case of Network Rail is relevant here.  The Information Commissioner had ruled that RN was a public authority under 2(2)c  (Case Ref: FER0071801).  On appeal this was overturned by the Information Tribunal on the grounds that while NR was a body which carries out public functions, it was not a body which carries out public administrative functions.  It did not administer anything, save in the sense that it ran its own business. It was not a regulator. It did not for example set safety standards. (IT appeal number EA/2006/0061)
We can conclude from this that the HA contractors are not public authorities under 2(2) c.

Are they public bodies under 2(2) d?

Here one can look at a later Decision Notice by the Information Commissioner, FS50114241 of 18 March 2008 concerning South Downs Waste Services Ltd who were contractors to  Brighton & Hove City Council. The Commissioner was satisfied that South Downs Waste Services Ltd 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 integrated waste management contract it entered into with the Council.  It was 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.

In view of this it is reasonable to conclude that the HA motorway maintenance contractors should consider themselves to be public authorities for the purposes of the EIR.

Other reading

http://www.ico.gov.uk/upload/documents/library/environmental_info_reg/detailed_specialist_guides/environmental_information_regulations_code_of_practice.pdf

http://www.defra.gov.uk/corporate/policy/opengov/eir/guidance/full-guidance/pdf/guidance-2.pdf
Peter Silverman
www.Section91EPA.org.uk

 

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