Given that Chiltern Railways’ passenger franchise contract with the Department for Transport terminates next year, with plans for public ownership to take place this summer, one doubts that a recent decision by the Information Commissioner’s Office, to the effect that CR is a public authority for the purposes of the Environmental Information Regulations 2004 (EIR), will be subject to an appeal.
It’s an interesting decision in any event. CR has been operating under a franchise since 1996 – by far the longest standing such agreement involving an operator still in private hands. Nonetheless, the ICO, drawing heavily on a previous decision by the Scottish Information Commissioner in respect of Abellio Scotrail (the ICO refers to “Abelli” – just one of multiple typos and infelicities in the decision notice) has determined that the specific nature of the franchise agreement vests the government with sufficient control such as to make CR “under the control” of a government department, for the purposes of regulation 2(2)(d) of the EIR, and, as CR conceded, it is “providing a public service relating to the environment based on the nature of rail travel in England and Wales and also the environmental obligations set out in the [franchise agreement]”.
This was despite the fact that the agreement itself forbids CR from responding to any request for information under the EIR (or the Freedom of Information Act) and requires it to pass any such request to the DfT. However, as the ICO correctly points out, whether a person is an EIR public authority must be determined on the law, as applied to the facts, and the person cannot contract themselves out of a statutory obligation.
In a few years’ time the era of national rail privatisation will largely have passed, at least in terms of passenger services. My instinct is that the ICO is correct, but, unfortunately, it is not a particularly detailed and well argued decision. As I mention above, I suspect the chances of an appeal are low, which is perhaps a shame, as we might have had the chance to see the points argued out more fully.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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