Category Archives: Environmental Information Regulations

February 11, 2026 · 5:47 am

ICO: Chiltern Railways is an EIR public authority

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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February 7, 2026 · 9:48 am

Beware invisible law

An interesting aspect of domestic law-making is what I think of as the “invisible provisions”. Here is an example which finally made it off the statute books recently.

If, prior to the last week, you went to the Data Protection Act 1998 page on legislation dot gov dot uk, and opened the “latest version”, you would get the words:

Act repealed (except s. 62, Sch. 15 paras. 13, 15, 16, 18, 19) (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 44 (with ss. 117, 209, 210, Sch. 20 paras. 2-9, 17-25, 27-46, 53, 54, 58); S.I. 2018/625, reg. 2(1)(g)

Straightforward, then? It’s all been repealed (except for some minor provisions dealing with consumer credit and interpretation of Northern Ireland access to medical records law). And “repealed” means, “no longer in force”, yes? Well, not necessarily.

Because, what you wouldn’t see anywhere on the legislation pages for the 1998 Act, is paragraph 58 of Schedule 20 to the Data Protection Act 2018 (the Act that repealed the 1998 Act), where you will see “The repeal of a provision of the 1998 Act does not affect its operation for the purposes of the Privacy and Electronic Communications (EC Directive) Regulations 2003”.

So, even though the enforcement provisions of the 1998 Act were repealed, that repeal did not affect their operation for the purposes of enforcing PECR. They remained in effect even though they were repealed.

The commencement of section 115 of the Data (Use and Access) Act 2025 finally takes PECR enforcement away from the 1998 Act.

There are myriad examples of this. Take the Freedom of Information Act 2000. Nothing in its own provisions would suggest that its enforcement provisions also apply to the Environmental Information Regulations 2004. To understand that point, you have to refer to the Regulations themselves, which say “The enforcement and appeals provisions of the Act shall apply for the purposes of these Regulations as they apply for the purposes of the Act”.

How is one meant to know if an invisible provision is affecting a statute or other instrument? The simple answer is, you will only know if you know, or if you undertake sufficiently diligent research. Some have access to expensive legal research tools, but that’s not a luxury open to all.

All I can say is that it is a potential pitfall to be aware of, for anyone advising on the law.

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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January 29, 2026 · 6:00 am

Tribunal – Soil Association certification subsidiary is subject to EIR

The Soil Association Ltd, is a company limited by guarantee and a not-for-profit registered charity. It is not a public authority for the purposes of the Freedom of Information Act 2000 (FOIA), nor, I think, has anyone proposed that it is a public authority for the purposes of the Environmental Information Regulations 2004 (EIR). Yet the Information Commissioner’s Office, in a decision now upheld by the Information Tribunal, has determined that a subsidiary company of the Soil Association – SA Certification Limited – is a public authority for the purposes of the EIR. I think this is probably the correct position, and the judgment of the Tribunal is helpful in explaining why.

A body is a public authority for the purposes of FOIA primarily by way of designation or ownership (if the body is listed in Schedule One of FOIA, or designated by Order, or is wholly owned by one or more other public authorities, then it falls under the regime). The EIR are different: a body is determined to be an EIR public authority if it is a FOIA one, but it might also be one by virtue of what it does or is empowered to do. Under regulation 2(2)(c) if the body is a “natural or legal [person] having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person [who is a public authority]” then it will be a public authority for the purposes of the EIR.

The case law has established that one of the core tests for this is whether the body has been vested with “special powers” of a public nature, “beyond those which result from the normal rules applicable in relations between persons governed by private law’” (C-297/12 Fish Legal v Information Commissioner).

SA Certification Ltd is an accredited certification body for the delivery of certification under a number of regulations and standards, and is designated by DEFRA as a “control body” for the purposes of its “control system” for the labelling of organic products. This, held the Tribunal, confers a special power on SA Certification to certify as organic and to suspend or terminate certification, and this was sufficient to render it a public authority for the purposes of the EIR.

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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June 6, 2025 · 8:44 am

Hinkley Point C construction company is a public authority under the EIR

The Information Tribunal has ruled that the Nuclear New Build Generation Company, a subsidiary of EDF Energy, created to construct s new nuclear power plant at Hinkley Point C (HPC), is a public authority for the purposes of the Environmental Information Regulations 2004 (EIR)

In the last fifteen years or so, a very interesting body of case law has been built up regarding the extent to which certain private persons have accrued, or have been conferred upon them, the status of a public authority for the purposes of the EIR. Some of the bodies who have been held to be public authorities (at least in a limited EIR sense) are water companies, BT, public gas transporters, and port authorities. Some which have not been held to be include Heathrow Airport and housing associations.

The EIR create a scheme for public access to environmental information held by public authorities, which runs in parallel to the scheme under the Freedom of Information Act 2000 (FOIA). Where FOIA, though, specifically designates public authorities, the EIR (which implemented an EU Directive, emanating in turn from the 1998 UNECE Aarhus Convention) define a public authority by virtue of its actions and powers.

Whether a person is a public authority will often turn on whether it “carries out functions of public administration”. The tests for this derive from the “Fish Legal ” in the CJEU: whether they are “entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, and…are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”

In NNB Generation Company (HPC) Ltd v Information Commissioner & Anor [2025] UKFTT 634 (GRC), the Tribunal, considering an appeal by HPC from a decision by the Information Commissioner’s Office that it was an EIR public authority (and in which Fish Legal were again the applicant), held that the relevant Development Consent Order, and the electricity and nuclear licences granted to HPC constituted entrustment with the performance of public services in relation to the environment, and the powers accruing from that entrustment “go far beyond what a private person without the benefit of such powers would be able to do in those circumstances, for example in empowering HPC to make byelaws, even if it opts not to do so”.

Decisions of this sort are nuanced and complex, and for that reason, often amenable to appeal. I would not be surprised if this one goes to the Upper Tribunal.

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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February 5, 2025 · 8:04 am

Is information held by external solicitors “held” for the purposes of FOIA?

[reposted from my LinkedIn account]

Where an external solicitor’s firm holds information in relation to advice given by the solicitor on instructions by a public authority client, is the information held by the solicitor “on behalf of” the public authority, for the purposes of section 3(2)(b) of the Freedom of Information Act 2000?

While the matter is live, the answer is probably “yes”, but what if the public authority client has long since destroyed its own records, but the solicitor’s firm has retained its records for its own regulatory or risk purposes? Here, the answer is probably “no”.

And that is the situation which came before the Information Tribunal recently. The requester was seeking information from Sheffield City Council about a development scheme from 2007/2008. The Council had said that it would have destroyed its own records, and said that to determine whether the information was held would necessitate the inspection of 28 box files held by law firm Herbert Smith Freehills, who had been instructed by the Council at the relevant time. To even determine whether the information was held or not would exceed the costs limits in section 12 of FOIA. The ICO, in the decision notice being appealed, had agreed.

As I was reading the first few paragraphs of the Tribunal judgment, I said to myself “hang on – is this info being held by HSF on behalf of the Council, or is it being held for HSF’s purposes?” I was limbering up my fingers to write a post criticising everyone for not spotting this, so I was then pleased to see that the Tribunal, of its own volition, identified it as an issue and sought submissions from the ICO and the Council on it.

After some back and fro (it is not entirely clear from the judgment who said what in their submissions, and there was a side issue as to whether in fact the Environmental Information Regulations applied) the evidence was pretty clear that the Council had had no intention to retain the information, nor to entrust it to HSF. Accordingly, the information was not “held” for the purposes of FOIA.

I’m not sure I understand why the Tribunal did not substitute a different decision notice to reflect this (it simply dismissed the requester’s appeal), but ultimately nothing really turns on that.

What one can take from this is that solicitors and their clients (especially public authority clients) should, jointly and separately, make clear in agreements and policies what the status is of information retained by solicitors after an instruction has ceased, and how requests for such information should be dealt with.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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January 28, 2025 · 6:20 am

Closed MI5 material in the Information Tribunal

You don’t know what you don’t know.

A recent judgment in the Information Tribunal is a good example of this platitude in the context of access to information held by public authorities.

The applicant had asked MI5, under the Environmental Information Regulations 2004 (EIR) for information on its CO2 emissions (by reference to the Greenhouse Gas Protocol). MI5 refuse to disclose in reliance on the exception to disclosure at regulation 12(5)(a), on the grounds that disclosure would adversely affect national security. This refusal was upheld by the Information Commissioner’s Office.

Perhaps unsurprisingly, the applicant was sceptical. The judgment notes that

she said that MI5 had not demonstrated a causal link between the disclosure of the information and the claimed adverse effect of that disclosure; MI5 had not provided any evidence that the adverse effect of disclosure was more likely than not to occur. She described the position of MI5 to be based on assumptions and that they had overlooked the difficulty of inferring accurate information from emissions data

The Information Tribunal can, though, consider closed material in EIR and FOI processing (ie information and evidence which the applicant cannot see/hear). And in this case, MI5 adduced closed evidence, in the form of “damage assessments” which

included submissions as to how the emissions data could be used and the nature of the conclusions that could be drawn from those data, whether analysing the data alone, by also using data in the public domain or by using comparators” and “identified stark and very accurate conclusions that could be drawn from the raw data itself with simple calculations

In the face of such evidence, the Tribunal inevitably dismissed the applicant’s appeal.

The judgment is well worth reading as an illustration of how the closed material procedure works.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 27, 2024 · 5:57 am

Late (very late) reliance on exemptions, redux

[reposted from LinkedIn]

A Freedom of Information exemption may be relied upon “late” by a public authority (e.g. it can be claimed, after an initial refusal on other grounds, during an investigation by the Information Commissioner, or in the course of proceedings before the First-tier Tribunal). The jurisprudence on this is clear (Birkett v The Department for the Environment, Food and Rural Affairs [2011] EWCA Civ 1606, All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner & Ministry of Defence [2011] UKUT 153 (AAC), Information Commissioner v Malnick and the Advisory Committee on Business
Appointments [2018] UKUT 72 (AAC), McInerney v Information Commissioner and the Department for Education [2015] UKUT 0047 (AAC)).

But can a public authority, having received a preliminary decision from the FTT that an exemption is not engaged, and after the FTT has invited further submissions on the other exemptions said to be engaged, adduce new grounds for the rejection of the first exemption? Perhaps surprisingly, the FTT has answered “yes”.

In Finch v IC & HMT EA/2023/0303, the FTT had rejected HMT’s reliance on the section 12 costs exemption, in a preliminary decision of 12 January. HMT had argued that its IT supplier would charge more than £600 to retrieve the requested information from storage, and so the s12 exemption was engaged. However, the FTT held that no evidence was provided as to this, and so rejected the argument. As the ICO’s decision under appeal had only considered the s12 issue, the other exemptions said by HMT to be engaged (s40(2), s41, s43(2)) required further submissions from the parties, and so the FTT directed that these be provided and heard at a subsequent hearing.

HMT then submitted that it wished to rely on s12 on different grounds because a “new factual matrix” needed to be considered – in fact it did have access to repository of information, but the searches would take c.46.5 hours (and so exceed the s12 costs limits).

The FTT determined (Birkett, Malnick and – oddly – Browning v Information Commissioner [2013] UKUT 236 considered) that the broad case management powers under rule 5 of the Tribunal Rules allowed it to set its own procedure and that, accordingly, it would permit this “pivoted” reliance on new s12 grounds.

Those new grounds then prevailed, the s12 exemption applied (as would have, if necessary, the s40, 41, and 43 grounds) and the appeal failed.

Even though the ICO did not appear at the hearing, they did make submissions suggesting they opposed the late reliance. It will be interesting to see if they seek to appeal, as the idea that public authorities can as a general rule shift their grounds for relying on an exemption after it has been – in a preliminary decision – rejected, is not a particularly attractive one.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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September 2, 2024 · 3:49 pm

Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021)

I wrote recently about the fact that a judgment in the Upper Tribunal, which the Information Commissioner cites in guidance, was not publicly available anywhere. The ICO had refused to disclose it in response to a Freedom of Information Act request and suggested the requester ask for a copy directly from the Tribunal.

I don’t know if the requester did, but I thought it would be helpful to do so, and upload it here. (Kudos to the Tribunal for the swift, helpful reply.)

I’m also going to contact Bailii, and see if they might host a copy as well.

GIA-85-2021.pdfDownload

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 26, 2024 · 8:00 am

Closed justice and the EIR

[reposted from LinkedIn]

The Upper Tribunal is an appellate court: its judgments create precedent, under the doctrine of stare decisis. For that reason, one might think that all of its judgments would be published – particularly ones that are cited by a regulator in its guidance. But that’s not the case.

The Information Commissioner’s Office (ICO) refers to an Upper Tribunal judgment – Department for the Economy (Northern Ireland) v Information Commissioner and White (GIA/85/2021) – in its guidance on the Environmental Information Regulations, but the judgment has never been openly published online (it’s possible one of the various paid-for online legal libraries has it – I haven’t checked).

The lack of easy access to judgments and other court documents in general (not just those in the Upper Tribunal) is one that has understandably exercised people for a number of years. Things have got much better in recent years, and the work of BAILII (British and Irish Legal Information Institute) and of people like Lucy Reed KC, Judith Townend and Paul Magrath at The Transparency Project has been key in advancing this core constituent of the principle of open justice. But there are still huge amounts of case law which are not readily available to the public.

For this reason I was struck by the ICO’s response to an FOI request for a copy of the judgment that they rely on to justify their own approach to the law. They point out to the requester that the only copy of the judgment they hold is a signed one from the court, and that it was “not intended for publication or wider disclosure”. They refuse to disclose it in reliance on the absolute exemption at section 32 of the Freedom of Information Act 2000 (FOIA) for information created by a court. What they don’t consider is – despite there being an exemption engaged – whether to exercise their discretion not to rely on it. In the circumstances, this would seem an obvious thing to do.

In fact, as the judgment is about the Environmental Information Regulations 2004, and it is used by the ICO to support its guidance on those regulations, it seems clear that the ICO should have dealt with the request also under the regulations. As they do not have an equivalent exemption to section 32 of FOIA, I cannot see the grounds for non-disclosure.

Instead, they suggest the requester asks for a copy from the Tribunal directly. Much better, and public-spirited, I would have thought – if they felt they shouldn’t or couldn’t directly disclose – would have been for the ICO to seek the permission of the Tribunal to disclose (or even better, to nudge the Tribunal to get it uploaded at https://www.gov.uk/administrative-appeals-tribunal-decisions).

The upshot of all this is that – regardless of whether the original requester does so – I’m going to contact the Upper Tribunal to ask for a copy, and when I get it, I’ll upload it to my personal blog. But I’m not convinced that’s really how open justice should operate.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 25, 2024 · 9:36 am

Countless erroneous FOI decision notices

[reposted from LinkedIn]

Under section 50 of the Freedom of Information Act 2000 (FOIA), the Information Commissioner must – subject to exceptions applying – serve a decision notice on a “public authority” when a requester applies for such a notice to be made. Public authorities are, in the main, listed in Schedule One to the Act (some are also designated by statutory instrument, or are public authorities by virtue of being owned by one or more other public authorities).

Under section 58 of FOIA, upon appeal to the Information Tribunal, the Tribunal must uphold the appeal, or substitute a replacement, if it considers that the decision notice is “not in accordance with the law”.

I’d like to ask this – if the decision notice gets the name of the public authority wrong, is it “not in accordance with the law”?

Because that is what appears to be the case with countless decision notices served on educational institutions.

Someone recently made an FOI request to ask why the Commissioner had changed his terminology, because some decision notices are addressed to, say, the “University of Exeter”, while others are addressed to the “Governing Body of the University of Exeter”. The answer given by the Information Commissioner’s Office is that was not a change of approach, but, rather, that the examples of the former were “due to an error”.

This in itself is pretty extraordinary, but it doesn’t look like it’s just a historic error which has now been corrected, because if one looks, for example, at the decision notices served this year on UCL, four have (presumably correctly) been served on the Council of the University of London, and three have (presumably incorrectly) been served on “University College London”. [UPDATE: Tony Mann, in the comments, draws my attention to what seems to be an error in the “correct” notices – the “Council of the University of London” is a different body to the “Council of University College London”.]

One has to ask two things: 1) are those three notices not in accordance with the law? 2) if the ICO knows that it is an error to serve a notice not using the correct terminology, why on earth is it still doing so?

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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