Power utilities caught by expanding scope of environmental information rights

The Information Commissioner determines that private companies holding an electricity generation licence or a gas or electricity supply licence are ‘public authorities’

21 February 2020

Access to environmental information can be a very powerful tool and those seeking public disclosure of environmental information – for whatever purpose – are incentivised to push the boundaries of the information rights regime. This is well illustrated in a recent decision of the Information Commissioner on whether a utility operating the power sector – E.ON UK plc – is obliged to disclose environmental information (decision reference FER0678164, 29 January 2020).

Access to Environmental Information

The regime governing the rights to environmental information is set down in the Environmental Information Regulations 2004 ('the EIR'). On its face, the regime appears to be similar to its more famous sister regime, the Freedom of Information Act 2000 ('FoIA'), but its origins, and therefore its application, are quite different. FoIA is a domestic regime, delivering on a manifesto promise of the New Labour Government of 1997. In contrast, the EIR brings into domestic law an international obligation contained within the 1998 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ('the Aarhus Convention'). The two regimes are mutually exclusive: if the request for access to information concerns “environmental information” then the request is governed by the EIR at the exclusion of FoIA. 

Who is a Public Authority?

One of the principal – and most striking – differences between FoIA and the EIR is that, whereas FoIA helpfully provides a Schedule listing public authorities (by name, or by type) that are subject to its remit, and who can therefore prepare accordingly, there is no such definitive list under EIR. Further, in accordance with the principles under the Aarhus Convention, the EIR has an expansive definition of ‘a public authority’. Under regulation 2(2)(c) of the EIR, a public body is any body or person that carries out 'functions of public administration'.

This is a deliberate aspect of the Aarhus Convention and, as the Aarhus Implementation Guide makes clear, it fulfils a policy ambition to avoid access to environmental information being frustrated through the privatisation or delegation of public services or activities to private bodies. The approach in the EIR, to have a functional definition of public bodies rather than a list, is also deliberate, because the situation is dynamic and prone to change.

This does, of course, create significant uncertainty for private companies exercising administrative functions that might serve a public benefit. As the E.ON decision demonstrates, private sector companies might not consider themselves to be covered until a decision of the Commissioner determines that they are.

The E.ON decision: Utilities holding licences for electricity generation, or electricity or gas supply, are public authorities

The request for information that led to the E.ON case was first lodged as far back as the Spring of 2017 and has a long procedural history (it has already passed through the First Tier Tribunal and Upper Tribunal on a preliminary issue). The request for information concerns the Rampion Offshore Windfarm and was lodged by Fish Legal, a membership organisation representing the interests of fisheries and anglers. 

The question for the Commissioner was a narrow one: is E.ON UK plc a public authority? The Commissioner decided that it is. Her reasoning was as follows:

  • E.ON UK plc held a electricity generation licence under the Electricity Act 1989 at the time of the request and held (and continued to hold) both an electricity supply licence under the Electricity Act 1989 and a gas supply licence under the Gas Act 1986
  • The generation of electricity, and the supply of both electricity and gas, are public services, carried out in the public interest, and with an impact on the environment
  • That, by virtue of holding the licences, the licence holder was vested with special powers, beyond the normal rules of private law (for generation licence holders, the powers included compulsory purchase and acquiring wayleaves, and for the supply licences, there were powers to obtain warrants for access to property through the Magistrates’ Court)
  • Stepping back and considering it in the round (the ‘cross-check’), the Commissioner concluded that E.ON UK plc (and by extension all those operating under generation and supply licences) we public authorities on the basis that 'the supply of gas and electricity is of such importance that if their supply could not be secured through the private sector, the state would be compelled to step in'.

As such, E.ON UK plc (and all holders of generation and supply licences) are deemed to be ‘public authorities’ and subject to the information disclosure requirements of the EIR.

This decision may yet be appealed to the First Tier Tribunal (the history of this matter confirms that E.ON is not against appealing the Commissioner’s decisions) but, unless and until the First Tier Tribunal (or a higher authority) comes to a different conclusion, all generation and supply licence holders are going to fall within the remit of the EIR. It is important that all such licence holders ensure that they understand the EIR regime and put together policies and protocols that reflect their EIR obligations.

Burges Salmon has extensive experience advising on the EIR for public authorities, for private companies seeking to protect confidential business information and for applicants seeking access to information. For further information on the EIR, please contact Simon Tilling or your usual Burges Salmon contact.

Key contact

Simon-Tilling--250px x 250px 72dpi - web

Simon Tilling Partner

  • Head of Environment
  • REACH, Chemicals and Product Stewardship
  • Energy, Power and Utilities

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