WATER UTILITY COMPANIES NOT ‘PUBLIC AUTHORITIES’ UNDER THE EIR

November 25th, 2010 by Anya Proops

The Upper Tribunal has this week handed down an important decision on the question of whether privatised water utility companies are ‘public authorities’ for the purpose of the Environmental Information Regulations 2004 (EIR): Smartsource v IC & 19 Water Companies (case no. GI/2458/2010). The background to the appeal was that Smartsource had submitted near identical requests for disclosure of information to some 19 water utility companies. It was not in dispute that the requests fell to be addressed under the EIR. The companies refused to provide the requested information on the basis that they were not ‘public authorities’ for the purposes of r. 2(2) EIR and, hence, were not subject to the disclosure obligations provided for in r. 5 EIR. The Commissioner rejected Smartsource’s complaint about the refusal on the basis that he accepted that the companies were not public authorities under r. 2(2). Smartsource appealed the Commissioner’s decision to the tribunal. The importance of the issues at stake in the case resulted in the appeal being transferred to the Upper Tribunal. The central issues which the Upper Tribunal was called upon to determine were as follows: (1) did the companies ‘carry out functions of public administration’ such that they fell within limb 2(2)(c) of the r. 2 definition of public authority; (2) alternatively, were they ‘under the control’ of a relevant public authority such that they fell within limb 2(2)(d) of the r. 2 definition.

With respect to the first issue, the Tribunal held that the companies did not carry out functions of public administration. It reached this conclusion applying a multifactoral approach akin to the approach adopted in the earlier cases of Network Rail v IC (EA/2006/0061) and Port of London Authority v IC & Hibbert (EA/2006/0083). Notably, the Tribunal rejected arguments advanced by Smartsource that the companies fell within limb 2(2)(d) of the definition because they: were appointed as statutory undertakers; were subject to a range of conditions imposed under statute; were subject to a comprehensive regulatory regime; were unable to choose their own customers or set their own prices; were obliged to provide a universal service; and would be subject to State intervention in the event that they failed. With respect to the second issue, the Tribunal held that that the companies were not ‘under the control’ of a relevant public authority for the purposes of r. 2(2)(d). In reaching this conclusion, the Tribunal accepted arguments advanced on behalf of the Commissioner and the companies that: the concept of ‘control’ in this context meant something more than that the body in question was merely subject to a stringent regime of statutory regulation; the aim of r. 2(2)(d) was to capture State/Executive functions in all their various guises and not the activities of privatised companies of the sort which were in issue in the instant case.

Importantly, the Tribunal also rejected ‘hybridity’ arguments to the effect that a body can be a public authority under the EIR for some purposes but not for others. According to the Tribunal, the way in which r. 2 was formulated meant that the body either was or was not a public authority (cf. the approach adopted in Port of London v IC).

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COUNCIL ENTITLED TO WITHHOLD PROPERTY DEVELOPER’S FINANCIAL MODEL: BRISTOL CITY DISTINGUISHED

October 6th, 2010 by Robin Hopkins

Bath & North East Somerset Council v IC (EA/2010/0045) is the latest application of the ‘commercial confidentiality’ exemption under regulation 12(5)(e) EIR to a request for information on agreements between a local authority and a property developer.

 

The council and the developer entered into discussions about building homes on 70 acres of brownfield land within a UNESCO World Heritage Site. Only a small proportion of this land was owned by the council, the rest being owned by the developer, who would also bear 100% of the risk of the project. The proposed £500m project would deliver 50% of the council’s new homes target for the next 10 years – the council was therefore acting as both beneficiary and planning authority.

 

With a potential section 106 agreement in mind, the council and developer reached a co-operation agreement, whereby the developer taking an ‘open book’ approach, i.e. making its financial models and reports available to the council. This was the information at issue before the Tribunal.

 

The Tribunal found that the public interest favoured maintaining the exemption. In so doing, it distinguished this case from Bristol City Council v ICO and Portland and Brunswick Squares Association (EA/2010/0012) – on which, see my post here and article in the Local Government Lawyer here – where disclosure of the information was ordered. Bristol City concerned a viability assessment designed to show that a hypothetical scheme was not viable; that assessment used generic, industry-level pricing. In contrast, this case concerned detailed and developer-specific financial information about an actual proposal. The commercial sensitivities differed materially.

 

Disclosure of such information, held the Tribunal, would lead to the developer refusing to provide any further ‘open book’ information, which would stymie this particular development and dissuade developers from future ‘open book’ co-operation. The Tribunal was also impressed by the availability of alternative scrutiny mechanisms in this case. It was less impressed with the council’s argument that disclosure of the disputed information would damage its reputation with developers.

 

The Tribunal did order the disclosure of consultants’ reports and emails, with commercially sensitive information redacted. The developer’s financial model however, could not be redacted, and could be withheld. On this last point, a notable practical issue emerged: both the council and the Commissioner had interpreted the request as being for a static version of the developer’s financial model. A ‘live’ model – i.e. a spreadsheet containing visible formulae – is another matter. The Tribunal warned that in future cases, clarification should be sought from the requester.

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ACCESSING PROPERTY SEARCH INFORMATION – NEW HIGH COURT JUDGMENT

March 23rd, 2010 by Anya Proops

Last week I posted on a judicial review claim which was then being heard in the High Court on the question of access to property search information held by local authorities. Judgment was handed down in the case last Friday – OneSearch Direct v City of York Council [2010] EWHC 590 (Admin). The case involved an attempt by a property search company (OneSearch) to gain direct access to unrefined property records held by a local authority. The advantage to OneSearch of gaining such direct access is that it would not have to pay to receive the relevant property search information through what is commonly known as the ‘CON29R’ system. The CON29R system typically entails local authorities providing answers to property search enquiries (on a form known as the CON29R form) and then charging for the provision of that information under the Local Authorities (England) (Charges for Property Searches) Regulations 2008. When OneSearch’s request for direct access to the records was refused by the council, the company brought a claim for judicial review against the council. In that claim, which was treated as a test case, OneSearch argued that denying access to the unrefined records was unlawful having regard to the statutory purpose and intention underlying the relevant local authority legislative scheme. Hickenbottom J rejected OneSearch’s claim. He held that it was entirely lawful and in accordance with the statutory scheme for the council to opt to provide the relevant property search information through the CON29R system. This judgment will come as a blow to those property search companies who see the CON29R system as a costly system which unjustly allows local authorities to exploit their monopolistic position as controllers of property search records. Notably, the rights of access available under the Environmental Information Regulations 2004 were not relied upon by OneSearch in this case – cf my recent post on the case of East Riding Council v ICO & York Place. 11KBW’s Jason Coppel acted on behalf of the council.

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ACCESS TO PROPERTY SEARCH INFORMATION – TEST CASE IN THE ADMINISTRATIVE COURT

March 18th, 2010 by Anya Proops

This has been a particularly busy week so far as the law relating to accessing property search information is concerned. On 15 March, I blogged about a new Information Rights Tribunal judgment on the application of the Environmental Information Regulations 2004 (EIR) to requests for property search information – see my post. On 17-18 March 2010, the Administrative Court (Hickinbotham J) heard a test case judicial review of the policy of City of York Council on access to and charges for property search information under the Local Authorities (England) (Charges for Property Searches) Regulations 2008. The Claimant, Onesearch Direct Limited, maintains that all local authorities have an obligation under the 2008 Regulations to grant it direct access to their property records, and to charge no more than the cost of doing so. It is understood that Onesearch are pursuing their claim under the 2008 Regulations rather than the EIR in part because of the administrative inconvenience of having to wait up to 20 days to receive a response under the EIR (see r. 5(2) EIR). Judgment is expected on Friday 20 March 2010. Jason Coppel represents the Council.

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CHARGING FOR PROPERTY SEARCH INFORMATION – IMPORTANT NEW TRIBUNAL JUDGMENT

March 15th, 2010 by Anya Proops

Anybody who has ever bought a property will know that property searches must be conducted as part of the process. Originally, it was the buyer who had to conducted the searches. However, following the introduction of the HIPs regime in 2007, it is now the seller’s responsibility. In tandem with the introduction of the HIPs regime, the Government introduced the Local Authorities (England) (Charges for Property Searches) Regulations 2008, which empower local authorities to charge for making property search information available to members of the public. However, importantly, those Regulations have to be applied in a way which does not, in effect, cut across the access regime afforded under the Environmental Information Regulations 2004 (EIR). This means that, in practice, it will often be the EIR which governs whether and to what extent local authorities can charge for making property search information available

In the recent case of East Riding of Yorkshire v IC & York Place, the Tribunal was called upon to determine the question of whether, on an application of the EIR, particular property search information should have been made available to a property search company free of charge. More particularly, the Tribunal had to determine whether the local authority: (a) was required to allow the company to inspect the information free of charge at the local authorities premises; or (b) was entitled to refuse inspection and make the information available by way of hard copy documents, for which a charge could be levied under r. 8 EIR. After having made a number of findings as to the weakness of certain aspects of the council’s evidence, the Tribunal went on to hold that the council ought in fact to have permitted the company to inspect the relevant records free of charge. This judgment is important both because of its careful examination of the principles relating to charging under the EIR and because of its implications for local authority charging regimes in respect of property search information. 11KBW’s Jane Oldham appeared on behalf of the council and Anya Proops appeared on behalf of the Information Commissioner. 

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EIR EXCEPTIONS – WHAT DOES IT ALL ADD UP TO?

January 28th, 2010 by Timothy Pitt-Payne QC

In Ofcom v Information Commissioner [2010] UKSC 3 the Supreme Court was asked to consider how public authorities should approach the exceptions to disclosure set out in the Environmental Information Regulations 2004 (EIR).  Most of these exceptions are subject to a public interest test.  The public interest in maintaining an exception has to be measured against the public interest in disclosure.  Unless the public interest in maintaining the exception outweighs the public interest in disclosure, the information must be disclosed.

But what happens if there are a number of exceptions in play?  Do you look at each exception in turn, assessing the public interest in maintaining that exception as against the public interest in disclosure?  Or do you aggregate all of the exceptions, assess the combined public interest in maintaining them, and measure that combined interest against the public interest in disclosure?

In the Ofcom litigation, the Court of Appeal had decided in favour of aggregation.  The Supreme Court was inclined (by a 3-2 majority) to uphold that decision.  But the Supreme Court also recognised that the answer was unclear, and depended on the construction of Directive 2003/4/EC.  So the Court has referred the issue to the European Court of Justice.

There is now a practical difficulty:  in cases where the aggregation point might make a difference to the outcome, what should the Tribunal do? Should it follow the Court of Appeal?  Should it wait for the ECJ?  Or should it reach its own view on how the legislation should be interpreted?  And Ofcom is an EIR case: what about aggregation under FOIA?

In practice nobody will want the outcome of their case to turn on a point that may not be resolved for some years.  It will be much more attractive for parties to argue that aggregation makes no difference to the outcome of their case.

 

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OFCOM & THE AGGREGATION OF PUBLIC INTEREST CONSIDERATIONS: UPDATE

November 9th, 2009 by Anya Proops

On 17 November 2009, the Supreme Court will hear the Information Commissioner’s appeal against the Court of Appeal’s judgment in Office of Communications v Information Commissioner [2009] EWCA Civ 90 (Ofcom). In Ofcom, the Court of Appeal held that, when multiple exceptions were engaged in respect of particular information, the public interest test provided for under regulation 12(1)(b) of the Environmental Information Regulations 2004 would operate so as to entitle the public authority to aggregate all the different public interest factors relating to all applicable exceptions in a single, compendious public interest balancing exercise. This judgment was controversial, not least because it represented a departure from the well-established approach of tailoring public interest considerations to the individual exception in issue. Notably, in a recent Information Tribunal decision, the Tribunal highlighted some of the practical difficulties posed by the adoption of the aggregate approach to the public interest test (South Gloucestershire v Information Commissioner (EA/2009/0032), §§48-52). 11KBW’s Clive Lewis and Akhlaq Choudhury will be appearing on behalf of the Commissioner in the Supreme Court.

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DISCLOSING CONSULTANTS’ REPORTS UNDER THE EIR

October 21st, 2009 by Anya Proops

Yesterday, the Information Tribunal promulgated an important decision on the application of certain exceptions in the Environmental Information Regulations 2004 (EIR), South Gloucestershire Council v Information Commissioner & Bovis (EA/2009/32). The case concerned an application made by a developer (Bovis) for disclosure of information contained in a number of consultants’ appraisals. The appraisals had been commissioned by the council in respect of a proposed section 106 planning agreement. The agreement in turn related to a major development which Bovis was proposing to undertake in the council’s area. The appraisals had been commissioned in essence in order to assist the council in its negotiations with Bovis in respect of the section 106 agreement. The council had refused disclosure of some of the information in the appraisals, which largely consisted of financial information, on the basis that that information fell within the exceptions provided for under r. 12(4)(e) EIR (the internal communications exception) and r. 12(5)(e) EIR (the confidential/commercial information exception). The Commissioner held that neither of these exceptions was engaged.

 

On appeal by the council, the Tribunal held that the circumstances of the case were such that the council had not been entitled to treat the appraisals as an ‘internal communication’ for the purposes of r. 12(4)(e) (cf. the Tribunal’s decision in Secretary of State for Transport v Information Commissioner (EA/2008/0052): draft report on transport policy prepared by independent third party was an ‘internal communication’, particularly in view of the extent to which the third party had been ‘embedded’ in the public authority). However, the Tribunal went on to allow the council’s appeal on the basis that the information in the appraisals did constitute confidential, commercial information falling within the ambit of r. 12(5)(e). The Tribunal also held that the public interest balance weighed in favour maintaining the exception and, accordingly, that the council had been lawfully entitled to withhold the requested information.

 

In reaching the conclusion that r. 12(5)(e) was engaged in respect of the information, the Tribunal rejected arguments advanced by the Commissioner that r. 12(5)(e) would only be engaged in respect of confidential information where the duty of confidence was owed by the public authority to a third party. It held that r. 12(5)(e) applied equally to the authority’s own confidential information. Notably, in finding that the public interest balance weighed in favour of the information being withheld, the Tribunal relied in particular on the volume of information which the council had already disclosed relating to the section 106 process and the planning process more generally.

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GOVERNMENT REPORT ON APPLICATION OF ENVIRONMENTAL INFORMATION DIRECTIVE

August 14th, 2009 by Anya Proops

Member States of the EU are subject to an obligation to report to the European Commission on the application of European Directive 2003/4/EC on public access to environmental information. Last week, the UK Government submitted its report to the Commission. The report highlights the Government’s experience of the application of the Environmental Information Regulations 2004 since they came into force in the UK on 1 January 2005. It is worth noting in particular Annex 1 to the report which contains a summary of tribunal decisions on the definition of ‘environmental information’ for the purposes of the Regulations. The Government is inviting comments on the report from members of the public.

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House of Lords Grants Permission in Ofcom

August 3rd, 2009 by Anya Proops

Last month the House of Lords granted the Information Commissioner permission to appeal the Court of Appeal’s judgment in Office of Communications v IC [2009] EWCA Civ 90 (‘Ofcom’). In Ofcom, the Court of Appeal considered the question of how the public interest test under regulation 12(5)(b) of the Environmental Information Regulations 2004 (‘EIR’) applied where a number of different exceptions were engaged in respect of particular requested information. It held that, rather than conducting discrete public interest balancing exercises under each individual exception, the public authority could effectively bundle all the public interest considerations relevant to the applicable exceptions into a single compendious public interest balancing exercise. The Commissioner has now been granted permission to appeal the judgment to the newly constituted Supreme Court. 11KBW’s Ahlaq Choudury is acting on behalf of the Commissioner.

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