Latest updates - last updated 16 August 2022
16 August 2022
We have updated this guidance to clarify the conditions an organisation needs to meet to qualify as a public authority under reg. 2(2)(c). These conditions are: entrustment and the vesting of special powers. The update can be found under the “Who is a public authority under regulation 2(2)(c)” section, together with a new example from an Upper Tribunal decision.
We have also clarified the extent to which the EIR covers the Houses of Parliament. This update can be found in the ‘Do the EIR apply to us when holding information in a judicial or legislative capacity’ section.
About this detailed guidance
This guidance is written for the use by public authorities. It will help you to determine whether you are a public authority for the purposes of the Environmental Information Regulations 2004 (EIR). For some bodies, this will be straightforward. However, some parts of the definition are more complex. You should read this guidance if you need a deeper understanding of how the EIR definition of a public authority can apply to you.
This guidance is relevant only in relation to the environmental information you hold. If the information is not environmental, you need to consider whether you are a public authority for the purposes of the Freedom of Information Act 2000.
- What do the EIR say?
- Who is a public authority under regulation 2(2)(a)?
- Who is a public authority under regulation 2(2)(b)?
- Who is a public authority under regulation 2(2)(c)?
- Who is a public authority under regulation 2(2)(d)?
- Are Scottish public authorities subject to the EIR?
- Do the EIR apply to us when holding information in a judicial or legislative capacity?
The EIR give rights of public access to environmental information that public authorities hold.
Parliament introduced the Regulations to implement the European Council Directive 2003/4/EC in the UK. As a piece of EU-derived domestic legislation, the EIR is part of the body of retained EU law by virtue of section 2 of the European Union (Withdrawal) Act 2018.
The Regulations give the following definition of a public authority:
Subject to paragraph (3), “public authority” means –
a) government departments;
b) any other public authority as defined in section 3(1) of the Freedom of Information Act (the 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 person or 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.
Except as provided by regulation 12(10) a Scottish public authority is not a “public authority” for the purpose of these Regulations.
If you are a government department, you are a public authority under regulation 2(2)(a). The EIR does not define the term “government department”. Normally, the term covers the following:
- ministerial departments, ie those government departments which are led by ministers. For example, the Attorney General’s Office, the Department for Transport and the Ministry of Justice are ministerial departments;
- non-ministerial departments, ie departments headed by civil servants and usually having a regulatory or inspection function. The Crown Prosecution Service, HM Revenue & Customs and Ofsted are examples of non-ministerial departments; and
- non-departmental public bodies, ie all those bodies which operate at arm’s length from ministers, albeit having a role in the processes of national government. For example, the Advisory, Conciliation and Arbitration Service (ACAS), the Information Commissioner’s Office (ICO) and the British Council are non-departmental public bodies.
The term “government department” also includes executive agencies which departments have established to carry out specific executive functions. Examples of executive agencies include the Crown Commercial Service, the Planning Inspectorate and the Driver and Vehicle Licensing Agency (DVLA).
If you are an executive agency – technically – it is your parent department that is responsible for dealing with requests for information that people make to you. This is because, although administratively distinct, executive agencies usually have no independent legal status of their own. If you are an executive agency and you have your own access to information staff, you can deal with information requests directly. If you do not have an information access team, you should train all your staff to recognise information access requests. This enables them to promptly redirect requests to the relevant staff in the parent department.
In decision notice FS50657270, the applicant submitted a request for environmental information to the Animal and Plant Health Agency (APHA).
At para. 2, the Information Commissioner noted:
“As an executive agency of the Department for Environment, Food and Rural Affairs (“DEFRA”), APHA does not constitute a public authority for the purposes of FOIA and EIR and so this notice is issued to its parent Department.”
If you are a public authority listed in Schedule 1 of the Freedom of Information Act 2000 (FOIA), you are also a public authority for EIR purposes by virtue of regulation 2(2)(b). Schedule 1 may list authorities either individually or by a generic description. For example, the broad description of “a local authority within the meaning of the Local Government Act 1972” covers authorities falling under the umbrella of local government. However, some of them are listed separately, such as The Greater London Authority.
Schedule 1 can be amended either by an order under section 4 of FOIA or as a result of provisions in other legislation. If you are a newly constituted body and you have been added to Schedule 1 through one of these routes, you are also a public authority for the purposes of the EIR.
However, if you are a body designated as a public authority by order under section 5 of FOIA, you are not a public authority under the EIR. This is by virtue of reg. 2(2)(b)(ii), which excludes such bodies from the EIR’s scope.
Similarly, if you are an authority which falls within the meaning of regulation 2(2)(b)(i), you are not automatically a public authority for the purposes of the EIR. This is because Schedule 1 lists some bodies only in respect of particular information. For example, the BBC is not a public authority under the EIR by virtue of reg. 2(2)(b)(i) because the organisation is listed as a public authority under Schedule 1 only in respect of information held for purposes other than journalism, art or literature. Likewise, the Houses of Parliament are not public authorities within the meaning of reg. 2(2)(b)(i) because they are also only listed in Schedule 1 in respect to certain information. Nonetheless, they remain public authorities under the EIR by virtue of reg. 2(2)(c).
Paragraph six of Schedule 1 excludes some authorities from the scope of FOIA. However, these exclusions are disregarded for the purpose of the EIR. This means that, if you are an authority which falls within the categories that Paragraphs 6(a) and (b) covers, eg the special forces, you are a public authority for the purposes of the EIR.
The definition of public authority in section 6 of FOIA includes publicly-owned companies. This means that these companies are also public authorities for the purposes of the EIR.
Our guidance Public authorities under the Freedom of Information Act explains that you are likely to be a publicly-owned company if you are:
- wholly-owned by the Crown, including any government department;
- wholly-owned by the wider public sector, ie where all the shareholders are authorities listed in Schedule 1 of FOIA with the exception of bodies listed only in respect to certain information; or
- wholly-owned by the Crown and the wider public sector, ie where the company’s ownership is shared between government departments and other relevant public authorities listed in Schedule 1 of FOIA.
You are likely to be a public authority within the meaning of regulation 2(2)(c) if you are an organisation which performs functions of public administration. This definition includes the Houses of Parliament. It can also include privately owned companies, if they meet the relevant criteria in the regulation.
The exact meaning of regulation 2(2)(c) and when an entity falls within its scope is established through case law. The leading authority on the issue is the Upper Tribunal’s decision in Fish Legal vs IC & Others  UKUT 52 (AAC) (19 February 2015). In this case, the Tribunal considered whether a group of water companies were public authorities under the EIR and found that they were by virtue of regulation 2(2)(c).
The EIR implement the 2003/4/EC Directive on access to environmental information. In order to determine the correct approach to the interpretation of art. 2(2)(b) of the Directive, which regulation 2(2)(c) transposes into UK law, the UT referred the issue to the court of Justice of the European Union (CJEU).
The UK left the European Union on 31 January 2020, with the transition period ending on 31 December 2020 (“IP completion day”). Any relevant judgments of the CJEU up until the end of the transition period are considered retained EU case law by virtue of section 6 of the European Union (Withdrawal) Act 2018. Therefore, relevant CJEU case law – as it stood up until IP completion day – remains binding on UK lower courts (including the High Court). This applies until the Supreme Court or the Court of Appeal overturns it or amendments in the legislation override it.
The CJEU’s decision in Fish Legal C-279/12 (19 December 2013) introduced a dual functional test to determine whether an organisation is a public authority within the meaning of article 2(2)(b) of the Directive.
The key passage of the CJEU’s decision is paragraph 52, where the Court stated:
“[T]he second category of public authorities, defined in article 2(2)(b) of Directive 2003/4, concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which 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 which 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.” [emphasis added]
This means that there are two separate conditions an entity must meet in order to qualify as a public authority under regulation 2(2)(c). These are:
- entrustment under the applicable law with the ability to carry out public administrative functions; and
- the vesting of special powers for carrying out those functions.
Therefore, you are a public authority within the meaning of regulation 2(2)(c) if you meet the following cumulative requirements:
- Entrustment under the legal regime applicable to you. This means that you have been empowered with carrying out functions of public administration by virtue of a legal basis in a piece of legislation you are subject to. In other words, you have received an express delegation of statutory functions under the legislation applicable to you. For example, in the Fish Legal case mentioned above, the water companies in question were entrusted with the performance of public administrative functions by virtue of having been appointed as water and sewerage undertakers on the basis of the Water Industry Act 1991. For the performance of their duties, the companies were issued a licence, which could be withdrawn only under certain circumstances; and
- The vesting of special powers. This means that you have been given powers, created in law, that give you practical benefits which are not available to entities or persons whose relations are governed by the normal rules of private law. Private law governs and regulates relationships between individuals and organisations. This is opposed to public law, which governs the conduct of public bodies and legal persons. The rules of private law include:
- allowing a person to buy and sell property or license its use;
- voluntarily entering into contracts; and
- taking legal action after a breach of legal or contractual obligations.
In the Fish Legal case, the UT argued that the rules of private law are ‘facilitative in nature’. They allow the parties to enter a relationship willingly, to freely negotiate and agree terms or, alternatively, to refuse to engage in negotiations. In contrast to this, a special power gives an entity which has been granted it the ability to compel an action.
Special powers include not only the activities giving you a practical advantage, but also the means through which you can secure it.
Examples of special powers include, but are not limited to:
- Compulsory purchase, ie you can apply directly to the Secretary of State to force the sale of land.
- Requiring access to and use of private property, ie in order to carry out the administrative function you have been entrusted with, you have the power to access and use private land without the owner’s permission. Despite being subject to some legal oversight when exercising this power (eg you might need a judge’s approval), the power still gives you a practical benefit that an entity without the special powers does not enjoy.
- Creating new laws and criminal sanctions, ie the ability to apply directly to government to request the creation of new pieces of legislation or the introduction of new sanctions, in order to safeguard your assets or your ability to perform the administrative function you have been entrusted with.
- Special levels of influence or advisory roles, ie the ability – given to you by statute – to formally advise other public authorities or influence public policy. For the purposes of regulation 2(2)(c), the fact that the role has been conferred to you through legal provisions is what sets you apart from other entities having the ability to lobby or influence government through formal or informal means.
In decision notice FER0534921, the Commissioner found that the Verderers of the Forest of Dean were a public authority under the EIR because they have a statutory role in overseeing and influencing government policy affecting the forest.
Specifically, at para. 38, the Commissioner noted that, by statute, the function of Verderers is “to advise and make representations to other public bodies such as the Forestry Commission, local authorities and DEFRA and they have the power to influence decision making”.
When considering if you have special powers for the purposes of regulation 2(2)(c), there is one key question to think about. That is whether – for the performance of the functions of public administration you have been entrusted with – you have been granted one or a range of powers which give you a practical advantage relative to the rules under private law. Another factor to take into account is that it is the fact that the powers are available to you that matters, not whether you actually use them or how often you do so.
For example, if you have the power of compulsory purchase, you might not necessarily have to use it when negotiating with landowners. However, as the UT concluded in the Fish Legal case mentioned above, the fact that the power is available to you is likely to influence the outcome of the negotiations in your favour. This gives you a practical advantage over other buyers who do not have access to the power.
However, if the power has fallen into disuse or if you genuinely cannot enforce it, it is likely that it is not a special power for the purposes of regulation 2(2)(c) of the EIR.
In Information Commissioner v. (1) Poplar & Regeneration Community Association (2) People’s Information Centre  UKUT 182 (AAC), the Upper Tribunal (UT) decided that Poplar HARCA – a registered social housing association – was not a public authority within the meaning of regulation 2(2)(c).
The applicant had requested a list of the properties Poplar owned and had earmarked for redevelopment or disposal. They also asked for the cost and copies of the contracts of two redevelopment projects.
Poplar did not respond to the request on the basis that they were not a public authority under the EIR.
Building on the findings of the CJEU and of the UT in the Fish Legal case, the UT:
- agreed with the findings of the First-tier Tribunal (FtT) that Poplar had not been entrusted with the performance of functions of public administration by virtue of the applicable legal regime. Both tribunals acknowledged that, as a registered social housing provider, Poplar was subject to a stringent regulatory framework. However, the UT concluded that the mere existence of direct statutory regulation was not the same as entrustment. This was not enough to “convert a service provider into a public authority” [para. 83]; and
- concluded that Poplar did not have special powers for the performance of administrative functions. On this point, the UT disagreed with the FtT. The FtT had decided that Poplar had special powers because it had the ability to apply for orders in relation to anti-social behaviour and eviction. The FtT had also concluded that this power was not available to non-registered housing providers under the rules of private law. In contrast to these findings, the UT decided that the availability of this power mitigated a disadvantage, rather than giving Poplar a practical advantage compared to private landlords. This meant that it was not a special power.
As a result, the UT concluded that Poplar was not a public authority under the EIR because it did not meet the two necessary conditions – ie entrustment and the vesting of special powers – under regulation 2(2)(c).
In Cross v Information Commissioner and Cabinet Office,  UKUT 153 (AAC) (22 March 2016), the UT confirmed that the functions of public administration you have been entrusted with do not have to be exclusively environmental. However, they must include duties, activities or services relating to the environment.
Finally, if you fall within the scope of regulation 2(2)(c), you are a public authority in respect of all the environmental information you hold, not only in respect of the information held about the administrative functions you have been entrusted with. The CJEU clarified this in the Fish Legal case.
It’s likely you are a public authority within the meaning of regulation 2(2)(d) if you are under the control of another public authority as defined in regulations 2(2)(a), (b) or (c), and one of the following:
- have public responsibilities relating to the environment;
- exercise functions of public nature relating to the environment; or
- provide public services relating to the environment.
Being under the “control” of another public authority means that you have no genuine autonomy in deciding how you perform your functions because that is determined by the public authority that controls you. This means that you lack independence in your decision-making over how you carry out in practice the actions relating to the environment you are responsible for.
Being subject to stringent regulation or a high level of oversight does not necessarily mean that you are under the control of a public authority. Most businesses must operate in a legal environment, within the limits of a regulatory framework, and face sanctions when they fail to meet their legal obligations. For example, they may face closure of business operation or receive an order to take certain actions (eg a legally binding notice telling them to cease or change a particular activity). This is different from exercising control, because the government or a regulator in the relevant sector cannot determine how they have to operate to comply with existing regulations.
The key question to ask when considering whether you are under the control of a public authority is whether the authority’s level of influence is such that it takes away your freedom of action in how you operate in practice. It does not have to extend to every aspect of your day-to-day management.
In the Fish Legal case, the UT found that the water companies in question were not under the control of another public authority. As a result, the UT concluded that they were not public authorities within the meaning of regulation (2)(2)(d), falling within the scope of regulation 2(2)(c) instead.
The UT accepted that the Secretary of State and the sector’s regulator, OFWAT, were involved in the way the companies performed their duties. However, it noted that this merely showed “increased intensity of oversight at particular times and in respect of particular activities” (para. 148). In contrast to this, the UT argued that, in order for an organisation to be under the control of a public authority, it needs to show that “overall the business has no genuine autonomy of action” (para. 144) in the way it performs its functions relating to the environment.
When examining the Fish Legal case, the CJEU gave some examples of control. They defined it as “exert[ing] decisive influence on the entity’s action in that field” (para. 68). The CJEU said that control can take the form of the power to (para. 69):
- issue directions to the relevant organisation, including by exercising their rights as a shareholder;
- suspend or annul an organisation’s decisions;
- require the organisation to obtain prior authorisation from the public authority before making decisions;
- appoint or remove members of the organisation’s management board or the majority of them; or
- wholly or partly deny an organisation funding to such an extent as to jeopardise their existence.
You can be under the control of a public authority for only part of your wider functions. In these circumstances, you will be considered a public authority under regulation 2(2)(d) only in respect of the environmental information you hold for those functions that are under the control of a public authority.
In addition to being under the control of a public authority, you must also have public responsibilities, exercise functions of public nature or provide public services. These responsibilities, functions or services have to relate to the environment. The EIR does not define these terms and you should consider them in the context of your activities.
However, if you meet the condition of control, it is highly likely that you also meet one of the conditions under sub-paragraphs (i), (ii) and (iii). This is because you are likely to have public responsibilities, exercise functions of a public nature or provide a public service if a public authority is controlling the way in which you perform those actions. There is no need or basis for public control when a function exists within the realm of purely private commercial activity.
The final condition to be met to fall within the meaning of regulation 2(2)(d) is that any public responsibilities, functions of a public nature or services of public nature you perform must “relate to” the environment.
The expression “relating to” has a broad meaning. It means that a function can relate to the environment because of its environmental effects, regardless of whether it was conferred for environmental purposes.
If you are a Scottish public authority, you are not subject to the EIR as provided by regulation 2(3). However, you are likely to be subject to the Environmental Information (Scotland) Regulations 2004 instead. Scottish public authorities are defined in regulation 2(1) of the EIR which, in turn, refers to the definition in FOIA and the Freedom of Information (Scotland) Act 2002 (FOISA).
There is one exception to this general rule. This is if you are a company wholly-owned by a UK-wide public authority which falls within the scope of FOIA and the EIR.
A Scottish registered company becomes wholly-owned by an English public authority, which is a public authority under the EIR by virtue of being listed in Schedule 1 of FOIA.
Because it is wholly-owned by an English public authority subject to FOIA and the EIR, the company is subject to English – rather than Scottish – access to information legislation. This applies regardless of the fact that the organisation is based in Scotland.
Scottish public authorities are regulated by the Scottish Information Commissioner.
Regulation 3(3) of the EIR provides that you are not subject to the EIR if you are a public authority holding information for judicial or legislative purposes, even if you satisfy the criteria set out in regulation 2(2). For example, courts are not public authorities under the EIR. Regulation 3(3) also has the effect of restricting the application of the EIR to the Houses of Parliament. The Regulations do not apply to the extent that you are acting in a judicial or legislative capacity. You are subject to the EIR in respect of information you hold for purposes which do not relate to your judicial or legislative functions.
Regulation 3(4) of the EIR limits further the application of the EIR to the Houses of Parliament. This regulation provides that the EIR does not apply to both houses “to the extent required for the purpose of avoiding an infringement of the privileges of either House”. For example, the Regulations would not apply to certain environmental information held by a Select Committee and subject to Parliamentary Privilege.
For further information read our guidance on: