The public/private divide in the Environmental Information Regulations 2004
Laura Elizabeth John appeared for the Information Commissioner
“The laws are no longer fit for purpose”, reported the Information Commissioner to Parliament last year – “In the modern age, public services are delivered in many ways by many organisations. Yet not all of these organisations are subject to access to information laws.”
In a judgment that will be of interest to a number of entities, particularly in the transport and utilities sectors, the Upper Tribunal in IC v Poplar Housing Association  UKUT 182 (AAC) has provided a boost to this analysis, upholding a narrow definition of “public authority” under Regulation 2(2)(c) of the Environmental Information Regulations (“EIR”) that will exclude many organisations from the scope of the regime.
The case concerned whether a housing association, Poplar, was a “public authority” within the meaning of Article 2(2)(c) of the EIR. Poplar was a community benefit society set up with the transfer of some of the London Borough of Tower Hamlet’s housing stock. Poplar was registered with the Regulator of Social Housing as a private registered provider of social housing, and owned approximately 13% of the social housing in Tower Hamlets. As a private registered provider, Poplar had certain statutory powers not available to non-registered landlords, designed to allow it to manage tenants without the need to resort to evictions, for example through seeking injunctions against anti-social behaviour or seeking parenting orders or the grant of a family intervention tenancy.
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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.