Upper Tribunal clarifies the scope of “public authorities” under EIRs

24 Jul 2020

In its judgment in Information Commissioner v Poplar HARCA, the Upper Tribunal has clarified the scope of Regulation 2(2)(c) of the Environmental Information Regulations (EIRs), which provides that private entities can be considered to be “public authorities” and subject to the EIRs where they ‘carry out functions of public administration’.

The Upper Tribunal upheld the FTT decision that Poplar HARCA, as a private registered provider of social housing, is not subject to the EIRs. In order to fall within the definition, an entity must be ‘entrusted’ by legislation with performing its functions of public administration, as well as being ‘vested with special powers’ for that purpose. Moreover, the fact that an entity is subject to a regulatory regime laid down in statute is not sufficient to constitute an ‘entrustment’.

Given the widespread practice of out-sourcing by Government, as well as the privatisation of many sectors, the judgment has significant implications for the reach of the access to environmental information regime.

Laura Elizabeth John represented the Information Commissioner.

Read the case note commentary by Harry Gillow and the full judgment is here.