The leading authority on the meaning of “public authority” under regulation 2 of the EIR is Smartsource v IC and a Group of 19 additional water companies [2010] UKUT 415 (AAC). In that case, the Upper Tribunal found that the water companies were not public authorities for EIR purposes. Smartsource has been applied in, for example, Bruton v IC and Duchy of Cornwall and Montford v IC and BBC.

The issue has returned to the Upper Tribunal in Fish Legal v IC [2012] UKUT 177 (AAC), again in the context of water companies. As the Upper Tribunal has noted, however, the principles are relevant to other privatised, regulated industries that deliver a once publicly-owned service: electricity, gas, rail and telecoms. As the EIR implement European legislation, the meaning of “public authority” has been referred to the ECJ, which has recently published the questions it will be considering.

These involve the meaning of ‘performing public administrative functions under national law’ (is the applicable law and analysis purely a national one? If not, what EU law criteria should be used?), what does ‘control’ mean (in the context of one person/body controlling another) and does an ‘emanation of the state’ necessarily come within the definition? Another crucial issue is the so-called ‘hybrid authority’ question: if a body falls partly within the definition, do EIR rights apply only to those parts (functions, activities etc) that do, or to the whole of the person/body?

Those are, of course, paraphrases. The actual questions can be found here. The ECJ’s answers will be enormously important to information access rights in the UK.

11KBW’s Rachel Kamm represented the Information Commissioner before the Upper Tribunal.

Robin Hopkins