Tag: Smartsource

Meaning of ‘public authority’ under the EIRs: ECJ to consider

Posted on | by Robin Hopkins

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

The BBC in the Tribunal: not a public authority under the EIR; strong arguments for disclosure of licence fee legal advice

Posted on | by Robin Hopkins

In Montford v IC and BBC (EA/2009/0114), the appellant had asked the BBC various questions about its expenditure in relation to Cambridge Media and Environment Program, which researched and planned a programme of seminars that had been running since 2005 at which BBC editorial staff discussed issues such as environmental change and world development, with the objective of improving BBC journalism in those areas.

The BBC is a public authority within Schedule 1 of FOIA only within the following parameters: “The British Broadcasting Corporation, in respect of information held the purposes other than those of journalism, art or literature”. The Supreme Court addressed this “derogation” from FOIA in Sugar v BBC [2012] UKSC 4: see our post here. Montford concerned not only the application of Sugar to this request, but also an argument that, given the subject matter of the request and the BBC’s activities, the BBC was a public authority within the meaning of regulation 2 of the EIR.

The Tribunal considered the leading cases on the latter point (Smartsource, Port of London, Network Rail, Bruton) and – applying the multifactorial approach from Smartsource – concluded that the BBC was not a public authority under the EIR. Further, the requested information was not environmental: that requires more than a remote link to the environment, and in the present case there was no link. It was therefore FOIA which applied, and Sugar meant that the requested information fell within the derogation. The BBC therefore did not have to provide it.

The BBC also featured – though not as a party – in another Tribunal decision of late. Crawford v IC and DCMS (EA/2012/0018) concerned the conclusion of the ‘BBC settlement’, ie the funding arrangements (freezing of the licence fee, BBC taking over World Service funding and so on) agreed with extraordinary speed between Jeremy Hunt and BBC Trust chair Michael Lyons in October 2010. The requester – a BBC journalist – sought information about that agreement. By the time of the hearing, the only disputed information was legal advice, which fell within section 42(1) of FOIA. The argument focuses on the public interest.

As readers will be aware, information falling within section 42(1) has very rarely been ordered for disclosure by the Tribunal. One gets the sense from the Tribunal’s decision in Crawford that the appellant here came closer than most to getting the information he sought.  The Tribunal noted the unprecedented speed with which negotiations about matters of great public interest were concluded in 2010. In the circumstances, there were “weighty factors in favour of disclosure of any information which can shed light on how this speedy settlement which affects so many people was reached. In other words there is a significant public interest in transparency and accountability in this case”. The stumbling block, however, was that the disputed legal advice shed only limited light on those concerns. Disclosure was thus not ordered. The Tribunal concluded on a note of sympathy with the requester:

“We would observe that we can understand why Mr Crawford has pursued this matter to a hearing despite disclosure of most of the information originally requested. It seems to us, that despite the exceptional nature of the CSR, the haste of the negotiations and lack of record of what took place means that Mr Crawford has quite understandably had to challenge the DCMS into providing whatever contemporaneous record there might be to help him in his journalist pursuit to provide the public with the facts of this unprecedented Licence Fee Settlement with its far reaching effects.”

Robin Hopkins