Water Companies not Covered by the UK Environmental Information Regulation

I thought this might be interesting. The UK Information Tribunal decided that privatised water utilities are not public bodies under the Environmental Information Regulation (EIR). The EIR is a transposition of the Aarhus Convention and water utilities are supposed (in theory, at least) to have been covered by it. Full judgement is available at the UNECE website here . The short article below is from Shepherd & Wedderburn. This decision has been criticized by regulatory experts.

There are some initiative to make English water utilities covered by the FoI, through a designation by the Secretary of State under s.5 of the UK FoI Act. This initiative were not successful on the latest s.5 designation, but there are opportunities that it might be covered in the future designation. Hence, at the moment, English water utilities are covered neither by the FoI Act nor the EIR. 

It would be interesting to have the case above brought before the European Court of Justice.


The Upper Tribunal (Administrative Appeals Chamber), inSmartsource Drainage & Water Reports Limited ("Smartsource") v The Information Commissioner, has upheld the decision of the Information Commissioner ("IC") and found that privatised water and sewerage companies do not fall within the definition of public authorities for the purposes of the Environmental Information Regulations 2004 ("the Regulations").
The scope of determining what is a public authority under the Regulations has always been wider than under the Freedom of Information Act 2000 ("FOIA"). This case will therefore also be of interest to privatised utility companies and other regulated bodies, as it looks at the issues of control and providing functions of public administration in relation to determing what is a public authority.
Under the Regulations, the public has a right to request environmental information from any public authority. The definition of "public authority" includes: a government department; all organisations covered under the FOIA; or any other body or person that carries out functions of public administration or is under the control of a public body and exercises environmental duties.
Smartsource made a request for information from 16 different privatised water and sewerage companies under the Regulations. All of the water companies refused to provide the information on the grounds that they were not public authorities for the purposes of the Regulations.