Fish Legal GIA 979 2011
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 19 February 2015 |
| Neutral Citation | 2015 UKUT 52 AAC |
| Subject Matter | Information rights |
| Respondent | IC, United Utilities, Yorkshire Water, SoS for Environment Food and Rural Affairs |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 979 2011 |
| Appellant | Fish Legal |
[2015] AACR 33
(Fish Legal and Emily Shirley v Information Commissioner, United Utilities plc, Yorkshire Water Services Ltd, Southern Water Services Ltd and the Secretary of State for the Environment, Food and Rural Affairs
[2015] UKUT 52 (AAC))
Mr Justice Charles CP GIA/979/2011
Judge Jacobs GIA/980/2011
Judge Gray
16 February 2015
Information rights – whether body is public authority a matter for appeal not judicial review – water companies are public authorities – application of test in Case C-279/12; [2014] AACR 11
The appellants’ individual requests for information were refused by the water companies concerned on the grounds that they were under no duty to provide information under the Environmental Information Regulations 2004 (EIR). The appellants complained to the Information Commissioner who decided that the water companies were not public authorities for the purposes of EIR. The appellants’ appeals to the First-tier Tribunal (F-tT) were dismissed on the basis of the Upper Tribunal’s (UT) decision in Smartsource Drainage and Water Reports Ltd v the Information Commissioner and a Group of 19 Water Companies [2010] UKUT 415 (AAC); [2014] AACR 10. The appellants appealed against the F-tT’s decisions and the UT decided to seek guidance from the Court of Justice of the European Union (CJEU) on the application of Directive 2003/4/EC in cases involving public access to environmental information. The CJEU identified two criteria for deciding if a body was a public authority: (1) whether it was vested with special powers beyond private law powers (the special powers test) and (2) whether it was able to determine in a genuinely autonomous manner the way in which it performed its functions in the environmental field (the control test) (see Case C-279/12). A three-judge panel of the UT was appointed to hear the appeals together with two separate judicial review applications by the Secretary of State and Fish Legal. It was submitted on behalf of the Secretary of State that the proper route for deciding whether a body was a public authority under the Freedom of Information Act 2000 (FOIA) and EIR was by way of judicial review proceedings and the decision of the House of Lords in British Broadcasting Corporation v Sugar [2009] UKHL 9; [2009] 1 WLR 430 was cited in support. Accordingly, the issues before the UT were whether the public authority issue was to be properly decided by the F‑tT or by judicial review, and whether the respondent companies were public authorities for the purposes of EIR.
Held, allowing the appeals and refusing the judicial review applications, that:
- the Commissioner had jurisdiction both to investigate and decide whether a body was a public authority. That decision was one made on the application under section 50 of FOIA and so the document giving notice of that decision was a decision notice served under section 50(3)(b). Sections 50 and 51 were predicated upon the existence of the three key concepts of request, information and public authority on which the legislation was based. But that did not deprive the F-tT of jurisdiction to deal with those issues. Section 50(1) merely described the matters that might be the subject of an application under that section and so a complaint about the way the specific request had been dealt with; it did not prescribe conditions that must be met before an application could be made and determined by the Commissioner. When section 50(1) and section 51 referred to an application, they referred to a complaint to the Commissioner that any requirement of the legislation had not been met and the Commissioner could address all the reasons advanced as to why this had not occurred, including the assertion that FOIA did not apply because the request was not made to a public authority (paragraph 55)
- under the special powers test the issue was whether the powers gave the body an ability that conferred on it a practical advantage relative to the rules of private law. The water companies held powers regarding compulsory purchase, the making of byelaws, of entry into and taking action on land, the imposition of prohibitions on water usage and the exercise of a monopoly. Such powers were sufficient, collectively in themselves and as examples of powers of the same type, to satisfy the special powers test and the companies were public authorities for the purposes of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Directive 2003/4/EC and EIR (paragraphs 102 to 130)
- the control test was a demanding one that few commercial enterprises would satisfy. The companies’ functions might be fixed by law and by their Licences, but the test was concerned with the way in which they exercised those functions. They were subject to stringent regulation and oversight and there was the potential for extensive involvement and influence over the way in which they performed their services. But the evidence fell far short of showing that the Secretary of State, the Water Services Regulation Authority and the Environment Agency influenced their performance, individually or collectively, whether by actual intervention or by more subtle forms of influence, to such an extent that the companies had no genuine autonomy of action (paragraph 155)
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
TABLE OF CONTENTS
In electronic copies of this decision, CTRL-left click on any entry in this Table will jump to the relevant section.
Decisions of the Upper Tribunal (Administrative Appeals Chamber)
Reasons for Decision..........................................................
I PRELIMINARY MATTERS
A. Abbreviations
B. The issues
C. The proceedings and their history
II THE JURISDICTION ISSUE
A. Introduction
B. The legislation
C. The arguments
D. The First-tier Tribunal’s jurisdiction
E. The Commissioner’s jurisdiction
The argument
Why we reject the Secretary of State’s argument
Sugar
Conclusion
III THE PUBLIC AUTHORITY ISSUE
A. The protection of the environment in the EU
B. The legal structure of the water industry
Background
WIA
The companies’ corporate structure and governance
Functions of OFWAT
Duties of Water and Sewage Undertakers
Powers of Water and Sewage Undertakers
Other Sources of Information
The Water Act 2014
C. The definition of public authority
D. The proper role of the Upper Tribunal
E. The application of the CJEU’s tests
F. Special Powers
The CJEU judgment
Powers
Hunting the Snark
The rules of private law
Susceptible to judicial review
Foster
Conclusion
G. Control
The CJEU judgment
Authorities
Corporate control
Autonomy and influence
The case against the companies
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