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Neutral Citation Number:	2010 UKUT 415 AAC
Reported Number:
File Number:	GI 2458 2010
Appellant:	Smartsource
Respondent:	Information Commissioner and a Group of 19 additional parties
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	23/11/2010
Date Added:	15/12/2010
Main Category:	Information rights
Main Subcategory:	Environmental information - general
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2014] AACR 10. Environmental information – whether a privatised water company is a “public authority” for the purposes of the Environmental Information Regulations 2004 The appellant was a specialist business that provided information about water and related data. It complained that various water companies had refused to disclose certain information. The companies had claimed, among other things, that they were not required to do so as they were not public authorities for the purposes of the Environmental Information Regulations 2004. The Information Commissioner upheld this view and sent the appellant a decision letter (not a formal decision notice) to say he had no jurisdiction to intervene. The appellant’s appeal to the First-tier Tribunal (F-tT) was transferred to the Upper Tribunal (UT). The issues before the UT were whether the UT had jurisdiction to hear an appeal against the Information Commissioner’s decision letter and, if so, whether the water companies were public authorities for the purposes of the 2004 Regulations – either under regulation 2(2)(c) of the 2004 Regulations, which would apply if they carried out functions of public administration, or regulation 2(2)(d), which would apply if they were under the control of another public authority, for example the Secretary of State or the Office of Water Services (OFWAT). Held, dismissing the appeal, that: 1. the fact that the Information Commissioner’s decision was set out within a letter, not an official decision notice, was not decisive. The letter contained a detailed legal analysis. The UT must have regard to the substance not the form. If water companies are public authorities then the Commissioner must rule on the complaint under section 50(4) of the Freedom of Information Act 2000; if they are not, then the Commissioner must rule the complaint to be outside his jurisdiction. In either case the UT had jurisdiction: see Sugar v BBC [2009] UKHL 9 and Article 6(1) of Directive 2003/4/EC (paragraphs 15 to 19); 2. in considering whether a water company is a public authority for the purpose of regulation 2(2)(c) the UT approved the reasoning of the Information Tribunal in Network Rail Ltd v Information Commissioner [EA/2006/0061 and EA/2006/0062] and Port of London Authority v Information Commissioner [EA/2006/0083]. It explained why it found only limited assistance in several court cases on the meaning of “public authority” in other contexts and approved and applied the multi-factor approach taken by the Information Tribunal in both of the above cases. The UT concluded that the water companies were not carrying out functions of public administration (paragraphs 43 to 78); 3. as to regulation 2(2)(d), the UT concluded that there was an important distinction between regulation and control and decided that for the purposes of the Water Industry Act 1991 the water companies were sufficiently removed from the apparatus of the State as to be not under its control. The UT also concluded that the notion of a hybrid public authority (as existed under section 6 of the Human Rights Act 1998) did not apply under the Environmental Information Regulations 2004 (paragraphs 94 to 104). Editor’s note: This case raised some of the same issues considered by the Court of Justice of the European Union in Case C-279/12 Fish Legal v the Information Commissioner reported as [2014] AACR 11
Decision(s) to Download:	GI 2458 2010-00.doc [2014] AACR 10bv.doc