The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
The Anthony Collins Solicitors Data Protection and Information Law team have found that the status of housing associations concerning the Environmental Information Regulations (EIR) has been a hot topic with clients in recent weeks.
This is due to conflicting decisions coming from the Information Commissioner (IC) and, more recently, the First-tier Tribunal (Information Rights) (FTTIR).
By way of introduction, the EIR provides public access to environmental information held by public authorities. The EIR covers public authorities as defined by the Freedom of Information Act 2000 in England, Northern Ireland and Wales. The public authorities listed in Schedule 1 of the Act are subject to the EIR. Under regulation 2(2)(c), the EIR also covers organisations that carry out ‘functions of public administration’. It is the application of this provision by the IC and the FTTIR that has given rise to uncertainty.
The first case to consider is Richmond Housing Partnership, 11 July 2018 (Reference: FER0700353) (RHP). In considering whether RHP is a public authority within the meaning of regulation 2(2)(c), the IC applied the test laid down by the Court of Justice of the European Union (CJEU) in Fish Legal v The Information Commissioner and Others. This test contains two elements:
(i) whether the organisation in question provides services in the public interest; and
(ii) whether the organisation in question has special powers beyond those that result from the normal rules applicable in relations between persons governed by private law.
The IC was satisfied that the first element was met, but not that the powers RHP confirmed it has (namely an ability to apply for Anti-Social Behaviour Orders and Anti-Social Parenting Orders; seek an order demoting a tenant from assured status; grant a Family Intervention Tenancy) constitute special powers for the purposes of the EIR. Consequently, as in the IC’s opinion, “these powers granted to RHP are unlikely to amount to a significant advantage or responsibility for overseeing a public service”. It was not satisfied that RHP was undertaking functions of public administration, therefore, it determined that it was not a public authority under regulation 2(2)(c).
So far, so good for housing associations. However, it didn’t take long for a spanner to be thrown in the works.
In Poplar Housing & Regeneration Community Association, 14 August 2018 (Reference: FER0735350) (PH) the IC came to the same decision as in RHP relating to element (i) of the Fish test. The IC’s analysis of ‘special powers’ (element (ii) of the test) in PH seems to conflict with its decision in RHP. However, in PH, the IC provided a more comprehensive analysis of the powers conferred on housing associations. The IC was of the view that a housing association’s right to apply to County Councils to acquire land to build needed homes under section 34 of the Housing Associations Act 1985, is a special power not available under private law. Moreover, the IC thought that the power to appeal to a superior authority, creating leverage on behalf of the housing association, is also an advantage not conferred by private law.
In Cross v Information Commissioner & Cabinet Office it was held that the functions of public administration must include environmental functions. The ability to acquire land in the way described above is clearly an environmental function, thereby bringing a housing association within the scope of regulation 2(2)(c). However, failing that, the IC was also of the view that the powers set out at paragraph 4 above do, in fact, confer a practical advantage on PH, which in any event made it a public authority within the meaning of regulation 2(2)(c). Although this decision conflicts with RHP, it does correlate with the ICO’s ‘Guide to the Environmental Information Regulations’, which states that: “The Regulations also cover organisations that carry out ‘functions of public administration’; these functions do not have to relate to the environment.” It also reflects paragraph 18 of the ICO’s guidance on public authorities, which states: “Services of public interest are not defined in the EIR, and do not have to relate to the environment.”
Another point worthy of note is that the IC made it clear that RHP was decided on ‘specific circumstances’ of that case. This is, to some extent, reiterated in the PH decision in which the IC pre-empts any arguments relating to the conflict between the decisions by stating that:
"On 11 July 2018, the Commissioner issued decision notice FER0700353 which considered whether or not another housing association was a public authority for the purposes of the EIR and concluded that it was not. The Commissioner has reached her conclusion in the present case (as she does in all cases) on the basis of all of the evidence available to her. On that evidence she considers that the circumstances of this case are materially different to FER0700353.”
These decisions left housing associations in something of a quandary. It could be argued the fact that PH was the later decision which the IC made clear it wanted to distinguish from the decision in RHP and, based on the IC’s comprehensive analysis of the special powers element of the regulation 2(2)(c) test, it was advisable for housing associations to consider themselves subject to the EIR going forward, at least until there was a definitive answer to the contrary.
Fortunately, for the time being at least, we now have that answer. In Poplar Housing Association and Regeneration Community Association v Information Commissioner and another (EA/2018/0199) (1 February 2019), in conflict with the IC’s decision, the FTTIR held that PH was not a public authority under the EIR and was, therefore, not required to disclose the requested environmental information.
Specifically, the Tribunal found that PH did not carry out functions of public administration under regulation 2(2)(c) of the EIR. Following the decision in Fish Legal, and the judgment in Cross, the FTTIR considered whether PH was empowered to perform public administrative functions ‘by virtue of a legal basis specifically defined in the national legislation’, as PH was subject to a statutory regulatory framework (including under the Housing Act 1996) and granted powers under the Anti-Social Behaviour, Crime and Policing Act 2014, among other statutes. Despite this, it was not explicitly delegated power by statute to perform a public administrative function; it could perform its functions despite this. Thus, the FTTIR stated that Fish Legal and Cross artificially narrowed the term ‘under national law’ in Article 2(2)(b) of the Directive on public access to environmental information (2003/4/EC), which was not reflected in the EIR.
Undoubtedly, this judgment, which clears up the conflicting decisions from the IC, will come as a relief to housing associations, at least for the time being. The FTTIR expressed concern that an organisation that carried out a public interest service ‘in the shoes of the state’, without expressly delegated statutory functions, was outside the EIR's scope. The IC has recommended extending the Freedom of Information Act 2000 to include housing associations (among other organisations) as public authorities in a report laid before Parliament. This proposal was debated in the House of Commons on 6 March 2019. If enacted, it would bring housing associations directly within the EIR's scope.
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