SmartSource Drainage & Water Reports Limited (“SmartSource”) v The Information Commissioner (Upper Tribunal Case No.GI/2458/2010)
SmartSource advises consumers on how to save on their water bills. As part of its review of water charges it requested under the Environmental Information Regulations 2004 (“the Regulations”) information from 16 water and sewerage companies. The information request related to both technical information and billing information, including water and sewerage billing records, water quality reports, pipeline mapping databases, the trade effluent register and the water pressure registers.
The Regulations give the public a right to information held by public authorities, and all of the water companies refused SmartSources’ request on the grounds that they were not public authorities for the purposes of the Regulations.
The water companies refused SmartSources’ request who appealed to the Information Commissioner. The Information Commissioner agreed that the water companies were not public authorities for the purposes of the Regulations. SmartSources’ appeal to the Information Tribunal was fast tracked to the Upper Tribunal because of the decision’s significance
Regulation 2(2) of the Regulations defines public authority to include government departments, all organisations covered under the Freedom of Information Act, 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.
The Upper Tribunal considered the earlier ruling Network Rail Ltd v Information Commissioner (2006) which held that the applicant under the Regulations must prove that the body was “public in nature” by reference to whether that body is:
exercising statutory powers;
acting in the place of central government or local authorities;
providing a public service;
under a significant degree of governmental control.
The water companies also known as “statutory undertakers” were held not to be public authorities as they did not perform public administration functions. Further the Upper Tribunal considered whether they were “under a significant degree of governmental control” and held them not to be, it distinguished between being regulated as opposed to controlled. Regulation tended to control the ends of the activity but not the means; the companies retained significant commercial freedom.
“The bottom line is that the water companies are commercial enterprises in the
business of supplying water and providing sewerage services; any administration
they undertake is ancillary to that central activity.”
This seems a very strange decision as water companies are called “statutory undertakers” and operate under a very tight regulatory structure which even controls to an extent their pricing, the most commercially sensitive decision for a private company. A number of questions remain unexplained, including would the ECJ agree with this decision and how does this reflect on the UK’s non-implementation of Aarhus?