Whether private water and sewage companies were public authorities for the purposes of the Environmental Information Regulations 2004, SI 2004/3391 (“EIR”).
Prior to this case, the UT had decided that privatised water companies were outside the EIR regime in Smartsource Drainage & Water Reports Ltd v Information Commissioner  UKUT 415 (AAC).
However, the UT revisited the issue in Fish Legal v Information Commissioner  UKUT 177 (ACC). The UT in that case referred the matter to the CJEU for a preliminary ruling (Fish Legal & Emily Shirley v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water C -279/12)
The CJEU gave guidance on when the EIR are applicable but declined to consider the facts of the Fish Legal case and so the matter was left for the UT.
Held: The companies were public authorities for the purposes of the EIR; and the First-tier Tribunal had the power to determine that issue.
The UT held that the water companies were public authorities because they exercise ‘special powers’, including the power to promote bye-laws which create criminal offences, and the power to enter private land without permission.
David Wolfe QC was involved in this case.