The Information Commissioner (ICO) has issued decision notices ruling that British Telecommunications plc and Openreach Limited are public authorities for the purposes of the Environmental Information Regulations 2004 (EIR).
The EIR are a piece of legislation that runs in parallel to the Freedom of Information Act 2000 (FOIA). They implemented an EU Directive, which in turn gave effect to an international treaty (the "Aarhus Convention") on access to environmental justice. The EIR require public authorities to disclose environmental information (so long as it is held) to any person who requests it, subject to the application of exemptions.
However, deciding which bodies qualify as public authorities under the EIR is sometimes complicated. Any body which is a public authority under FOIA counts, but the EIR also say that bodies which carry out "functions of public administration" will also do so. The test for determining this derives from a case involving water companies which went, pre-Brexit, to the Court of Justice of the European Union, but which was then clarified further by the Upper Tribunal. The test boils down to the following criteria, which are laid out in the ICO decisions:
- The body must be doing a task that the state normally does, or would otherwise do.
- The state must have required it to do this task and there must be a statutory basis.
- The task must have an environmental impact.
- The body must have "special powers", beyond those available in private law, for the purpose of carrying out the task.
In deciding that BT and Openreach are public authorities, the ICO noted that the state, acting via Ofcom, issues directions to telecoms providers which then entitles the providers to exercise powers under the Communications Code, and has thereby entrusted BT and Openreach with administrative functions, with a clear basis in statute.
Furthermore, operation of a mobile network involves emission of radio waves, and a cabled network requires laying of cables – usually underground – which requires disturbance and movement of earth. All of these affect the elements of the environment.
Finally, the powers exercisable under the Communications Code include the right to install equipment on, over or under land, the right to maintain equipment and the right to enter onto private land if necessary for such purposes. These are not powers available to persons under private law, and so constitute "special powers".
Accordingly, BT and Openreach are public authorities for the purposes of the EIR, and must comply with requests for environmental information. Although the ICO does not specifically say so, one assumes that this would extend to other telecoms providers.
It is worth mentioning one other point though – in recent years the ICO has made decisions that a housing association and Heathrow Airport were EIR public authorities. In both cases this was overturned on appeal. It is possible, therefore, that these latest decisions may get challenged.