Environmental Information rules apply to some telecoms network operators, Commissioner rules

A decision of the UK Information Commissioner (ICO) on 15 April determined that Openreach Limited – the operationally independent BT Group subsidiary that owns and maintains the UK’s largest broadband network – is subject to the Environmental Information Regulations 2004 and must, therefore, provide some types of information in response to requests from the public.

Background

The Environmental Information Regulations 2004 (EIRs) (and the corresponding Environmental Information (Scotland) Regulations 2004 (EISRs) in Scotland) provide for a regime under which any person is entitled to request information from public authorities that relates to the environment, and is entitled to receive that information unless narrow exceptions apply. The definition of environmental information is very broad and can, for example, capture information that relates to development projects given their potential environmental impact.

The EIRs and EISRs sit alongside the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002 but, unlike those pieces of legislation, do not apply only to public sector bodies. In 2015 the Upper Tribunal ruled that appointed undertakers in the water sector (that is, the companies that own and operate water infrastructure, from pipes to reservoirs) are subject to the EIRs. That followed a decision of the Court of Justice of the European Union regarding the proper interpretation of the EU directive that the EIRs and EISRs gave effect to.

By contrast, courts have overturned decisions of the Information Commissioner’s Office that a housing association and Heathrow Airport were authorities subject to the EIRs.

The question in each of those cases turned on two features that will make an authority subject to EIR duties:

• Has it been entrusted with functions of public administration under law that have some relation to the environment?
• Has it been conferred special powers, not available to other persons, in connection with those functions, for example to force another person to do something that he has not agreed to do?

Because water undertakers have particular statutory functions relating to the operation of water networks and have special powers (such as the ability to force access to private property, or to compulsorily purchase property), the tribunal found that they were “public authorities” for EIR purposes. On the other hand, neither a housing association nor Heathrow Airport are entrusted with particular functions of public administration.

The request to Openreach

On 16 September 2024 the (anonymous) requester wrote to Openreach to request all documentation it held “appertaining to the provision of fibre-based Internet communication to the village of Nateby, Lancashire, between August 2014 and August 2024”. Openreach did not respond and so the requester applied to the ICO for a determination.

The ICO found firstly that the information was environmental information because it related to something (telecoms infrastructure) being placed in the ground. The EIRs therefore applied. The ICO acknowledged that Openreach would not have been subject to FOI obligations if the EIRs did not apply.

The ICO then determined that Openreach had “been entrusted with functions that the state would normally carry out”. Ultimately the ICO determined that there “are no significant differences of substance” between the operation of the Water Industry Act 1991 and the Communications Act 2003 – a conclusion that might be thought questionable for a number of reasons, and might be the basis for an appeal by Openreach (the deadline for an appeal has now passed and it is not clear if Openreach has chosen to accept the ICO’s decision).

The ICO also concluded (perhaps more robustly) that Openreach’s powers under the Communications Code are sufficient to meet the second part of the test set out above.

Implications

The basis for the ICO’s decision means that, in principle, any business that enjoys code powers under the Communications Act 2003 will, going forward, be subject to the EIRs (and by clear implication, the EISRs in Scotland). The effect of that is a clear statutory obligation to provide “environmental information” to any person who asks for it unless one or more exceptions under the EIRs are applicable. Journalists, campaigners and business competitors may seek to make use of those rights.

Failure to respond to a request may result in a direction from the ICO, and failure to comply with an ICO direction may be treated and punished as a contempt of court, which carries a potentially unlimited fine and can also be punished with imprisonment in some circumstances.

Any business with code powers should accordingly take three key steps in anticipation of receiving requests: first, make sure that somebody within the organisation is responsible for dealing with information requests, secondly make sure that employees understand how to identify an information request, understand the short deadlines for complying with them, and know who within the organisation to refer them to, and third make sure that requests are dealt with promptly and properly, seeking legal advice where necessary.

If you have any queries about this decision or would like to discuss how it might affect your organisation, contact Jamie Dunne, Martin Sloan or your usual Brodies contact.