The Upper Tribunal has recently given its judgment in Information Commissioner v  Poplar HARCA. A private registered provider ("RP") of social housing is not subject to the Environmental Information Regulations 2004 (“EIRs”).  The decision provides welcome clarity on the scope of information law obligations for the sector. In this insight, we explore the key legislation and what this means for RPs.

The EIRs – what do they actually do?

The EIRs create a framework under which certain organisations are required to make environmental information available to the world, both proactively and in response to requests from members of the public, businesses and others. Therefore there is a resource-burden in being subject to the EIRs. There are statutory appeals processes that must be complied with if the applicant is dissatisfied with the response to their request.

The definition of ‘environmental information’ is broad, including information about the built environment, energy efficiency, and planning-related issues. As a result, a lot of the information held by housing providers is potentially ‘environmental information’.

In England and Wales, bodies are subject to the EIRs if they:-

  • are defined as a ‘Public Authority’ under the Freedom of Information Act;
  • carry out functions of public administration; or
  • are under the control of a Public Authority and have responsibilities relating to the environment.

The range of organisations that may be subject to the EIRs is therefore:

  • broader than under the Freedom of Information Act, and
  • vague, because there is no strict definition of whether an ‘organisation is carrying out functions of public administration’.

The background 

There has been a long history of regulatory interest around access to housing sector information. The Information Commissioner’s 2019 report Outsourcing Oversight made clear her view that housing associations should be subject to the EIRs and FOIA, but the government’s response to the report was that it did not intend to legislate to bring housing associations explicitly in scope. Given the vague definition in the EIRs itself, it remained possible for there to be a judicial decision on whether a body falls within the definition of a ‘public authority’ for the purposes of the EIRs.

In 2018, following a complaint by a campaigning journalist to the Information Commissioner’s Office, the ICO held that Poplar HARCA, a 10,000-home private registered provider, was subject to the EIRs. The ICO asserted that Poplar HARCA was carrying out functions of public administration. However, the ICO had previously taken inconsistent approaches to this question among other housing providers, concluding in 2015 that a housing association in Northern Ireland was subject to the EIRs, whilst deciding another PRP in south west London was not in 2018 (about a month before it then decided Poplar HARCA was subject to the EIRs).

The decision

Poplar HARCA successfully appealed in the First Tier Tribunal against the ICO’s decision. The ICO itself then appealed against the First Tier Tribunal’s decision to the Upper Tribunal.

In a technical judgment, the Upper Tribunal has recently confirmed that as a Private RP, Poplar HARCA was not an ‘administrative authority’ itself, and the fact that Poplar HARCA is subject to statutory oversight from the Regulator of Social Housing does not mean it is entrusted with public functions or cause it to become a public authority, which could have brought it into the scope of the EIRs.

As an Upper Tribunal decision (and subject to any further appeal by the ICO to the Court of Appeal), this case is binding on the sector, the ICO and First Tier Tribunal. A copy of the judgment will follow once published.

Capsticks advised Poplar HARCA throughout the appeal process, instructing specialist information law barrister Rupert Paines.

Commenting on the appeal, Andrea Baker, Director of Housing and Corporate Services at Poplar HARCA said:

“This is an important decision. There is now certainty as to RPs’ status. Like the ICO, we are keen that information is made available.  However, the whole sector would have experienced the significant adverse impact had the ICO’s original decision not been challenged.  I’m very grateful to the exceptional Capsticks team for guiding us safely through this complex matter.”

Key takeaways  

The Upper Tribunal decision brings welcome confirmation that Private Registered Providers are not subject to the EIRs, and therefore are not required to respond to EIR requests made of them.

However, it is important to understand that information relating to a Private Registered Provider held by a conventional public authority (such as a council, the Regulator of Social Housing or government department) may still be requested directly from that authority, and so careful consideration does still need to be given by PRPs to how information is handled and shared. Local authorities and ALMOs wholly-owned by local authorities remain directly subject to both FOIA and the EIRs.

How can Capsticks help?

Our expert team helps clients with all aspects of information law, including data protection, freedom of information, privacy and confidentiality issues across transactional, regulatory, litigated and advisory matters.

To discuss any of the issues raised in this e-alert, or matters affecting your organisation, please contact Kate Dimes Letters or Andrew Latham.