Public Private Puzzlement: expanding the definition of public authority under the AIE Regulations

Managing requests for access to environmental information has generally been the business of ‘traditional’ public authorities such as county councils or government departments. However, two recent decisions, one from the High Court and another from the Commissioner for Environmental Information, have signalled a broader interpretation of public authority, and challenged the notion that Access to Information on the Environment requests need not concern ‘private’ entities. Laura Rafferty and Jeanie Kelly of Arthur Cox consider the impact of these decisions.

While the European Communities (Access to Information on the Environment) Regulations 2007 – 2018, defines the concept of a public authority, the legal interpretation of this definition is coming under increasing scrutiny.

Even a cursory review of the basis for appeals being made to the Commissioner reveals that the question of ‘who is a public authority’ is a key ground of appeal for parties requesting environmental information. While Irish law had generally tended to offer a relatively narrow interpretation of public authority, two recent decisions have demonstrated a willingness on the part of both the Commissioner and the High Court to broaden the definition of a public authority.

In September 2020, the Commissioner held that Celtic Roads Group (Dundalk) DAC1 (CRG), a private toll company responsible for the operation and maintenance of the Dundalk Western By-Pass under the Public Private Partnership (PPP) Programme, was a public authority for the purposes of the AIE Regulations.

The requestor, Right to Know, relied on a decision of the CJEU2, where an Austrian toll company was held to be a public authority. It argued that CRG was vested with special powers under the State Authorities (Public Private Partnerships Arrangements) Act 2002, the Roads Acts 1993 – 2016 and the M1 Bye-Laws, which allowed it to step into the shoes of a road undertaking by collecting tolls, recovering unpaid tolls and accessing vehicle licensing records. CRG argued that, as a private PPP partner, its ability to perform these functions was on a contractual basis only, deriving from the PPP contract.

The Commissioner agreed with Right to Know in finding that CRG was a public authority. The Commissioner held that, although the CRG was given the status of a road undertaking and toll company under contract, the 2002 Act provides the statutory basis for the transfer of State functions to a private entity by way of a PPP “arrangement”, and that these functions amounted to special powers meaning that CRG was considered to be a public authority.

While the Commissioner reached this decision by looking at the specific powers granted to CRG under the relevant legislation, it potentially paves the way for any private PPP partner to be considered a public authority depending on the extent of its special powers.

More recently, in January 2021, a decision of the High Court in Right to Know v. Commissioner for Environmental Information and Raheenleagh Power DAC3 held a wind farm operator to be a public authority for the purposes of the AIE Regulations.

Right to Know made a request for data relating to wind turbine noise measurements from a wind farm operator, Raheenleagh Power DAC. The wind farm operator was a joint venture company in which the ESB was a 50 per cent shareholder. The decision of the Commissioner to agree with the operator that it was not a public authority was appealed to the High Court.

“The implications of the Raheenleagh decision remain to be seen, but they may include private developers and operators who hold licences under the 1999 Act being subject to AIE requests at any and all phases of the lifecycle of a project, e.g., site selection; pre-application; EIAR and NIS preparation; during the planning process; post consent and pre-expiry of the judicial review challenge period; operational and repowering phases.”

In overturning the Commissioner’s decision, the High Court noted that the wind farm operator had been granted a licence to generate electricity and an authorisation to construct the wind farm under the Electricity Regulation Act 1999. The Court found that holders of authorisations and licences benefit from special public law rights and powers conferred by the 1999 Act beyond those which result from the normal rules applicable in relations between persons governed by private law. Such rights and powers enabled the wind farm operator to perform services of public interest relating to the environment, i.e., to supply electricity. On that basis, the High Court held that the wind farm operator was a public authority. The High Court also held that the wind farm operator was a public authority on the basis that it was under the control of the ESB, which itself is a public authority, and was providing public services in relation to the environment.

The decision of the High Court in Raheenleagh was arguably foreshadowed by a decision of the Information Commissioner in the United Kingdom in February 2020, where he found that EON UK Plc was a public authority for the purposes of the Environmental Information Regulations (EIR). The Commissioner found that EON had been entrusted with public services as it held an electricity supply licence, an electricity generation licence, and a gas supply licence, and that these services were of particular importance to UK citizens and the UK economy and could therefore be considered services performed by EON in the public interest. Furthermore, as the holder of an electricity generation licence, EON had certain powers under legislation which included the power to carry out street works, alteration works, felling of trees and the power to enter land. The Commissioner was therefore satisfied that EON was a public authority under the UK EIR.

The implications of the Raheenleagh decision remain to be seen, but they may include private developers and operators who hold licences under the 1999 Act being subject to AIE requests at any and all phases of the lifecycle of a project, e.g., site selection; pre-application; EIAR and NIS preparation; during the planning process; post consent and pre-expiry of the judicial review challenge period; operational and repowering phases. The decision also means that private special purpose vehicles or joint venture companies entered into between a public authority and private entity, or two public authorities, can be considered a public authority where they are found to be under the control of one of the public authorities. We are watching with interest where this line of argument will go in terms of widening the category of public authority.

While access to ‘environmental information’ can be refused on certain grounds, the public interest needs to be considered, in specific ways. Private entities who may now be subject to AIE must also consider the additional administrative burden of responding to requests completely, and within time, and bear in mind that all communications, no matter how trivial, could one day be the subject of an AIE request!

1. Case OCE-93421-T8F8W7
2. Case 157/02 Rieser Internationale Transporte GmbH and Autobahnen- und Schnellstraßen-Finanzierungs-AG 3. 2021 [IEHC] 46

Laura Rafferty
Senior Associate, Environment and Planning Group
T: +353 1 920 1114
E: laura.rafferty@arthurcox.com

Jeanie Kelly
Associate, Environment and Planning Group
T: +353 1 920 1376
E: jeanie.kelly@arthurcox.com

W: www.arthurcox.com