Tribunal Says BT is a UK Public Authority for Environmental Regs, But Not Openreach

A Tribunal has ruled that broadband and phone provider BT’s role, obligations and statutory powers make it sufficiently public in character for environmental-information purposes, but network access provider Openreach’s separate corporate status means it does not cross that same legal threshold.

The case reflected an appeal by BT and Openreach, which had been raised after the Information Commissioner’s Office (ICO) initially determined that both of the operators should fall within Regulation 2(2) of the Environmental Information Regulations 2004 (EIR) – effectively designating them as “public authorities” for the purpose of related information requests by members of the public or others.

The ICO’s view was that both should be subject to such EIR related information requests because they carry out services in the public interest, operate under a statutory framework (e.g. Ofcom’s various rules, BT’s broadband USO etc.), hold special legal powers beyond those available to normal private companies and have a big impact on environmental matters. Not to mention that such networks are now considered essential national infrastructure.

In short, the ICO argued that all of this meant the environmental information held by both companies should be accessible to the public in the same way as information held by many public bodies. But as commercial operators this was naturally something that BT and Openreach opposed.

The Tribunal examined all of this in some detail (see the ruling) and appeared concerned that the ICO’s argument might end up meaning that almost any contractor, employee or agent acting for a public authority could themselves become a public authority. But they also recognised that Openreach’s legal separation from BT was a significant difference, thus what may apply to once doesn’t necessarily apply to the other.

Judge Kiai said:

“The Tribunal concludes that BT is a “public authority” for the purposes of the Environmental Information Regulations 2004 by virtue of regulation 2(2)(c): BT is entrusted under the applicable national law regime with the performance of services of public interest which have the requisite nontrivial nexus with the environment, and for that purpose is vested with special powers going beyond the normal rules applicable between private persons.

By contrast, Openreach is not a “public authority” under regulation 2(2)(c), because it is not itself vested under national law with the relevant special powers, and the operational fact that it acts as BT’s agent does not satisfy the distinct “vesting” requirement.

Nor is Openreach a public authority under regulation 2(2)(d), because the Commissioner has not shown, on the evidence taken as a whole, that BT is in a position to exert decisive influence such that Openreach does not determine in a genuinely autonomous manner the way it performs the relevant functions. It follows that the appeal is allowed only to the extent that the Decision Notice relating to Openreach must be substituted and is otherwise dismissed.”

The split decision is good news for Openreach, as it will not now have to deal with the complex extra admin and costs that would come from needing to respond to environmental information requests (similar to those imposed on some public bodies). But obviously the situation for BT is exactly the opposite.

A BT Group spokesperson told ISPreview:

“We note the Tribunal’s conclusions on BT and are carefully considering the judgment and our options. The issues engaged raise important points of principle about the scope of the Environmental Information Regulations as applied to commercial companies operating in competitive markets. We welcome the Tribunal’s finding that Openreach is not a public authority for the purposes of the Environmental Information Regulations 2004.”

The ruling also opens the possibility that other infrastructure operators with statutory powers, including in different sectors, could in the future potentially be treated as public authorities under environmental information law.