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Public Access to Environmental Information Held by Private Companies

The pervading thought in England and Wales has been that private utility companies such as water-only companies (WOCs) and water and sewage companies (WASCs) were public authorities under the 2004 Environmental Information Regulations (EIR) and so were subject to the regime. However, on 23 November 2010, on appeal, the Upper Tribunal delivered a judgment in the case of Smartsource Drainage & Water Report Ltd v The Information Commissioner and 19 Water Companies to the effect that WOCs and WASCs were not public authorities under the EIR. This decision potentially puts certain important environmental information out of public reach in England and Wales. This paper briefly addresses the contextual issues of the advancement of the public's right to access environmental information into the domain of the private sector and why the public needs to be able to access environmental information directly from private companies and not just from government regulators. Primarily, however, this paper reinforces the case for wide public access to environmental information held by private companies mainly through counter-arguments raised to demonstrate the lack of purposive and contextual interpretation by the Upper Tribunal, in the Smartsource case, of the relevant provisions of the EIR (i.e., Regulation 2(2)(c) and (d)). It concludes with a possible legislative solution to help clarify the import of the relevant EIR provision.