Heathrow ruled to be a “public authority” for information-access, so FoI requests can be made on environmental issues

Heathrow Airport Limited ruled to be a public authority for information-access regime

Posted on 12 February 2020

By lawyers, Mishcon de Reya

The Information Commissioner’s Office (ICO) has issued an important decision, holding that Heathrow Airport Limited (HAL) is a “public authority” for the purposes of the Environmental Information Regulations 2004 (EIR). This opens up the potential for anyone to ask HAL for information it holds relating to the environment.

And, as “environmental information” has a broad definition under the EIR, this could encompass a wide range of information on subjects such as planning applications, emissions, buildings, energy consumption, waste and noise.

The EIR operate alongside the Freedom of Information Act (FOI Act), and oblige public authorities to disclose environmental information upon request (unless an exemption to disclosure applies). Public authorities must also proactively to make environmental information publicly available. The ICO can rule on complaints about compliance with the EIR, and issue legal notices requiring disclosure.

The EIR differ from the FOI Act in that they don’t provide a list of “public authorities” – rather, they say that an entity is a public authority if it “carries out functions of public administration“. And in previous case law this has been said to be dependent on whether the entity is “entrusted…with the performance of services of public interest, inter alia in the environmental field” and has “special powers beyond those which result from the normal rules applicable in relations between persons governed by private law” (Fish Legal v Information Commissioner & Others (GIA/0979/2011 & GIA/0980/2011)).

The ICO, in its recent decision, held that HAL’s main function is to operate Heathrow Airport, that it was entrusted with this function under the Airport Act 1986, and that “given the importance of the efficient provision of services at Heathrow Airport to the economy and citizens of the UK, the operation of the airport is a service of public interest“.

When it came to “special powers“, the ICO noted that by virtue of being an “airport operator” and “statutory undertaker“, under the Civil Aviation Act 2012, HAL enjoys a number of powers, such as to acquire land compulsorily, to enter private property in connection with a proposed compulsory purchase, to make byelaws, to exercise certain permitted development rights without needing to obtain planning permission and to levy financial penalties on aircraft operators who breach noise abatement requirements. Each of these is, said the ICO, a “special power” and, accordingly, the test for HAL being a public authority for the purposes of the EIR was met.

It is not yet known whether HAL will appeal the ICO decision (it has the right to make an appeal to the First-tier Tribunal). However, other airport operators, and companies performing similar, or analogous, functions, would be advised to read the decision carefully.