13 August, 2020
The Upper Tribunal has recently published its judgment in the case of The Information Commissioner v Poplar Housing Association and Regeneration Community Association confirming that private registered providers of social housing (RPs) are not subject to the Environmental Information Regulations 2004 (EIRs).
In the case of The Information Commissioner v (1) Poplar Housing Association (2) People's Information Centre  UKUT 182 (AAC), the Information Commissioner challenged a finding of the First Tier Tribunal in which it concluded that Poplar HARCA is not a "public authority" for the purposes of the EIRs.
Poplar HARCA is a private registered provider of social housing and is regulated by the Regulator for Social Housing (the RP). In 2018, the RP received a request from an individual seeking a list of addresses of the RP's empty properties and plots of land earmarked for redevelopment or disposal. In relation to two named sites, the individual requested a detailed breakdown of redevelopment costs and copies of any major contracts relating to development. Following a complaint being made to the ICO, the ICO decided that the information requested was environmental and that the RP was a "public authority" for the purposes of the EIRs. The ICO ordered the RP to comply with the request within 20 working days.
The RP appealed against this decision of the ICO to the First Tier Tribunal. The First Tier Tribunal decided that the RP was not a "public authority" for the purposes of the EIRs and therefore the RP did not need to comply with the request. The ICO subsequently appealed against the decision of the First Tier Tribunal.
The Upper Tribunal agreed with the decision of the First Tier Tribunal and confirmed that the RP was not a "public authority" for the purposes of the EIRs. In making this decision, the Upper Tribunal found that the RP is not an "administrative authority" and the fact that the RP is subject to statutory oversight from the Regulator of Social Housing does not mean that the RP is entrusted with public functions or causes it to become a public authority. Therefore, the RP does not fall within the scope of the EIRs.
This decision provides certainty to private RPs as there had previously been a number of inconsistent decisions concerning whether or not private RPs were subject to the EIRs.
Whilst the ICO has been unsuccessful in this appeal, it has made clear its intentions to bring RPs within the scope of the EIRS. In the ICO report 'Regulatory Oversight' published in 2019, the Information Commissioner made clear her intention to reform information law and indicated that RPs should be subject to the EIRs. However, the government's response was to confirm that no legislative changes were currently planned.
Until any change in the legislation is announced, private RPs can take comfort from the clarity provided by this judgment and update their procedures to confirm that they are not subject to EIRs.
For more information contact Bethany Paliga in our Governance, Procurement & Information department via email or phone on 01254 222347. Alternatively send any question through to Forbes Solicitors via our online Contact Form.