UK: new EIR risks for Ofgem licence and DCO holders

Why should I read this?

A recent Upper Tribunal decision has found that a private, for-profit company holding an Ofgem licence and a Development Consent Order (DCO) can be treated as a public authority for the purposes of the Environmental Information Regulations 2004 (EIR). Unless successfully appealed, the ruling could have significant implications for businesses in the energy sector or developing or operating any nationally significant infrastructure project.

Affected organisations that become subject to EIR must by law respond to requests for environmental information from any person, requiring them to identify, review and disclose relevant records within statutory time limits. Importantly, the scope of information covered is not limited to environmental details relating to the licence or DCO itself and may extend across a much wider range of business records.

What does it say and what does it mean?

The headline news is that in the UK, this means new EIR risks for Ofgem licence and DCO holders.

The Upper Tribunal has just published a decision confirming that a private, for-profit business is a public authority under the UK’s EIR - NNB Appeal decision. The decision considered in detail the effect of the business having been granted:

• an Ofgem electricity generation licence; and 

• a DCO, 

in respect of the development and operation of Hinckley Point C, a nuclear generating station.

In each case, the Upper Tribunal confirmed that relevant details resulted in the business being an EIR public authority. 

Unless the decision is successfully appealed, the business must comply with the EIR. This is a form of Freedom of Information law that provides a public access right to “environmental information”. Equivalent regulations apply in each EU member state.

The appeal resulted from a request by Fish Legal, the angling association that also caused water and sewerage undertakers for England and Wales to be designated as public authorities subject to the EIR. 

Under the EIR and its public access regime, the business is obliged to disclose on request to any person, anywhere in the world, for any reason, any “environmental information” it holds. The scope of affected “environmental information” is not limited to details relating to the Ofgem licence or DCO. 

Unless successfully appealed, the Upper Tribunal decision sets legal precedent and where applicable must be followed by lower courts and tribunals and by the Information Commissioner’s Office. 
Any business with a DCO or any Ofgem licence should anticipate requests for “environmental information” which may be verbal or written. Although the EIR contains several exceptions, reliance on them may be challenging, with an express EIR presumption that disclosure is in the public interest. Specialist EIR  knowledge will be needed to deal with requests. 

What should I do?

 Businesses that hold, or are applying for, an Ofgem licence or DCO should consider:

• assessing whether the decision could apply to their organisation

• evaluating the types of environmental information record held across the business

• the long term compliance, cost and risk implications before accepting that the organisation qualifies as an EIR public authority

• preparing a strategy for dealing with questions about the EIR status of the business, responding to requests, and managing related risks, including in respect of compliance, disclosure or refusals

• raising internal awareness of EIR requests to ensure that these are recognised, passed to those nominated responsible for dealing without delay and dealt with consistently 

• develop information governance, record keeping and risk management frameworks accordingly

The EIR contains exceptions to disclosure obligations, but these can be difficult to apply successfully. Requests may lead to complaints, investigations by the Information Commissioner's Office and, in some cases, tribunal proceedings. Organisations subject to EIR should therefore ensure they are prepared to manage requests consistently and within the required timeframes.

What else do I need to know about the ruling?

The decision is likely to be of interest far beyond the energy sector. Any business involved in nationally significant infrastructure projects may need to consider whether the details of their development consents could bring them within the scope of the EIR.

There is still uncertainty. The decision may be appealed and the extent to which particular licence types, DCOs, powers and obligations meet the legal test will depend on the individual circumstances. However, organisations that could be affected should not wait until they receive a request to consider their position.

Early assessment of risk, governance arrangements and document management practices may help organisations reduce disruption and respond more effectively if requests begin to emerge following this decision.

Please contact us for more information and support.