ICO finds BT and Openreach are subject to Environmental Information law

A blog article by law firm Mishcon de Reya reports on two recent decision notices by the Information Commissioner's Office (ICO) ruling that British Telecommunications Plc (BT) and Openreach Limited qualify as public authorities under the Environmental Information Regulations 2004 (EIR). The designation means that BT and Openreach are now legally obligated to disclose environmental information they hold to anyone who requests it, subject to relevant exemptions. 

Unlike the Freedom of Information Act 2000 (FOIA), any bodies deemed to carry out "functions of public administration" can be required to disclose environmental information. 

The ICO's decision relied on a four-part test derived from a European Court of Justice case involving water companies and subsequent clarification by the Upper Tribunal. The test assesses whether: 

• A body performs a task typically or potentially undertaken by the state
• The state mandates this task through a statutory basis; 
• The task has an environmental impact
• The body possesses "special powers" beyond those in private law to carry out the task

In the case of BT and Openreach, the ICO determined that the state, through Ofcom, directs telecoms providers, granting them powers under the Communications Code, thus entrusting them with statutory-based administrative functions. Furthermore, the operation of mobile networks involves radio wave emissions, and laying cabled networks necessitates ground disturbance, both of which impact the environment. Finally, the powers granted under the Communications Code, such as the right to install and maintain equipment on private land and to enter private land for these purposes, are considered "special powers" not available under private law.

While not explicitly stated, Mishcon de Reya considers that the ruling could extend to other telecommunications providers. 

The article also notes that previous ICO decisions classifying a housing association and Heathrow Airport as EIR public authorities were overturned on appeal, suggesting that this latest ruling may also face potential legal challenges.