Should private water companies have to respond to requests for environmental information in the same way that public authorities do?

This is the issue that will be considered today in an important tribunal case. It could determine how much the public right of access to environmental information applies to data held by certain private organisations as well as public bodies.

The case is being brought by SmartSource, a specialist Reading-based company which advises consumers on reducing water bills and wants to provide water and drainage information for house purchases. It asked several English water companies for the underlying electronic data used for their maps of the water and sewerage system.

These requests were turned down. In March the Information Commissioner ruled [844KB PDF] the water utilities were entitled to do this, on the basis that they are not covered by the Environmental Information Regulations (EIR).

While the Freedom of Information Act only applies to public bodies, environmental data is covered by the EIR which also extend to private organisations that carry out “functions of public administration” or exercise environmental responsibilities under the control of a public body. The Commissioner’s decision reverses previous cases [66.5KB PDF] where the ICO considered that private water utility companies did have to abide by the EIR.

SmartSource is now appealing against the ICO’s new stance. The Commissioner is being backed by the water companies, who do not regard themselves as part of the public sector.

Barrie Clarke of the water industry body Water UK says: “Water companies are profit-making companies in the private sector. They are businesses which have shareholders and act like a normal business.” In response, SmartSource contends that these utilities have statutory responsibilities that distinguish them from most private corporations.

The SmartSource case is just one of several (which could be said to be in the pipeline) involving requests for information from water companies. The others, which will await the outcome of this action, include one initiated by FishLegal, an angling organisation which campaigns against river and lake pollution.

FishLegal is pressing for the release of water company data on sewage discharges, which has also been resisted by the water industry. Justin Neal of FishLegal argues that disclosure is needed among other reasons because he says the Environment Agency doesn’t do a good enough job in investigating pollution incidents.

The BBC has obtained material from the Environment Agency through an EIR request which appears to reflect internal differences within the agency on how best to relate to the water companies.

This is from an e-mail exchange [32KB PDF] in January when the agency was involved in a dispute with certain water companies over the regulation of sewage discharges from Combined Sewer Overflow (CSO) pipes.

John Sweeney, National Permit Centre Manager, warned the agency’s press officer Jason Wakeford: “We also need to ensure we do not affect too badly our ongoing relationships with the WC [water companies]”. Mr Wakeford replied: “We also need to be careful not to be seen in their pockets, especially over this issue in which they have received some very negative publicity.”

Justin Neal of FishLegal says he is not surprised. “That’s pretty typical of the Environment Agency”, he comments. “They are too sensitive to companies which discharge into rivers and lakes. If they’re trying too hard to please the water companies they’re not carrying out their duties properly.”

However, speaking in his capacity as press officer, Mr Wakeford defends the agency: “We work with these companies where we can and positive relationships help with that, but we’re not shy of standing up to them and we take firm regulatory action when we have to.”

Water UK maintains that the industry is investing billions of pounds in tackling the problem of sewage pollution of rivers, lakes and beaches.

The FishLegal application on the publication of sewage discharge data will not be decided until after the SmartSource appeal has determined the legal principle of the scope of the EIR. The SmartSource case may also set a precedent on to what extent private companies in other industries with environmental duties are covered by the regulations on public access to information.

The significance of the issue is reflected in the fact that it is only the second dispute to be heard by the tribunal’s upper tier. A decision is unlikely to be published for several weeks, and the case could then go to further appeals.

Interestingly, the Information Commissioner Chris Graham appears to be uneasy about the stance he feels the state of the law has forced him to adopt. An ICO spokesperson comments: “Although he believes the decision to be legally correct, the Commissioner accepts that there is a strong public interest case for these companies to come under the Freedom of Information Act and Environmental Information Regulations.”

Scottish Water and Northern Ireland Water are both publicly owned and have been subject to decisions from the Scottish Information Commissioner and UK-wide Information Commissioner respectively. Welsh Water is private but (unlike the English companies) is a not-for-profit body and refused to comment on this case.