Are Housing Associations subject to EIR?

FOIMan highlights an FTT decision which provides the latest word on accessing information from housing associations.

Despite governments undertaking to examine the addition of housing associations to the Freedom of Information Act’s (FOIA’s) coverage, it has yet to happen. The Information Commissioner is the latest to call for this change.

There has been debate though as to whether Housing Associations are subject to the Environmental Information Regulations (EIRs). Generally the Information Commissioner has decided not, but last year she put the cat amongst the proverbial pigeons with a decision that an East London housing association was subject due to its ‘special powers’. Lynn Wyeth wrote an excellent piece in the Freedom of Information Journal in the Autumn comparing the Commissioner’s decisions on this issue and seeking to explain why the decision in relation to Poplar Housing and Regeneration Community Association (Poplar HARCA) was different. In summary: it’s complicated.

Well, the FTT has now decided that perhaps it isn’t complicated after all: they’ve upheld Poplar HARCA’s appeal and have concluded that it is not subject to the EIRs. In the course of the appeal, the Commissioner in fact suggested that she’d got it wrong in an earlier case (Richmond – FER0700353), which explained the variation. The FTT agreed that the Commissioner had got it wrong, but in their view it was the Poplar decision that was incorrect. 

As with a lot of disputes over the coverage of the EIRs in the last few years, the case revolved around the Fish Legal case that was referred to the European Court of Justice in 2014. That case examined the definition of public authority at regulation 2(2)(c) of the EIRs and the underlying Directive. It concluded that to ‘carry out functions of public administration’, a body had to have been ‘entrusted with the performance of services under a legal regime’; the services had to be of public interest; and it had to have been vested with ‘special powers’ in order to provide those services.

In the Poplar case, the FTT found that Fish Legal had defined ‘legal regime’ as meaning that there had to be a national law entrusting the body with the performance of those services. This was where the ICO’s case fell down: the FTT could not identify such a law. Without the ‘narrow’ definition of a legal regime set down in Fish Legal, the FTT would have taken a different view – but effectively its hands were tied.

For now then, private housing associations will not be subject to FOI nor the EIRs. Until the government either chooses to extend FOI and the EIRs to them, or inadvertently entrusts them with performance of services under another national law. Or until there is a successful appeal to the Upper Tribunal – whichever of these is sooner.