Dear Sir or Madam,

Does the RSPB fall under the Environmental Information Regulations,
due to the fact they do contractual work for the government, act as
an advisor for several government departments, educate public (also
advised public education in a leaflet 'education outside the
classroom'), and conserve nature on behalf of the public.

Yours faithfully,

Benjamin Addison

Dear Mr Addison

Thank you for your email asking whether the RSPB fall under the
Environmental Information Regulations (EIR).

Whilst you have entitled your email 'Freedom of Information' request, it
is actually a general enquiry concerning the application of the EIR,
rather than a request for specific information, or for specific
documents, held by the Information Commissioner's Office.

Therefore, whilst we are not treating it as a request made under the
Freedom of Information Act 2000, I shall forward it to our Customer
Service Team who will respond shortly.

Yours sincerely
Angela Ellison (Mrs)
Assistant Internal Compliance Officer

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3rd September 2008

Case Reference Number ENQ0211138

Dear Mr Addison

Thank you for your enquiry, regarding whether the RSPB would fall within the
Environmental Information Regulations (EIR). It is important to note
initially that there is no definitive list of bodies covered by EIR.

I would also refer you to the guidance published by Defra on who is covered
by EIR. This can be found on the [1]Defra website.

It would appear, from the information provided, unlikely that the RSPB would
fall within the definition of a “public authority” (and hence be covered)
for EIR due to the reasons I will set out below.

There are two parts of EIR that could possibly define the RSPB as a public
authority.

Firstly 2(2)(c) defines a public authority as “any other body or other
person, that carries out functions of public administration”. Therefore,
firstly the definition of ‘public administration’ needs to be considered.
The Aarhus Implementation Guide suggests a definition of ‘public
administrative function’ as ‘a function normally performed by government
authorities as determined according to national law’. As far as I am aware,
they fund themselves in terms of the projects they undertake but work in
conjunction with other bodies to pool expertise on certain projects. I
understand that many of their obligations in respect of land management or
entitlement to funding arise by virtue of the fact that they are landowners
of protected sites which attract obligations as to what can be done with
that land. In this respect, they are no different to any other landowner.

The roles you list are not necessarily functions of public administration,
although it could depend on the contractual work being undertaken for the
government and the level of control it is able to exert.

The second part of EIR that could define the RSPB as a public authority
states as follows.

“2(2)(d) any other body or other person, that is under the control of a
person falling within sub-paragraphs (a), (b) or (c) and –

(i) has public responsibilities relating to the environment;
(ii) exercises functions of a public nature relating to the environment; or
(iii) provides public services relating to the environment.”

Persons falling within (a), (b) or (c) are effectively government
departments, public authorities as defined in the Freedom of Information Act
an any other body carrying out functions of public administration (as
detailed above).

If the RSPB fail to satisfy either of the two parts of 2(2)(d), it does not
satisfy the definition of “public authority” and is not caught by EIR. It
would not appear to satisfy the first part of 2(2)(d) as there is no
indication that the RSPB is under the control of any government department
in any of the work they do. This means that they are unlikely to satisfy
the first limb of the definition in Regulation 2 (2)(d) which requires the
body/person to be “under the control of a person falling within
sub-paragraphs (a), (b) or (c)”. If they do not satisfy the first limb of
the definition, the descriptions in 2(2)(d)(i), (ii) and (iii) are not
relevant.

Defra guidance on this states;

“It is important to note that the level of control needs to be sufficient to
exert a decisive influence on the body - the simple existence of a contract
with a public authority does not necessarily provide this control. The
existence of one contract between, for example, a government body and a
private company or other organisation will not necessarily bring that
company or organisation within the scope of the regime, although it may do
so. Each case will need to be considered on its merits and a range of
factors would need to be taken into account.”

Therefore, to summarise, although it would appear, on the information
provided, that it is unlikely the RSPB would be covered by EIR, it would
depend on whether it was carrying out functions of “public administration”
or whether it could be considered to be under the control of a body as
outlined above. However, if a specific case was to come to the Information
Commissioner’s Office it would need to be considered individually on the
particular circumstances of the case.

You may find it helpful to view the Information Tribunal’s Network Rail Ltd
decision [2]EA/2006/0061 and [3]EA/2006/0062, 17 July 2007 (this contains
some analysis of aspects of ‘public administration’) and the ICO’s decision
notice FS50114241 [4]South Downs Waste Services Ltd, 18 March 2008 (this
contains some analysis of ‘under the control of’).

It is also worth noting that if they are carrying out contractual work for
government departments, these departments may hold the information and you
may wish to make an information request to the public authority. You are
reminded that EIR requests are subject to exceptions (similar to the
exemptions in the Freedom of Information Act) which means that you may not
be entitled to all the information you request.

Yours sincerely

Adam Stevens

FOI Good Practice.

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[5]http://www.ico.gov.uk or e-mail: [email address]

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF

Tel: 01625 545 700 Fax: 01625 524 510

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

References

1. http://www.defra.gov.uk/corporate/opengo...
2. http://www.informationtribunal.gov.uk/Do...
3. http://www.informationtribunal.gov.uk/Do...
4. http://www.ico.gov.uk/upload/documents/d...
5. http://www.ico.gov.uk/

3rd September 2008

Case Reference Number ENQ0211138

Dear Mr Addison

As there appears to be some issues with the formatting of our response I
have also attached a PDF version.

Yours sincerely

Adam Stevens

FOI Good Practice.

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http://www.ico.gov.uk or e-mail: [email address]
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
Tel: 01625 545 700 Fax: 01625 524 510

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