As it was information relating to the location of World War Two ordnance scattered across the countryside, the Commissioner took the view that the requested information was likely to be information on either ‘factors’ affecting the elements of the environment, on ‘measures’ affecting those factors or directly on the state of the elements themselves.
The Commissioner relied upon written submissions made by National Trust in a previous complaint which had been subsequently settled without determination.
The Commissioner applied Cross v Information Commissioner  AACR 39 and Information Commissioner v Poplar Housing and Community Regeneration Association  UKUT 182 (AAC), in which the Upper Tribunal further interpreted the judgment in Fish Legal CJEU as laying out a dual functional test which requires two distinct conditions to be met in order for an organisation to qualify as a public authority under Regulation 2(2)(c):
- the organisation must have been entrusted, under the legal regime applicable to the organisation, with the performance of services of public interest (in practice this means a specific piece of law must delegate functions to the organisation) and
- the organisation must have been vested with “special powers” for the purpose of performing those services
Supporting the written submission of the National Trust, the Commissioner took the view that the National Trust has not been entrusted, in law, with carrying out services of public interest and therefore it cannot be a public authority for the purposes of the EIR. The Commission considered that this view accorded with ‘the judgment in “Poplar” where the Upper Tribunal, referring to Fish Legal CJEU found that: “The Court’s reference (at para 49) to demonstrates that article 2(2(b) refers to entities which are administrative authorities as established in national law and not to entities which may carry out some of the same functions as are performed by the State but which cannot be regarded as bound by legislation to do so.” [emphasis added]’
However, for completeness, he has went on to consider the second part of the dual functionality test: whether or not the National Trust has been ‘vested with special powers.’ In Fish Legal CJEU, the Court held that a public authority must have: “special powers beyond those which result from the normal rules applicable in relations between persons governed by private law” After having sought the opinion of the European Court of Justice, the Fish Legal case was referred back to the UK courts where it was considered by a three-judge panel of the Upper Tribunal in Fish Legal & Shirley v Information Commissioner and others  UKUT 0052 (AAC) (“Fish Legal UT”). In its ruling, the UT stated that the question to be asked was: “Do the powers give the body an ability that confers on it a practical advantage relative to the rules of private law?” In its original submission, the National Trust argued that it did not have special powers not available under private law. It argued that: “the powers granted are in order to facilitate a duty imposed upon the Trust that restricts the powers private landowners would otherwise have. All the powers granted are all powers which a private landowner would otherwise be able to exercise and cannot be described as ‘special’ being powers that a private landowner could not exercise.” [original emphasis] The Commissioner disagreed that the power to impose byelaws did not provide the National Trust with a practical advantage relative to the rules of private law. Relying upon one of the powers granted to the National Trust in the 1971 Act to make byelaws regulating the “games to be played” on land which it owns, the Commissioner stated that ‘The owner of a private housing development may erect a sign saying “No Ball Games” on an open space that belongs to the development and to which access is not restricted – but if someone disregards that sign, the company can only threaten to bring a civil tort for trespass. What the company cannot do is take out a criminal prosecution. Through its power to make byelaws, the National Trust is permitted (at least in theory) to initiate a criminal prosecution.’ As a result, the Commissioner found that the National Trust did possess special powers. However in the light of his earlier finding he held that the National Trust was not a public authority.
Gregory Jones QC (instructed by Sam Carlisle, Senior lawyer at National Trust) acted for the National Trust in submitting the written legal submissions.