Information Rights
Appeal Reference: FT/EA/2024/0451
Decision Given On: 04 June 2026
Determined following a hearing on 11 February 2026
Before
JUDGE ANTHONY SNELSON
TRIBUNAL MEMBER DR PHEBE MANN
TRIBUNAL MEMBER PIETER DE WAAL
Between
MR MARTIN REDFERN
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
Decision
On hearing the Appellant in person and Ms Laura Elizabeth John, counsel, on behalf of the Respondent, the Tribunal unanimously determines that the appeal is dismissed.
Reasons
Introduction
Mr Martin Redfern, the Appellant in these proceedings, to whom we will refer by name, is a journalist by profession and the editor of the Exeter Observer.
The Exeter Canal and Quay Trust (‘the Trust’) is a charity and company limited by guarantee which was set up by the Exeter City Council (‘the Council’) in 1981. Its website includes this outline of its history:
For the first ten years or so, the emphasis was on raising funds and developing the buildings on the Quay and Canal Basin. The buildings developed and improved were:
[certain buildings and properties listed]
The Trust also raised the money to build the suspension bridge across the river.
In the early days the Trust also supported the Maritime Museum until its demise in the mid 1990’s.
In the 1990’s, the Trust concentrated on running its property portfolio and supporting its tenants in the area. Several property deals were done involving the sale of longer leases or freeholds, which produced significant capital receipts. These form the basis of our financial position today.
After the millennium, we shifted to become more welcoming to grant applications. Over the years, we have contributed significant grants to local organisations, including Tuckers Hall in Fore Street and Devon Wildlife Trust for Cricklepit Mill. We have also made grants available to enable arts events to take place on the Quay, including the popular Jazz on the Quay, which takes place over the summer.
The most recent acquisition in our portfolio is The Custom House, which has been added to our lease by the City Council. Now a thriving hub of creativity, we support the venue and its continued operations through an ongoing revenue grant.
On 9 January 2024, Mr Redfern sent a request for information to the Trust in the following terms:
Please supply copies of all the recorded information you hold concerning [the Trust’s] Executive committee meetings held during the past 12 months, including but not limited to its agendas, attendance records, minutes, reports or other documents circulated in support of its meetings.
On 26 January 2024, the Trust replied, declining to respond to the request on the basis that it was not a body within the reach of the Freedom of Information Act 2000 (‘FOIA’).
On the same day, Mr Redfern sought a review on the basis that the Trust was a ‘public authority’ for the purposes of the Environmental Information Regulations 2004 (‘EIR’).
On 6 February 2024 for the Trust responded, denying that it was a ‘public authority’ for the purposes of EIR and accordingly refusing the request for a review.
On 15 February 2024 Mr Redfern complained to the Respondent (‘the Commissioner’) about the way in which his request for information had been handled.
On 18 October 2024, following an investigation, the Commissioner issued his decision in the form of a letter, upholding the Trust’s stance that it was not a ‘public authority’ under EIR and accordingly under no duty to provide information pursuant to that legislation.
On 7 February 2025 Mr Redfern presented a notice of appeal to the Tribunal, seeking to challenge the Commissioner’s adjudication.
The Commissioner resisted the appeal in a Response dated 14 March 2025 under the hand of Ms Laura Elizabeth John, counsel, who has been instructed throughout.
On 26 March 2025 Mr Redfern served a concise reply to the Response, attaching a number of documents.
The matter came before us in the form of a hearing held by CVP on 11 February 2026 with half a sitting day allowed. Mr Redfern appeared in person; Ms John represented the Commissioner. We pay tribute to the high quality of the advocacy on both sides. Mr Redfern merits particular commendation, since he professes no legal training or expertise.
The parties sensibly agreed on two matters. First, the unusual form of the Commissioner’s decision (being contained in a letter rather than a standard form Decision Notice (‘DN’) document) was irrelevant and his determination was to be treated like any other DN. Second, if Mr Redfern had any right to the information requested, it was pursuant to EIR, not FOIA.
Unfortunately, the matter was under-listed. We were presented with a bundle of over 900 pages and the rival submissions were detailed, including copious references to the documents and two lengthy authorities. Accordingly, oral argument occupied the entirety of the time allocated for the hearing and we were compelled to adjourn our private deliberations to the next mutually convenient date, namely 22 April 2026, when we reached our unanimous decision.
Applicable Law
Relevantly, EIR, reg 2 provides:
Subject to … ‘public authority’ means –
…
any other body or person that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and –
has public responsibilities relating to the environment;
exercises functions of a public nature relating to the environment; or
(iii)provides public services relating to the environment
It is not in dispute that the Council falls within the scope of reg 2(2)(d).
EIR, which, following Brexit, remains in force as ‘assimilated law’, implemented the EK’s obligations under Aarhus Convention and European Council Directive 2003/4/EC on Public Access to Environmental Information (‘the Directive’), both of which contain provisions very similar to reg 2. (Footnote: 1)
In Fish Legal and Shirley v Information Commissioner EU: C: 2013:853 (‘Fish Legal CJEU’), a case arising out of a request for information directed to three privatised water companies, the Court of Justice of the European Union determined a reference on the proper interpretation of the Directive, Article 2(c). The judgment included the following passages:
Thus, in defining three categories of public authorities, Article 2(2) of Directive 2003/4 is intended to cover a set of entities, whatever their legal form, that must be regarded as constituting public authority, be it the State itself, an entity empowered by the State to act on its behalf or an entity controlled by the State.
Those factors lead to the adoption of an interpretation of “control”, within the meaning of Article 2(2)(c) of Directive 2003/4, under which this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.
The manner in which such a public authority may exert decisive influence pursuant to the powers which it has been allotted by the national legislature is irrelevant in this regard. It may take the form of, inter alia, a power to issue directions to the entities concerned, whether or not by exercising rights as a shareholder, the power to suspend, annul after the event or require prior authorisation for decisions taken by those entities, the power to appoint or remove from office the members of their management bodies or the majority of them, or the power wholly or partly to deny the entities financing to an extent that jeopardises their existence.
…
In the light of the foregoing, the answer to the third and fourth questions referred is that undertakings, such as the water companies concerned, which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4, and should therefore be classified as “public authorities” by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field.
In Fish Legal and Shirley v Information Commissioner & others [2015] UKEAT 52 (AAC) (‘Fish Legal UT’), the Upper Tribunal interpreted and applied the reasoning of the CJEU. Its judgment included these passages:
The control test distinguishes between the functions that a body performs and the manner in which it performs them. It has to be applied to the manner of performance, not to the functions themselves. … In applying the control test, we are only concerned with the manner in which the companies perform those and other functions, although not at the lowest level of day-to-day management: see paragraph 71 of the CJEU’s judgment. …
We read the judgment as laying down a single test with two elements that identify cause and effect: is a body performing its functions in ‘a genuinely autonomous manner’ (the effect) ‘since a public authority … is in a position to exert decisive influence on their action in the environmental field’ (the cause)?
The language of the cause element reflects the subtlety with which influence may be exerted. As we have said in the context of the special powers test, powers may have a value even when they are not exercised. All powers, whether special or not, may exert their value through influence. The existence of the power may be sufficient to direct the manner in which a company performs its functions. This may make it difficult to prove that influence is in fact operating, but that is essential under the cause element. It is not sufficient merely to show the potential for influence. It is necessary to show that it has had an actual impact on the companies’ decision-making. The test is only satisfied if they ‘do not determine in a genuinely autonomous manner’ how they provide their services.
As we read the control test, we have to take an overall view of whether in practice the companies operate in a genuinely autonomous manner in the provision of the services that relate to the environment. It is not sufficient to show that they do not do so in one or two marginal aspects of their business. Nor is it necessary to show that they do not do so in almost every aspect of their business. …
Autonomy and influence
No legitimate business has complete freedom of action. All businesses are constrained by the law, by competition and market forces, and by the realities of business life. We need only provide a few examples of these self-evident truths. As to the law, businesses are limited by what is permissible under planning law and are required to comply with health and safety legislation, the Equality Act 2010 and employment law. Some are subject to forms of regulation, such as that exercised by Ofsted over child-minders. As to competition and market forces, no business can make customers buy products they do not want or at a price that is excessive compared to their competitors. As to the realities of business life, all businesses are subject to those who provide their finance. A corner shop is no less subject to the goodwill of its bank than a major public company depends on the continuing approval of the pension fund managers who invest in its shares. Constraints like these are always present as the background to, and set the limits within which, every business has to operate. But that does not prevent a business having genuine autonomy. In other words, autonomy has to be judged not by reference to absolute liberty, but against the normal background radiation of the constraints that limit the freedom of action for every business.
When influence becomes more than mere background, it may take various forms. Take a small family business that is financed by the directors and its bank. So long as business is going well, the bank’s potential power is in the background providing at most the outer limits of the company’s actions. When things are going wrong, the bank may take increasing interest. This might begin with a discussion that leads the directors to abandon their plans for expansion, followed by some advice or guidance that leads them to institute new methods of budgetary control, which may eventually lead to demands for redundancies to which they must accede rather than lose the company’s funding, which may now be made dependent on the bank having a seat on the board and perhaps special voting rights. So far, the management is still the responsibility of the board. A next step may be the appointment of a receiver or a liquidator. This simple but realistic example shows that circumstances may change the degree and extent of the influence that the bank can bring to bear on the company. Somewhere along the way, the line may have been crossed at which the company ceased to have genuine autonomy.
In other circumstances, there may be less scope for such a graduated flow of influence into a business. Take the example of a child-minder who is subject to regulation by Ofsted and required to comply with the standards it sets. It may take only a single incident for the regulator to intervene in the business and suspend the owner’s registration. To that extent, the freedom of action of all conscientious child-minders is constrained, as they wish to remain in business. But, despite the regulatory scheme, they retain such a degree of freedom to decide on the nature of their business and how they conduct it that they retain genuine autonomy.
These examples show that there are influences that operate in most businesses. Being subject to a degree of influence is not incompatible with a company having genuine autonomy in its decision-making. It is not just a case of taking account of the potential extent for intervention. That potential for influence can vary from being merely a background consideration that sets the limits of the company’s freedom for action to micromanaging all aspects of the company’s business, and every stage in between. It can vary from time to time and from one aspect of the company’s business to another. The more complex the company’s business, the more complex will be the varying pattern of control that can be exerted at any time and over time, and the greater the difficulty in showing that overall the business has no genuine autonomy of action. …
Conclusion
The control test is a demanding one that few commercial enterprises will satisfy. The companies’ functions may be fixed by law and by their Licences, but the test is concerned with the way in which they exercise those functions. They are subject to stringent regulation and oversight and there is the potential for extensive involvement and influence over the way in which they perform their services. But the evidence falls far short of showing that the Secretary of State, OFWAT and the EA influence their performance, individually or collectively, whether by actual intervention or by more subtle forms of influence, to such an extent that the companies have no genuine autonomy of action.
Although the information was requested under EIR, the appeal is correctly brought pursuant to FOIA, s57. The Tribunal’s powers in determining the appeal are delineated in s58 as follows:
If on an appeal under section 57 the Tribunal consider –
that the notice against which the appeal is brought is not in accordance with the law; or
to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner, and in any other case the tribunal shall dismiss the appeal.
On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.
The Issue
It was common ground that the sole issue for our decision was whether the Trust was a ‘public authority’ for the purposes of EIR.
Background
Although, as we have said, the Trust was created in 1981, the documents before us appear to date from 2010 onwards. What follows is based on the information which we have been able to glean from the materials shared with us.
Until 2023, the Trust’s registered office and, we infer, the site at or from which it was wholly or largely run was located in the Council’s Civic Offices.
The Trust’s revised Memorandum and Articles of Association are dated 22 March 2010. Its objects are listed in the Articles as follows:
The preservation of land, buildings and other features of beauty or historical or architectural interest in or around the Exeter Canal and Quay Basin ("the Area"),
The promotion and encouragement of high standards of architecture, building and town planning and the promotion of civic pride in the Area;
The promotion and support of musical, artistic , educational and other cultural activities within the Area,
The promotion and support of community participation in any form of healthy recreation, including waterborne sports, in the Area, and
The education of the public about the historic trade passing through Exeter Canal and Quay and the preservation and conservation of buildings of historic interest connected with that trade, whether or not within the Area
The same document sets out the Trust’s powers which, by Article 5, extend to doing anything that may further the objects or which is conducive or incidental to doing so. These include powers to raise funds, buy or otherwise acquire property, sell or otherwise dispose of property, borrow money, co-operate with, or merge with, other charities, and employ and remunerate staff.
Article 7 governs membership of the Trust. It provides:
The number of members of the charity may be determined from time to time by the Directors
Exeter City Council shall be entitled to appoint not less than one half of the members from amongst the elected members of Exeter City Council and to remove as a member any member that it has appointed Any appointment or removal of a member must be effected by notice to the charity
The Directors may appoint up to four other persons, who shall not be elected members of Exeter City Council, to membership of the charity PROVIDED THAT there shall at all times be a majority of members appointed by Exeter City Council
No-one may be appointed a member if he or she would, on appointment, be ineligible to be a Director
Membership is not transferable to anyone else
The Directors must keep a register of names and addresses of the members
Article 12 is concerned with general meetings. It includes:
No business shall be transacted at any general meeting unless a quorum is present
A quorum is
four members present in person or by proxy and entitled to vote upon the business to be conducted at the meeting, or
one quarter of the total membership at the time whichever is the greater, of whom at least one half must comprise members appointed by Exeter City Council
The Trust operates a conflicts of interest policy which provides:
Trustees who have been appointed to [the Trust] by [the Council] have exactly the same duties and responsibilities as the independent Trustees. As Trustees, they must act independently of [the Council] and only in the best interests of [the Trust]. [The Trust] recognises that there may well be occasions where such Trustees will have to act in a way which conflicts with the interests of [the Council] but in such circumstances the best interests of [the Trust] must come first; this duty overrides all other considerations.
There is evidence of the conflicts of interest policy being operated in practice (including instances of Trust members leaving a meeting and/or abstaining on motions seen as giving rise to conflicts) and we have been shown no evidence of the policy being flouted or overridden.
We agree with Mr Redfern that there is little sign of the Trust having taken decisions challenging the policies or objectives of the Council, but Ms John was able to point to three examples, the most notable being the Trust’s rejection of plans put forward by the Council for it to merge with another body.
Mr Redfern made some points about finance. We can see no basis for his suggestion that the Council is in a position to bring the Trust down financially. The evidence appears to show that the Trust has substantial finances and a healthy income derived from rents paid by its commercial tenants. It also holds substantial capital assets in the form of freehold interests in property. The leases, or many of them, have many years to run. Its financial strength is evidenced by the many grants which it funds.
The Trust issues annual reports. Those from 2016 to 2023 described the organisation as having two main functions: managing its property portfolio and determining grant applications. The report for 2023/2024 added a third function: coordination and promotion of a cultural programme. Mr Redfern appeared to attach some significance to the change but we do not. The ‘additional’ function had been clearly proclaimed years earlier (albeit in slightly different language) – in the Articles of Association of 22 March 2010 if not before.
Mr Redfern also made a number of points about language used in the Trust’s reports and accounts describing its relationship with the Council. In particular, he drew attention to documents issued between 2010 and 2015 characterising the Council as the ‘main trustee’ of the Trust, having ‘deemed significant influence’ over it. Reports after 2015 described the Trust as an ‘associate’ of the Council.
Mr Redfern also told us that no company or charity numbers or contact details were included on the Trust’s website (at least after 2023) but three Council logos were shown.
Ms John presented us with an uncontroversial list of what we might call ‘non-powers’ of the Council. Three are worthy of mention. The Council has no power to: (a) issue directions to the Trust; (b) require prior authorisation to be sought for Trust decisions; or (c) suspend or annul after the event any decision taken by the Trust.
Ms John also made the uncontroversial point that, notwithstanding Mr Redfern’s suspicions, there is no evidence of the Council ever interfering in the Trust’s decision-making, or attempting to do so.
Submissions
Mr Redfern argued that the constitutional arrangements, taken with all the surrounding circumstances, pointed to a simple reality that the Council in practice exerts decisive authority over the Trust to the extent that the statutory test is met. He accepted that he was driven in part to rely on inference but submitted that the grounds for drawing inferences were compelling. The Trust had put forward feeble or trivial illustrations of its professed independence. Its true status was betrayed by the language which it had repeatedly used and now sought to resile from. Its disclosure was also suspect and included a number of heavily-redacted documents.
Ms John acknowledged Mr Redfern’s constitutional points concerning powers of the Council to influence membership and majorities in the Trust’s governing board but submitted that, on a proper balance, they must yield to powerful competing factors. In particular, there is no evidence of the Council exploiting its constitutional powers in order to manipulate or control decision-making by the Trust on particular issues. Rather, the evidence (such as it is) points to the Trust being mindful of its independent status and willing to defend it (the decision on the merger proposal being a telling example).
Analysis and Conclusions
Mr Redfern presented his case with energy and skill. He marshalled his resources well and deployed them judiciously. But his difficulty was that, ultimately, his case hung on speculation and inference, rather than evidence. We agree with Ms John that he could show that the Council was in a position to exert a degree of influence over the Trust. What he could not show was that, in fact, the Council exerts, or has exerted, influence resulting in an actual impact on the Trust’s decision-making, such that it has been precluded from determining in a genuinely autonomous manner the way in which it provides its services.
Mr Redfern rests his case very largely on the constitutional arrangements between the Council and the Trust (fundamentally, the right of the Council to appoint not less than half the Trust’s members from the cohort of elected members and to remove any member it has appointed) and argues in effect that those arrangements must (by their very nature) facilitate influence and control by the Council of the way in which the Trust performs its role. This argument looks at the relationship between the two entities from the perspective of the Council.
Mr Redfern’s closely-related submission (as we understand him) is that, given in particular the constitutional arrangements, members of the Trust (or at least a majority of them) must be expected to exercise their powers in a way calculated to serve the interests of the Council. The focus here is on the subjective motivation of the Trust in determining how to perform its functions. A similar argument in Fish Legal (in which the public authority was equipped with an impressive array of powers to enforce the obligations of the water companies) was rejected by the UT as ‘cynical’ [152].
We prefer to say only that the inferences contended for, resting as they do on mere suspicion, are not justified. We have several reasons. First, on the evidence presented, Mr Redfern demonstrates no more than potential control. Thatis not enough, as Fish Legal makes clear. What must be shown is actual influence to the extent that the subordinate body no longer determines in a genuinely autonomous way how to provide its services.
Second, there are several structural or constitutional factors which argue against the appeal. Three merit mentioning. (a) The Council has no shareholder rights over the Trust: as a company limited by guarantee, the Trust has no shareholders. (b) Members appointed by the Council are Councillors, not employees of the Council, and so are not bound by duties of loyalty as employees would be. (c) Members appointed by the Council, once appointed, become Directors and Trustees, and in each of those capacities become subject to legal obligations to act in the best interests of the Trust.
Third, Mr Redfern refers to the code of conduct applicable to Councillors, but that also does not require them to act for, or in the interests of, the Council. Rather, it requires them to adhere to the Nolan Principles and to act in the public interest. There is no question of any conflict between the obligations arising under the code of conduct on the one hand and the legal duties applicable to Directors and Trustees on the other.
Fourth, turning from constitutional and status points to the evidence about the Trust’s performance of its obligations, we again conclude that the Commissioner has the better of the argument. Mr Redfern’s core case has at its heart the implicit assertion that the purpose of the Council is (and presumably always has been) to control the way in which the Trust performs its functions. But if the Council’s purpose was to manipulate and control the Trust, one would have expected the foundational documents to equip it with explicit authority to do so. The absence of any reserved power in the Council to, for example, issue directions to the Trust, or suspend or annul its decisions, argues against the existence of such a purpose.
Fifth, our factual findings above also lean against the theory of a controlling purpose on the part of the Council. They include not only negative findings (the absence of any evidence of actual interference) but also positive evidence (in particular the merger decision and the evidence pointing to adherence to the conflict of interest policy).
Sixth, the theory of the Trust’s financial vulnerability to Council control is also, to our minds, unpersuasive. As we have said, it independently holds a number of leases of long duration. It also holds freehold assets. Mr Redfern’s argument based on speculation about the Trust being wound up seems to us to take theorising much too far. As the case-law demonstrates, our analysis must be by reference to facts and events as they are, not as they might be at some indeterminate point in the future.
Seventh, we also agree with Ms John that Mr Redfern can derive limited benefit from loose language and infelicitous phrasing in various documents published by the Trust over time. The law is clear in focusing on practical reality, rather than matters of presentation. Of course, careless communication may sometimes betray a truth which the author or speaker would wish to suppress. We are alive to that possibility. But we do not see it as a real point here.
Disposal
For the reasons stated, the appeal, although persuasively argued, is dismissed.
Anthony Snelson
Judge of the First-tier Tribunal
Dated:29 May 2026