Original article ISPreview UK:Read More
Telecoms giant BT and Openreach are appealing a recent decision by the Information Commissioner’s Office (ICO), which made them subject to public information requests about their UK broadband network under the Environmental Information Regulations (EIR). The decision could potentially provide communities and rivals with a new avenue for extracting useful info.
The Environmental Information Regulations (EIR), alongside the Freedom of Information Act (FoIA), currently exist to grant the public the right to access “environmental information” held by public authorities. This covers any recorded information held by public authorities in England, Wales and Northern Ireland (Scottish public authorities are separately covered by the Environmental Information (Scotland) Regulations 2004).
Suffice to say that Openreach (BT) is a private company and thus, perhaps understandably, initially chose to ignore an info. request about their network – seemingly placed under the EIR – when it was made in September 2024. The request came from somebody who wanted to know more about the operator’s “fibre-based” broadband ISP network in the rural Lancashire (England) village of Nateby, which is home to less than 600 people.
“I request all your documentation and correspondence appertaining to the provision of fibre-based Internet communication to the village of Nateby, Lancashire, between August 2014 and August 2024,” said the original request. Just for context, Openreach’s FTTP broadband network passes nearby to this community, but doesn’t appear to enter the main area (it’s an intervention area under Project Gigabit and will hopefully be reached via the newer Call-Off 1 Contract).
The issue later became the subject of a complaint to the ICO, which in April 2025 ruled that “Openreach is subject to the EIR and was therefore under a duty to respond to the request“. Crucially, EIR requests do apply to some bodies that are not normally subject to a normal FoIA and the ICO ruled that BT “is a public authority for the purposes of the EIR” and so too is Openreach.
Openreach had attempted to argue that it was merely a private company carrying on a business for the benefit of its shareholders, but interestingly, the Commissioner ultimately took the view that Openreach “has been entrusted with functions that the state would normally carry out“. The ICO made the further point that many water companies are also private, yet are still considered “bodies performing functions of public administration for the purposes of the EIR“.
ICO’s Position on Openreach EIR Requests
The Commissioner is therefore satisfied that the state, acting via Ofcom, by virtue of issuing a direction to BT (or strictly speaking, deeming it to have already received such a direction) and, by extension, Openreach Ltd, thereby exercising its statutory powers under section 106 of the Communications Act, has entrusted both BT and Openreach Ltd with administrative functions. This entrustment has a clear basis in statute. He is satisfied that this is sufficiently similar to the process of appointment of undertakers under the Water Industry Act and that those undertakers are deemed to have been entrusted with the powers of the state.
The Commissioner considers that providing a telecommunications network is something that has an environmental impact. Just because a particular task isn’t being carried out for the benefit of the environment doesn’t mean that it does not have a environmental impact.
In order to create and maintain a network, Openreach Ltd can use mobile broadband – which involves emission of radio waves. However, in practice, most connections are made by the laying of new cables – usually underground. This requires the disturbance and removal of soil – meaning it directly affects the elements of the environment.
The Commissioner is therefore satisfied that Openreach Ltd has been entrusted, by the state, with functions of the state, related to the environment and that these functions have a statutory basis. The entrustment test is thus satisfied.
The issue is likely to give both BT and Openreach an additional layer of admin to tackle in the future, although it remains unclear how much useful information could actually be extracted using this approach. Openreach can still withhold details that are considered to be commercially sensitive or potentially a risk to national security, which could conceivably cover quite a wide remit.
In some other circumstances the network operator may also be able to refuse such a request, such if they don’t in fact hold the requested information, the request is too broad or the information is still being compiled etc. Furthermore, this also places a question mark over other network operators of scale and whether they could become subject to such requests too, although Openreach is currently the only one deemed to hold Significant Market Power (SMP) by Ofcom.
In addition, the original request doesn’t – at first glance – appear as if it was actually intended to seek environmental information (possibly a mistake?). The ruling only requires Openreach to supply “environmental” specific info. on that part of their network (i.e. land development, pollution levels, energy production, and waste management), which in practical ‘recorded’ terms will probably be quite limited.
However, the ICO’s decision is not yet the end of this story. ISPreview did ask Openreach for a comment on this decision and more details on what information they expected to be able to provide under the ICO’s ruling, but a spokesperson declined to provide that information because they’re in “the process of appealing the ICO decision“.
ICO Ruling on Openreach
https://ico.org.uk/action-weve-taken/decision-notices/2025/04/ic-340468-b4b0/