Access to council housing information under FOI

The tribunals have issued a number of important rulings on FOI requests relating to council properties. Ibrahim Hasan reviews the key judgments.

Local authorities have, over the years, received many FOI requests for information about properties in their area. Requests have been made by, amongst others, squatters’ rights campaigners wanting to see lists of empty properties and by others for council property addresses where they wish to contact council tenants for various reasons e.g. to persuade them to vote against a housing stock transfer.

Council property addresses

Back in 2007, a Commissioner decision involving Braintree District Council concerned a request for a list of addresses of properties owned by the council. This was refused under section 40 i.e. that the information in question constituted third party personal disclosure of which would constitute a breach of the data protection principles.

The Commissioner considered that no such breach would occur and that it was therefore not correct to rely on the exemption. Although he accepted that there would be unfairness to individuals if they were publicly identified as members of a vulnerable group (e.g. asylum seekers, benefit recipients or women who have left violent partners) he did not consider that there would be any general unfairness to individuals in being identified as council tenants. In taking this view, he was mindful of the low inherent sensitivity of the data and that in practice the fact that a particular property is or is not owned by the council will be generally known to neighbours or because it is part of a known council housing estate.

However, the Commissioner was willing to accept that there may be particular properties which are not generally known to be owned by the council, the disclosure of the addresses of which might result in unfairness to some individuals. If for instance, the council had housed some vulnerable individuals at a secret location and this fact could be inferred from the address, then the Commissioner would accept that this information could be withheld. (See also the Decision Notice involving Mid Devon District Council (04/05/2006).

A more recent Tribunal decision (September 2012) contains the same reasoning. In Exeter CC v IC and Guagliardo (EA/2012/0073) the council challenged the Commissioner’s decision to require disclosure of all properties, residential and business, owned by or leased or rented to the council. The only exception to this was any property which was used to house individuals requiring protection in a secret location.

The Tribunal dismissed the appeal stating that the low level sensitivity of the information, coupled with the fact that most of the information was already available through public sources (albeit not in one tranche), meant that it would not be unfair or breach the data protection principles to disclose the information. The Tribunal dismissed the argument that the information could be used by marketing companies as much of the information was already available through purchase of the edited version of the Electoral Roll. Therefore the exemption in Section 40 (personal data) could not be relied upon.

Contrast the above decision with Anthony Turcotte v Information Commissioner and London Borough of Camden (12 June 2008) where the appellant challenged the council’s decision to disclose redacted addresses of housing association (CHG) properties. The council had removed house and flat numbers on grounds of personal data (section 40). It argued that to disclose the full addresses of the properties, when taken with Electoral Roll information, would allow individual occupiers to be identified. Because the qualification criteria for housing by CHG included homelessness or significant housing needs, the data would permit individuals to be identified as part of a distinct and potentially vulnerable group. The Tribunal agreed with this approach.

In the light of the above decisions it seems that, in the absence of case specific reasons e.g. properties being used to house vulnerable people, information about which properties in an area are owned by a council is disclosable under FOI.

Empty properties

Access to information about empty properties has always been a contentious issue. On the one hand local authorities holding such information claim that, if it is released, the properties will be targeted by squatters, criminals and drug addicts. They claim the information is exempt under section 31 (disclosure would be likely to prejudice the prevention or detection of crime). On the other hand, housing charities argue that it is unjust that there are thousands people living on the streets just next to properties which they could easily and cheaply occupy. The charity Empty Homes says that while there are about 730,000 unused properties in England and 930,000 across the UK, there are 1.7 million families on waiting lists for social housing in England and 2 million in the UK.

There have been a number of decisions over the years by the Commissioner and the Tribunal on this issue. In England and London Borough of Bexley v Information Commissioner (EA/2006/0060 & 0066) the Information Tribunal (as it was known then) reviewed the decision of the Information Commissioner to order Bexley Council to disclose the details of all empty properties in its area, together with the reasons why the properties are empty, and who owns them.

The Tribunal ruled that those properties owned by anyone other than individuals should be disclosed together with details of ownership. Whilst it accepted, contrary to the Commissioner’s view, that the section 31 exemption was engaged it ruled that the public interest in disclosure was greater. However details of properties owned by individuals should not be disclosed as it was personal data and so exempt under section 40. Disclosure of this information would be unfair to the individuals as their properties could be targeted by criminals and squatters.

A more recent decision by the First Tier Tribunal (Voyias v IC and LB Camden (EA/2011/0007)) ordered Camden Council to disclose, to a former member of the Advisory Service for Squatters, lists of empty properties meeting certain descriptions. The requestor specifically excluded properties owned by individuals. The Tribunal found that, whilst the section 31 exemption was engaged, the public interest in bringing empty properties back into re use was paramount. The then Housing Minister, Grant Shapps, was not happy about this decision, condemning it as a “squatter’s road map”.

Last year the Upper Tribunal in London Borough of Camden v The Information Commissioner & YV [2012] UKUT 190 (AAC), overturned the decision of the First Tier Tribunal and remitted the case to a differently constituted tribunal. Judge Jacobs’ found that the Tribunal had taken an unduly narrow view of the factors to be taken into account, when considering the public harm caused by criminal acts. It had been argued that crimes, e.g. criminal damage, would be encouraged by the publication of a list of empty properties. Judge Jacobs held that the financial and social consequences of such crimes had to be taken into account as well, even if indirect. That test also included an assessment of how existing behaviour might alter if information was released.

The Tribunal’s judgment on the remitted case was given on 22nd January 2013. This time it ruled in favour of the council; that the section 31 exemption was engaged and the public interest was against disclosure: “…the small weight that the public interest in disclosure bears does not come close to equalling the public interest in preventing the categories of crime we have identified in this decision.”

This is a very strong decision in favour of the council and one which will be welcomed by local authorities up and down the country which feared swathes of their empty properties being occupied by squatters. However, I do not think we have seen the last of these cases.

Ibrahim Hasan is director of Act Now Training.