Tribunal orders council to disclose list of empty homes after FOI request

September 8, 2011

The First-tier Tribunal has ordered Camden Council to publish a list of empty properties in the borough after a freedom of information request by an advisor to squatters.

The ruling prompted an angry response from Housing Minister Grant Shapps who described it as “bizarre”, while Camden said the decision potentially left local authorities and property owners as “hostages to fortune”.

The freedom of information request was made in August 2009 by Yiannis Voyias, a member of the Advisory Service for Squatters.

He had asked Camden to disclose “the address of every void property in the LB Camden, in which a non individual is listed as either being the owner or as having a material interest in the property”.

Voyias later clarified that he only wanted information in relation to residential properties. The words “material interest” were included to ensure housing associations were caught by the request.

The council refused the request on 22 September 2009, relying on s. 43(2) of the Freedom of Information Act, where information is exempt information if its disclosure under the Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

Camden’s decision was confirmed after an internal review. The council also relied on exemptions under s. 12(1) – the cost of compliance with the request would exceed the appropriate limit – and s. 21(1) FOIA – the information was reasonably accessible to the applicant otherwise than under s.1.

Voyias then complained to the Information Commissioner, arguing that Camden had failed to take into account his clarification that the request related to residential properties.

The council then withdrew its reliance on s. 43(2), s. 12(1) and s. 21(1) and chose instead to rely on s.31(1)(a) – where disclosure would, “or would be likely to”, prejudice the prevention or detection of crime.

The Information Commissioner suggested that Camden had provided very limited arguments in support of the exemption it was now relying on. Those arguments that were employed focused principally on its knowledge of Voyias and his possible motivation for making the request.

The Information Commissioner nevertheless went on to decide that s. 31(1)(a) was engaged and that the public interest in avoiding prejudice to the prevention of crime outweighed the public interest in disclosure. There was therefore no breach of s. 1(1) of the FOIA.

Voyias then took the case to the First-tier Tribunal (Information Rights). The disputed information related to lists of the council’s own records of empty council managed properties and properties owned by non individuals which had been confirmed as empty by Camden.

The Tribunal found that:

squatting was not a crime
the lack of evidence as to the prevalence of e.g. anti-social behaviour in the renting population versus the squatting population was troubling
the list, if published, would be of use to organized squatters rather than opportunistic, disorganized ones
extreme examples submitted by Camden of squatting being associated with crime and anti-social behaviour did not refer to the type of individuals that would make use of the list
evidence of crime and anti-social behaviour provided by Camden Police was associated with drug use and the list would not be of use to that type of squatter
there would be an increase in the number of properties squatted if the list was published, even if the number of squatters remained the same, “as the list would add to the list of available premises known to a motivated and organized squatter”
a significant proportion of entries into empty premises – and subsequently securing them – would involve some criminal damage
organised squatting was linked to certain types of criminal activity
the list could provide another method for identifying potential properties for ‘stripping’ (or removing things of value), an activity principally of organized criminals rather than squatters
s. 31(1)(a) was engaged “in that it is likely that disclosure of the disputed information would have a negative impact on the prevention of crime”
The level of prejudice was real, actual and of substance.

However, s. 31 is a qualified exemption and therefore requires a balancing exercise between the public interest in maintaining the exclusion and the public interest in disclosure.

The Tribunal considered that the public interest factors in maintaining the exemption had to relate to the particular interest which the exemption was protecting – in this case the prevention of crime.

“The Tribunal does not consider that any perceived social disadvantage of living next door to squatters, or the costs of the eviction of squatters are matters that the Tribunal is entitled to take into consideration since squatting is not illegal,” it said. “However, public costs e.g. the costs of repair and extra security to council buildings to prevent criminal damage is a legitimate factor as it is attributable to the interest that the exemption is protecting.”

Voyias argued that disclosure would promote openness, transparency and accountability in local government. It would also rejuvenate the empty homes debate, raise awareness and bring more pressure on both central and local government to improve their policy and ‘commitment’, he said.

Academic and policy-orientated research and organisations like English Heritage and the Empty Homes Agency also stood to benefit, he claimed.

Camden and the Information Commissioner accepted that this was a legitimate and important public interest. However, they both argued that the release of management information and statistics was a more proportionate way of achieving a similar result. The council pointed to a range of information that was already publicly available.

The Tribunal said it was satisfied that there was already a “lively and informed debate in this area”, but recognised that specific examples “provide colour” and were important in increasing public understanding and local involvement.

“It puts the specific empty properties into the limelight, may be an added tool to incentivize owners to reuse their properties and would enable the general public to walk up to a ‘void’, and see for themselves what is going on, whether it is being worked on, or has been left in limbo,” it said.

“Although the Tribunal recognizes the various reasons why a property may be vacant including bereavement, the Tribunal is satisfied on the balance of probabilities that this remains a very strong public interest factor in favour of disclosure.”

The Tribunal also noted that there was a strong public interest in bringing empty properties into reuse. It did acknowledge that the government and Camden had made this a priority, with the council exceeding its targets in previous years. The council also claimed that disclosure would neither assist it nor make any difference to its commitment to tackling the issue of voids.

But the Tribunal suggested that council-led initiatives were “only one side of the coin” and a different approach was likely to increase the field of those wishing to become involved.

It said it was satisfied that publication of the list “would bring a proportion of the void properties back into use earlier than would otherwise be the case and that consequently this is a strong public interest factor in favour of disclosure”.

Turning to the factors advanced in favour of withholding the information, these included that “disclosure would facilitate squatting and associated crime and other crime associated with empty properties”.

It was argued that this would, as a result, undermine the feeling of security of people living in neighbouring houses and cost public money to prevent.

The Tribunal said it acknowledged that this was an “inherently strong” public interest.

Camden and the Information Commissioner identified the crime potentially attributable to the disclosure of the list as “arson, anti-social behaviour, drug related crime (including violent crime), criminal damage and organized stripping”.

However, the Tribunal said it was satisfied that the disclosure of the disputed information would not lead to the majority of the crime associated with empty properties. “Consequently the impact upon neighbours of crime is limited to the type of crime we consider attributable to the use of the list rather than that involved in all empty properties.”

The Tribunal said it accepted that the impact of a crime “may bear no correlation to its monetary value, (and the fact that criminal damage may be of relatively low cost does not mean that the surrounding neighbours would not feel any less vulnerable) and there is a public interest in the prevention of all crime including property crime”.

But it said that in assessing the weight to give these factors the Tribunal took into consideration the nature of the crimes that it considered would follow disclosure and found that they were “at the lower end of victim impact and that in some cases the presence of organized squatters itself will prevent the use of the premises for more socially disruptive crime (e.g. use as a crack house)”.

Allowing the appeal in part, the Tribunal found that the Commissioner was right to conclude that s.31 was engaged “although the Tribunal disagrees with the nature of the crime that it is likely would be attributable to disclosure of the disputed information”.

It also concluded that the balance of public interest lay in disclosure and the Commissioner was wrong to find there was no breach of s.1(1) FOIA.

Following the ruling on 2 September, Camden has 28 days within which to provide the information.

Housing Minister Grant Shapps said: "This is a bizarre decision that flies in the face of common sense. Rather than trying to prevent the anti-social and unfair practice of squatting, this judge is instead insisting that Camden Council publish a 'squatter's road map' - which in other areas has led to the numbers of squats doubling.

"We've been clear that we want to bring more empty homes back into use, which is why I'm making £100m available to help council-led efforts to do so and rewarding those that house people in former empty homes through the New Homes Bonus, by matching the council tax raised on those properties for six years.

"But I also want to shut the door on so-called 'squatter's rights' once and for all, and end the misery, expense and hassle that far too many people have had to endure for too long, which is why we are consulting on making squatting a criminal offence."

A spokesman for Camden said: "We remain extremely concerned with the decision that requires us to divulge information that could be used by those seeking to occupy not just council owned, but also private property as squats.

"This judgement arguably leaves councils and property owners as hostages to fortune. In our opinion it will lead to an increase in squatting and additional security and legal costs will be incurred that ultimately will be borne by taxpayers, council tenants and the owners of private property.”

The spokesman said Camden would be considering its legal options as it continued to believe that it was not in the interests of its residents to release this information.

Philip Hoult