First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Appeal Reference: EA/2018/0176
Decided without a hearing
On 17 January 2020
Before
JUDGE SOPHIE BUCKLEY
MALCOLM CLARKE
JEAN NELSON
Between
SURESH SINGH
Appellant
and
THE INFORMATION COMMISSIONER
First Respondent
and
THE LONDON BOROUGH OF HACKNEY
Second Respondent
DECISION
1. For the reasons set out below the appeal is dismissed.
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REASONS
Introduction
1. This is an appeal against the Commissioner’s decision notice FS50786336 of 24
May 2019 which held that the London Borough of Hackney (‘the Council’) was
entitled to rely on s 31(1)(a) of the Freedom of Information Act 20000 (FOIA)
(prejudice to the prevention or detection of crime) to withhold the requested
information.
2. We note from correspondence with the tribunal office that Mr Singh is disabled
and has unspecified physical and mental health conditions. Mr Singh has been
given additional time to submit written submissions. He has not done so and
has not requested additional time. He has asked that the delay to the
proceedings be minimised. It is therefore in the interests of justice to proceed
today on the basis that it appears that Mr Singh does not wish to make any
further submissions.
Request and Decision Notice
3. Mr Singh made the request which is the subject of this appeal on 9 July 2018:
In light of the recent decision by Judge Fiona Henderson to order Camden
Council make public its list of empty housing, and the previous decisions to
make lists of long-term empty Lambeth and Bexley public, could you please
send me a copy of the:
(a) Addresses of all long-term empty private and council owned homes that are
within the Hackney Borough Council.
(b) Addresses of all long-term empty commercial properties within the
Hackney Borough Council.
(c) The names of the owners of those properties referred to in (a) and (b).
4. The Council replied on 8 August 2018 confirming that it held information
within the scope of the request but refusing to provide the information relying
on s 31(1)(a) FOIA, save in relation to certain Council owned empty
commercial properties which were listed on the Council’s website.
5. The Council upheld its decision on internal review and informed Mr Singh by
email dated 3 September 2018 .
6. Mr Singh complained to the Commissioner on 4 September 2018.
7. In correspondence with the Commissioner the Council also sought to rely on s
40(2) FOIA.
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8. In a decision notice dated 24 May 2019 the Commissioner concluded that s
31(1)(a) was engaged. She accepted that the prejudice being claimed related to
the interests which the exemptions was intended to protect; that it was not
trivial or insignificant; that it was plausible to argue that there was a causal link
between disclosure of the information and the prejudice; and that disclosure
would be likely to prejudice the prevention of crime.
9. Weighing the factors in favour of the exemption being maintained against the
public interest in disclosure, she concluded that the public interest in
maintaining the exemption outweighed the public interest in disclosure.
Grounds of Appeal
10. The Grounds of Appeal replicate the request, stating:
In the light of the recent decision by Judge Fiona Henderson to order Camden
Council to make public its list of empty housing, and the previous decisions to
make lists of long-term empty properties in Lambeth and Bexley public.
In considering this request, I hope you will take into account Judge Henderson’s
statement on releasing the empty housing list in Lambeth:
“The Tribunal is satisfied that publication of this 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 in favour of disclosure.”
The Commissioner’s response
11. The Commissioner’s response states that the reliance on the ‘recent’ decision
of Judge Fiona Henderson is misguided. The decision of Judge Fiona
Henderson relied on by Mr Singh is the decision of the first tier tribunal in
Voyias v Information Commissioner & London Borough of Camden
EA/2011/0007 (2 September 2011) which was overturned on appeal by the
Upper Tribunal in London Borough of Camden v Information Commissioner
& Voyias [2012] UKUT 190 (AAC). On remittal a first-tier tribunal concluded
that the information was lawfully withheld: Voyias v Information
Commissioner v London Borough of Camden EA/2011/007 (remitted
decision 22 January 2013) in which the tribunal stated that:
…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.
12. There are no other grounds of appeal identified and the Commissioner relies
on the reasoning in her Decision Notice and submits that it is in accordance
with the Upper Tribunal’s reasoning in Voyias.
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The Council’s response
13. The request is based on a fundamental misconception of the application of s
31(1) to empty property information. The first-tier tribunal decision on which
the appeal is based (Voyias)was overturned by the Upper Tribunal which held
that the tribunal had erred in its application of the public interest test. On
remittal a differently constituted first-tier tribunal held in clear terms that the
public interest balance favoured maintaining the exemption.
14. Since the request in Voyias s 144 of the Legal Aid, Sentencing and Punishment
of Offenders Act 2012 has made it a criminal offence for a person to knowingly
enter a building as a trespasser, living or intending to live in it.
Section 31(1) - Engagement of the exemption
15. There can be no serious dispute that disclosure of lists of empty residential and
commercial properties would, at the least, be likely to prejudice the prevention
of crime in the Hackney area.
Public interest
16. There is a strong public interest in the prevention of crime in the context of
realistic direct and indirect impacts arising from common sense and the
specific experience of the Council, including criminal damage; squatting; theft;
anti-social behaviour; the costs to the public purse of eviction, law enforcement
and property refurbishment; indirect costs; social and psychological detriment
to neighbours and costs of securing empty properties.
17. The Council accepts that disclosure will serve the general interests of
transparency and openness. The Council does not accept that it will serve the
public interest to any material degree in causing empty properties to be
brought back into use: Mr Singh does not explain how it would have this effect;
the Council is taking proactive measures to bring residential properties back
into use; and the degree to which any public debate is assisted is undermined
by the vague and undefined use in the request of ‘long-term’.
Section 40 - Engagement of the exemption
18. Section 40(2) applies to a portion of part (a) of the request: names of owners of
empty private homes. They will be generally identified natural persons. The
Council anticipates that the vast majority of owners of commercial property
(part (b)) will be legal and not natural persons.
19. There is no good reason that a data subject would reasonably expect that the
Council would disclose a list of empty residential property and identity the
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data subject as the owner. It would be manifestly unfair to do so and would be
likely to cause the data subject distress and fear of harm to their property.
20. There is no identifiable lawful basis for disclosure. It is not necessary to
produce a ready-made list linking property and owner, when an individual
owner could be traced through the Land Registry.
21. In relation to addresses rather than names, the Council accepts that an owner
could reasonably expect that they may be identified in relation to a property
through the Land Registry, and that if it is in the public interest to publish
under s 31, it is likely to be necessary and proportionate within Article 6(1)(f),
and the Tribunal should instead have regard to the likely impact on individual
data subject owners as part of the public interest balance under s 31(1) FOIA.
The Council’s written submissions
22. The Council’s written submissions largely replicate its response, but it makes
the following additional points.
Section 31(1)(a)
23. The engagement of s 31(1)(a) arises from the increased risk of property-related
crimes. The Council accepts that there will be opportunistic crime in relation
to empty properties of which criminals become aware in other ways. It is
implausible to suggest that someone could be aware of all empty properties
without a list. Non-opportunistic, planned and targeted crime is rendered
significantly easier by the publication of a ready-made list of apparently vacant
properties.
Section 40
24. The Commissioner has imposed a monetary penalty notice on the Royal
Borough of Kensington & Chelsea for releasing in response to a FOIA request
a list of empty properties in the vicinity of the Grenfell Tower which
accidentally revealed the identities of the owners.
25. Finally, the tribunal took account of the Council’s short supplementary written
submissions made in the light of the first-tier tribunal decisions in Sheffield
City Council v Information Commissioner & Chait (EA/2018/0055) and
Westminster City Council v Information Commissioner & Chait
(EA/2018/0033).
Legal framework
S 31 – law enforcement
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26. Section 31(1) FOIA provides a qualified exemption subject to the public interest
test in respect of information relevant to specific areas of law enforcement.
Section 31(1)(a) provides:
(1) Information which is not exempt information by virtue of section 30 [investigations
and proceedings conducted by public authorities] is exempt information if its disclosure
under this Act would, or would be likely to, prejudice-
(a) the prevention and detection of crime,
27. The exemption is prejudice based. ‘Would or would be likely to’ means that
the prejudice is more probable than not or that there is a real and significant
risk of prejudice. The public authority must show that there is some causative
link between the potential disclosure and the prejudice and that the prejudice
is real, actual or of substance. The harm must relate to the interests protected
by the exemption.
S 40 – personal Information
28. The relevant parts of s 40 of FOIA (after the coming into force of the Data
Protection Act 2018 ‘DPA’ and the General Data Protection Regulation ‘GDPR’)
provide:
(2) Any information to which a request for information relates is also exempt
information if-
(a) it constitutes personal data which does not fall within subsection (1), and
(b) the first, second or third condition below is satisfied.
(3A) The first condition is that the disclosure of the information to a member of the
public otherwise than under this Act-
(a) would contravene any of the data protection principles, or
(b) would do so if the exemptions in section 24(1) of the [DPA] (manual
unstructured data held by public authorities) were disregarded.
…
(7) … “the data protection principles” means the principles set out in-
(a) Article 5(1) of the GDPR, and
(B) section 24(1) of the [DPA]…
(8) In determining for the purposes of this section whether the lawfulness principle
in Article 5(1)(a) of the GDPR would be contravened by the disclosure of the
information, Article 6(1) of the GDPR (lawfulness) is to be read as if the second sub-
paragraph (disapplying the legitimate interests gateway in relation to public
authorities) were omitted.
29. The effect of this provision is that personal data of an individual other than the
requestor can only be disclosed if disclosure is compatible with the data
protection principles. If disclosure would contravene the principles the
information is exempt from disclosure. This is an absolute exemption not
subject to the public interest test.
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30. Personal data is defined in s3(2) DPA as:
… any information relating to an identified or identifiable living individual
31. The first data protection principle is the one of relevance in this appeal. This
provides that:
Personal data shall be processed lawfully, fairly and in a transparent manner in
relation to the data subject. (Article 5(1)(A) GDPR)
32. ‘Lawfully’ requires that one of the conditions in Article 6(1) GDPR is satisfied.
The only potentially relevant condition is Article 6(1)(f) which provides that
the disclosure is:
necessary for the purposes of legitimate interests pursued by the controller or by a
third party, except where such interests are overridden by the interests or
fundamental rights and freedoms of the data subject which require protection of
personal data, particularly where the data subject is a child.
33. Therefore disclosure must be fair and transparent and one of the conditions in
Article 6 met.
34. Fairness requires the consideration of fairness to the data subject, including his
or her reasonable expectations, to the data user, the consequences of disclosure,
the general interest in transparency and the purpose of the DPA.
35. The case law on what is now Article 6(1)(f) has established that it requires the
following three questions to be answered:
1. Is the data controller or the third party or parties to whom the data are
disclosed pursuing a legitimate interest or interests?
2. Is the processing involved necessary for the purposes of those interests?
3. Is the processing unwarranted in this case by reason of prejudice to the
rights and freedoms or legitimate interests of the data subject?
36. Necessary reflects the European concept of proportionality: a measure would
not be necessary if the legitimate aim could be achieved by something less.
37. The definition of "personal data" consists of two limbs:
i) Whether the data in question "relate to" a living individual and
ii) Whether the individual is identifiable from those data.
38. The tribunal is assisted in identifying ‘personal data’ by the cases of Ittadieh v
Cheyne Gardens Ltd [2017] EWCA Civ 121; Durant v FSA [2003] EWCA Civ
1746 and Edem v Information Commissioner [2014] EWCA Civ 92, from which
the following principles are drawn.
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39. In terms of ‘identifiability’, personal data covers, for example, the name of a
person in conjunction with his telephone details or information about his
working conditions or hobbies, as well as information that a person has been
injured and is on half time, or his name and address.
40. In Durant, Auld LJ, giving the leading judgment said at [28]:
Mere mention of the data subject in a document held by a data controller does
not necessarily amount to his personal data. Whether it does so in any particular
instance depends on where it falls in a continuum of relevance or proximity to
the data subject as distinct, say, from transactions or matters in which he may
have been involved to a greater or lesser degree. It seems to me that there are
two notions that may be of assistance. The first is whether the information is
biographical in a significant sense, that is, going beyond the recording of the
putative data subject's involvement in a matter or an event that has no personal
connotations, a life event in respect of which his privacy could not be said to be
compromised. The second is one of focus. The information should have the
putative data subject as its focus rather than some other person with whom he
may have been involved or some transaction or event in which he may have
figured or have had an interest, for example, as in this case, an investigation into
some other person's or body's conduct that he may have instigated. In short, it
is information that affects his privacy, whether in his personal or family life,
business or professional capacity.
41. In Edem Moses LJ held that it was not necessary to apply the notions of
biographical significance where the information was plainly concerned with
or obviously about the individual, approving the following statement in the
Information Commissioner's Guidance:
It is important to remember that it is not always necessary to consider
'biographical significance' to determine whether data is personal data. In many
cases data may be personal data simply because its content is such that it is
'obviously about' an individual. Alternatively, data may be personal data
because it is clearly 'linked to' an individual because it is about his activities and
is processed for the purpose of determining or influencing the way in which
that person is treated. You need to consider 'biographical significance' only
where information is not 'obviously about' an individual or clearly 'linked to'
him.
The Task of the Tribunal
42. The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to
consider whether the decision made by the Commissioner is in accordance
with the law or, where the Commissioner’s decision involved exercising
discretion, whether she should have exercised it differently. The tribunal may
receive evidence that was not before the Commissioner and may make
different findings of fact from the Commissioner.
Issues
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43. The issues we have to determine are as follows:
Section 31(1)(a)
1. If the disputed information, or any part of it, were released, would it
prejudice, or be likely to prejudice, the prevention of crime?
2. If so, does the public interest in maintaining the exemption outweigh the
public interest in disclosing it?
Personal Data
3. Is any of the disputed information personal data?
4. To the extent that any of the information in the scope of the Requests
amounts to personal data, would the release of that information breach the
First Data Protection Principle, i.e. would disclosure be fair, transparent
and lawful?
5. When deciding if disclosure would be lawful the tribunal will ask itself:
(i) Is the data controller or the third party or parties to whom the data are
disclosed pursuing a legitimate interest or interests?
(ii) Is the processing involved necessary for the purposes of those interests?
(iii)Is the processing unwarranted in this case by reason of prejudice to the
rights and freedoms or legitimate interests of the data subject?
Evidence
44. We have read an open bundle of documents, which we have taken account of
where relevant.
45. We read statements on behalf of the Council from Steven Davison,
Enforcement Team Leader for the Council, and Gurpaje Singh, Corporate
Estate Manager for the Council.
Discussion and conclusions
Section 31(1)(a): If the disputed information, or any part of it, were released, would it
prejudice, or be likely to prejudice the prevention of crime and if so, does the public interest in
maintaining the exemption outweigh the public interest in disclosing it?
46. As the first tier tribunal in Hogan Oxford City Council and the Information
Commissioner (EA/2005/0026, EA/2005/0030) observed at para 27, where the
specified activity or interest which would be likely to be prejudiced is a public
interest, like the prevention of crime, there is an obvious overlap between
whether or not the section is engaged and any subsequent application of the
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public interest test. We bear in mind that although the relevant factors may
overlap, the questions that we have to answer are different.
47. The applicable interest in this case is the prevention of crime. It is important to
note that s 31(1)(a) is engaged where there would be likely to be prejudice to
the prevention of crime. It does not require the respondent to show that
disclosure will lead to an increase in crime.
48. The nature of the prejudice being claimed by Hackney is to the prevention of
property crimes and associated costs, namely: criminal damage; squatting;
theft; anti-social behaviour; the costs to the public purse of eviction, law
enforcement and property refurbishment; drug use; indirect costs; social and
psychological detriment to neighbours and costs of securing empty properties.
49. When deciding if the section is engaged, we must decide if the Council has
satisfied the evidential burden of showing that some causal relationship exists
between the prejudice being claimed and the potential disclosure; if the
prejudice is real, actual or substantial; and whether the chance of prejudice is
more than a hypothetical or remote possibility i.e. is there a real and significant
risk of prejudice?
50. Squatting in non-residential properties is not a crime, but is often associated
with criminal offences such as criminal damage and anti-social behaviour
offences. Squatting in residential properties is a crime. The witness statements
produced by the Council show that squatting, and associated criminal offences
are a current and significant problem in Hackney in both residential and non-
residential properties. The statements show that the Council has experience of
metal theft and illegal raves in empty properties. The statements show that all
the above are associated with criminal damage.
51. Although these crimes do already occur without the publication of the list, we
accept that publication of a ready-made list of empty properties will make such
crimes easier to commit. There is no evidence that the publication of the list
will, on the balance of probabilities, lead to an increase in such crimes, but that
is not what the statute requires.
52. For the reasons set out above, we find that section 31(1)(a) is engaged. We find
that there is a real and significant risk that property crimes would be made
easier and therefore more likely to occur by the release of this list; and that the
provision of a readymade list of empty properties makes it easier for criminals
to identify targets for those crimes. We find that the release of the list would
therefore be likely to prejudice the prevention of crime.
53. Turning to the public interest, we conclude that there is a substantial public
interest in not making crime easier, and in the light of the evidence that these
crimes are a current problem, taking into account our discussions and
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conclusions set out above, and noting the direct and indirect realistic
consequences associated with crimes of this nature (based on the Council’s
evidence and as a matter of common sense) such as the attendant social and
financial costs, we find that there is a significant public interest in maintaining
the exemption.
54. We accept that there is some public interest in disclosure. Revealing details of
empty properties is likely to assist the public in holding the council to account
in relation to its efforts to resolve housing shortages. Further the requested
information would go some way to informing the public debate in this area.
55. However, we conclude that these interests do not require the level of detail
requested and it is that detail which leads to the risks highlighted above. There
are other means by which the public debate could be informed and the Council
held to account: for example simply knowing the numbers of empty properties,
perhaps broken down by area, would effectively serve the same public
interests without the attendant impact in relation to the prevention of crime.
Indeed, the Council could have and still could send Mr Singh those numbers,
which would serve the purpose of contribution to the debate/holding the
Council to account that we think lies behind the request.
56. Further we note that this issue is already on the Council’s radar – there was
fairly limited evidence before us on the steps that they are already taking, but
it is clear that the Council is already making some attempts to deal with this
issue.
57. Overall for the above reasons we conclude that the relatively limited public
interest in disclosure is outweighed by the significant public interest in
maintaining the exemption.
S 40 – personal data
58. Having concluded that the information can be withheld it is not necessary for
us to go on to consider if any of it is exempt under s 40.
Conclusion
59. For the reasons set out above the appeal is dismissed. Our decision is
unanimous.
Signed Sophie Buckley
Judge of the First-tier Tribunal
Date: 4 February 2020
Promulgated: 5 February 2020
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