Legal Department, Civic Offices, New Road, Grays, Thurrock, Essex, RM17 6SL
Tel: (01375) 652824 Fax: (01375) 652782
DX 141040 GRAYS 3
Thurrock Council welcomes Typetalk calls
Our Ref: MD1107.203.DL.1205 |
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3443/002716 |
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Date: 29th May 2009 |
Email: [email address] |
Private & Confidential
Mr. Stephen Nash
[FOI #10590 email]
Dear Mr. Nash
Re: State 1 Complaint - Freedom of Information Act 2000 complaint
I have been asked to conduct a Stage 1 Complaint Review on this matter pursuant to an email dated and received 20th May 2009 from Information Management of Thurrock Council in which I was advised that the complainant, Mr Stephen Nash, had indicated that he disagreed with the application of a Freedom of Information (FOI) exemption applied by the Council. I am aware from previous advice from Information Management that if the complainant remains unhappy after this Stage 1 process rather than progressing to Stages 2 and 3 this matter will then go direct to the Information Commissioner.
I have noted the details of the complaint which was submitted via an email on 18th May 2009 to Information Management from Mr Nash in which he indicates following the case of London Borough of Bexley - v - Mr Colin P England where it was held by the Information Tribunal that the Council must disclose the addresses of “long term empty and uninhabitable empty properties that are not owned by individuals”
I believe it is not within the area of dispute that information relating to empty premises owned by individuals has been withheld and therefore I have not considered Section 40 exemption in the context of a request for personal data by a third party.
However I note that the Council's Information Management have sought to rely on Health and Safety (Section 38) exemption and I further note that the case of London Borough of Bexley - v - Mr Colin P England involved a detailed consideration of Law Enforcement (Section 31) exemption. I will consider both these potential exemptions in the current context in order to decide whether the Council has properly applied the provisions of the Freedom of Information Act 2000 to the request; whether internal procedures have been complied with and whether disclosure was made in accordance with those procedures.
/Contd....
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I have considered the application of the Law Enforcement Section 31 exemption initially as this was a central issue in the quoted England case.
In this context I believe it is an implication of the current complaint that the request to Thurrock Council for details of long term empty properties is similar or even synonymous with that requested of the London Borough of Bexley in the said England case and that other authorities have not sought to exempt the data relating to empty premises not owned by individuals and therefore the finding in the England case should apply to this request
I accept that the England case related to a broadly similar request to Bexley Council and that the Council there sought to resist disclosure by application of Section 31 in so far as an awareness of the location of empty properties may result in some elements of society taking advantage of that knowledge resulting in an increase in some sorts of crime which has an adverse impact on the owners
I have noted that in the England case the Information Tribunal considered that Section 31 was engaged and heard and accepted evidence that disclosure of vacant property details could increase criminal activity and that such activity was detrimental to the area as a whole not just to the owners of vacant properties but despite that drew the fine line that it was in the public interest to protect the `natural person' owners but because of the lack of personal detriment in disclosure of locations of property owned by non individuals these should be disclosed
This was a balancing of public interests and by its nature may vary from case to case or area to area;
Therefore I have reviewed the Section 31 exemption in the context of Thurrock Borough Council's authority area to try to establish whether the outcome of weighing public interests in favour or against disclosure of the addresses of empty premises not owned by individuals would have the same outcome as in the England case although in an admittedly different area.
I am informed that the situation in Thurrock Borough Council in relation to vacant property not owned by individuals to date is not sufficiently distinguishable to lead to a different outcome as to the balance of public interests
I have also considered Health and Safety Public (Section 38) exemption and carefully noted the grounds set out there by Information Management but consider there is an absence of evidence to support a displacement or outweighing of the general public interest in disclosure
In both Section 31 and Section 38 I have noted Information Management have not purported to issue a blanket denial but have to date provided details of empty premises by area if not by specific address
/Contd....
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Procedures
I have reviewed the procedures employed by the Council's Information Management in dealing with this request which provide that a dedicated Freedom of Information Act 2000 officer requires information from data holders across the authority and is responsible for consideration of any applicable exemptions and public interest test. The procedure is supported by advice from the Information Manager where appropriate. I find that those procedures were followed in this instance.
Conclusion
I find that the Authority's response to your request was in full recognition of its obligations under the Act their approach being based on weight being given to the public's interest in knowing versus the detriment caused by it finding out. However I find that in the light of the England decision there is insufficient local evidence to distinguish the Tribunal approach and that public interest in knowing has not been outweighed by any evidence of detriment under either Sections 31 or 38. This balance may change if further relevant and cogent local evidence was adduced by the authority but I uphold the complaint in relation to the supply of addresses of long term empty commercial properties not owned by individuals within the borough but for the sake of clarity not those owned by individuals to which Section 40 exemption applies
I trust I have been able to address the concerns you have raised to your satisfaction but, if, after contacting us, you are not content with the outcome, you may ask the Information Commissioner for a decision. The Information Commissioner can be contacted at: The Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.
Yours sincerely
David Lawson
Interim Deputy Head of Legal Services