ICO and Tribunal decisions
‘Empty Property Address Data’
S31(1)(a)
Private Properties
Details of empty private properties are exempt from
disclosure. This decision is based on previous Commissioner and Tribunal decisions,
the most notable of which are the L B of Bexley decisions EA2006-0060&0066.
Subsequent to these decisions, and following a number of similar decisions, the
specific point of the address of empty private properties was decided upon in case
FS50259951.
Council Properties
Empty Council properties ready for Tenants (both residential and commercial) are
already published on the Council's website and through local estate agents. This
information is therefore also exempt under section 21 of the FOI Act.
Details of longer term empty Council properties [say 6 months plus] are likely to be
exempt, though there is yet to be a tribunal decision specifically on this point. Such
properties come into a number of categories including difficult to let, in need of major
refurbishment including internal and/or structural and being prepared for or in the
process of disposal.
Rationale
In the Bexley case the applicant had requested a list of empty houses compiled by the
council; these were both for empty Council properties and private properties. The
Tribunal established that providing such a list was likely to increase the risk of crime
against those properties and so s31(1)(a) was engaged.
In considering the public interest in maintaining the exemption the Tribunal heard
evidence about the effects that crime had on private individuals. It found that “…in
relation to properties that are not owned by individuals but rather by the public
sector…,whilst the issues concerning the damage to property are relevant and the
impact on the area, the impact on the individuals as owners, is not a factor that will be
in play. This in our view [ICO] has the effect of lessening the public interest in
maintaining the exemption… .” (para 79) [NBC note – the status of the empty property
will impact on the exemption weighting]
The Tribunal went on to say that in relation to properties owned by individuals, “The
impact of crime on individuals as an inherent part of the public interest in this
circumstance is a significant factor and leads to the exemption outweighing the public
interest in disclosure in our view. “
Although it is clear that the Tribunal placed greater weight on the public interest in
protecting individuals from the impact of crime, this certainly does not mean there is
little public interest in protecting public authorities or corporate bodies against crime.
It’s merely that there is a heightened public interest in protecting individuals.
NBC line to take
The addresses of properties owned by individuals are personal data about those
individuals and must not be disclosed. Details of empty Council properties would
usually be disclosed or is already published. However ‘long term empty’ needs more
careful consideration as such properties are more susceptible to criminal activity
FOI Practice Note - Empty properties
including vandalism, asset stripping and squatting. Without a decision to base advice
on the current stance is to withhold under section 31(1)(a).
Information Governance - Northampton 838536 / 837409
Releasing public information – Safeguarding personal information
ICO and Tribunal decisions
‘Empty Property Address Data’
S31(1)(a)
Further Information from ICO Knowledge Base ICO guidance - ‘Data Protection Technical Guidance – Determining what is
personal data’
Having heard evidence on the subject, the Tribunal was satisfied that “…knowing
the address of a property makes it likely that the identity of the owner will be
found.” (para 94)
The Commissioner had relied on the analysis of the Durant judgement to argue
that although it may be possible to identity the owner, this did not make the
address personal data. The reasons being two fold, (i) the focus of the information
was the property not the owner and (ii) “even if it was possible to connect an
individual to a particular empty property, this would not affect the privacy of the
individual… .” (para 95).
The Commissioner would not now stand by this position and has published new
guidance on what constitutes personal data, which provides a wider interpretation
of personal data than was originally adopted following the Durant judgement.
Obviously the council could identify the owners from the Council Tax register and
the Tribunal went onto conclude that, “The address alone, in our view, also
amounts to personal data because the likelihood of identification of the owner…. In
our view this information amounts to personal data because it says various things
about the owner. It says that they are the owner of the property and therefore have
a substantial asset. …The key point is that it says something about somebody’s
private life and is biographically significant.” The Tribunal went on to say that the
important question was “…what meaning or meanings the data may have in the
context of someone’s private life. Does the fact that Mr X owns a property
potentially worth several thousand of pounds say something about Mr X? In our
view it does, and the owner is the focus of that information.” (para 98)
Following this rationale it can be argued that addresses of all properties owned by
individuals will be personal data, not just empty ones. However it should be noted
that in some situations eg where an individual is the landlord of a rented house, the
address of that property is likely to be both personal data of the landlord and the
tenant.
The Tribunal’s decision was that the addresses of empty properties not owned by
individuals should be released together with the names of those owners.
.
FOI Practice Note - Empty properties
Information Governance - Northampton 838536 / 837409
Releasing public information – Safeguarding personal information