Freedom of Information Act 2000 (FOIA)
7 March 2018
West Lancashire Borough Council
52 Derby Street
Decision (including any steps ordered)
1. The complainant has requested information held by West Lancashire
Borough Council (the council) relating to business (non-residential)
property rates data.
2. Whilst the council provided some information, it withheld certain
information under section 30(1)(a)-prevention and detection of a crime
and section 40(2)-personal information, of the FOIA.
3. The Commissioner has decided that whilst the council was correct to
apply section 31(1)(a), the public interest in the information being
disclosed outweighs that in maintaining the exemption in this instance.
However, the Commissioner has gone on to conclude that the council
has correctly applied section 40(2) to information relating to sole traders
4. The Commissioner requires the council to take the following steps to
ensure compliance with the legislation:
The council should disclose the withheld information to the
complainant with the personal data relating to sole traders and
partnerships redacted in accordance with section 40(2) of the FOIA.
5. The public authority must take these steps within 35 calendar days of
the date of this decision notice. Failure to comply may result in the
Commissioner making written certification of this fact to the High Court
pursuant to section 54 of the Act and may be dealt with as a contempt
Request and response
On 30 March 2017 the complainant wrote to the council and requested
information in the following terms:
‘In terms of the Freedom of Information Act of 2000, and subject to
section 40(2) on excluding personal data, could you please provide me
with a complete and up-to-date list of all business (non-residential)
property rates data for your local authority, and including the following
- Billing Authority Reference Code (linking the property to the VOA
- Firm's Trading Name (i.e. property occupant)
- Full Property Address (Number, Street, Postal Code, Town)
- Occupied / Vacant
- Date of Occupation / Vacancy
- Actual annual rates charged (in Pounds)
If you are unable to provide an absolute “Occupation / Vacancy” status,
please provide the Exemptions and / or Reliefs that a particular property
may be receiving.
We recognise that you ordinarily refuse to release these data in terms of
Regulation 31(1)(a). In November 2016, we appealed this class of
refusal - specifically as it relates to this request - to the Information
Commissioner’s Office and they issued a Decision Notice (FS50628943 -
https://ico.org.uk/media/action-weve-tak..., and FS50628978 -
https://ico.org.uk/media/action-weve-tak... on 28 February 2017 finding
that “it is not correct to withhold this information under Regulation
31(1)(a)”, and that “the public interest in the information being
disclosed outweighs that in the exemption being maintained”.
Note that these Decision Notices supersede Voyias v Information
Commissioner and London Borough of Camden Council (EA/2011/0007)
and Decision Notice FS50538789 (related to Stoke on Trent Council).
Please provide this as machine-readable as either a CSV or Microsoft
Excel file, capable of re-use, and under terms of the Open Government
I'm sure you get many requests for business rates and we intend to
update this national series every three months. Could we request that -
as more than 30% of local authorities already do - you update and
release this dataset via a dedicated page on your local authority website
or on an open data service. You should find that this reduces the time
and cost of this request process.’
7. The council responded on 10 April 2017 and provided the complainant
with some of the information he had requested. It advised that details of
individuals or sole traders had not been disclosed as it regarded this to
be third party personal information that was exempt under section 40 of
8. The council went on to say that section 40(2) provides that personal
information about third parties is exempt information, if one of the
conditions set out in section 40(3) is satisfied. It advised that under the
FOIA, disclosure of this information would breach the fair processing
principle contained within the DPA.
9. The council also confirmed that it had withheld any details that would
directly identify empty and unused property stating that this is a ‘crime
and is covered by section 31 of the FOIA.
10. On 14 April 2017, the complainant responded to the council to advise
that he did not agree that information relating to the occupancy status
of non-residential properties should be withheld. He referred to decision
notice FS50628978 (Royal Borough of Kensington and Chelsea)1 and
decision notice FS50628943 (Cornwall Council)2 to support his argument
that the information should be disclosed. In these two cases the
Commissioner accepted that section 31(1)(a) was applicable to details of
the occupancy status of non-residential properties, but concluded that
the balance of the public interest weighed in favour of the disclosure of
11. The council responded to the complainant on 16 May 2017. It advised
that it had dealt with his correspondence of 14 April 2017 as a request
for an internal review of its decision to refuse to provide information
relating to the occupancy status of non–residential properties.
12. The council confirmed that it maintained its previous position that this
information was exempt from disclosure under section 31(1)(a) of the
FOIA. It advised that there is ‘a risk of illegal drug use and production,
gang activity, arson, vandalism, theft or other anti-social behaviour at
the empty proper
ties if information as to their whereabouts is made
13. The council also confirmed that it had considered the public interest test.
It stated that, in its view, publication of the occupancy status of the
properties would lead to increased anxiety and fear of crime amongst
occupants of adjacent residential and non-residential properties. In
addition, it made reference to the subsequent likely targeting of the
empty properties by those engaged in criminal and anti-social
14. The council went on to say that both its efforts, and that of property
owners, to bring empty properties back into use to improve the local
communities and reduce crime and vandalism could be undermined,
should the information be disclosed.
15. The council finally stated that the circumstances of this case could ‘be
from those described within the two decision notices
referred to by the complainant in his correspondence of 14 April 2017. It
advised that in both those cases neither council had provided sufficient
evidence to support their arguments that the disclosure of the
information would prejudice the detection and prevention of a crime.
The council stated that, in contrast, it was able to provide such
Scope of the case
16. The complainant contacted the Commissioner on 9 June 2017 to
complain about the way his request for information had been handled.
17. The Commissioner’s investigation has focussed on whether the council
was correct to apply section 31(1)(a) to the information that has been
withheld relating to the occupancy status of non-residential properties.
18. If found to be necessary, the Commissioner has been prepared to then
consider the council’s application of section 40(2) to any remaining parts
of the request.
Reasons for decision
Section 31-law enforcement
19. Section 31 provides a prejudice based exemption which protects a
variety of law enforcement interests. In this case, the council considers
that section 31(1)(a) applies. This section states:
“Information which is not exempt information by virtue of section 30 is
exempt information if its disclosure under this Act would, or would be
likely to, prejudice-
The prevention or detection of crime,”
20. Consideration of this exemption involves two stages. Firstly, in order to
be engaged, the following criteria must be met:
the actual harm which the public authority alleges would, or would
be likely to, occur if the withheld information was disclosed has to
relate to the applicable interests within the relevant exemption;
the public authority must be able to demonstrate that some causal
relationship exists between the potential disclosure of the
information being withheld and the prejudice which the exemption
is designed to protect. Furthermore, the resultant prejudice which
is alleged must be real, actual or of substance; and
it is necessary to establish whether the likelihood of prejudice
being relied upon by the public authority is met-i.e., disclosure
‘would’ result in prejudice or disclosure ‘would be likely’ to result in
21. Secondly, this exemption is qualified by the public interest, which means
that the information must be disclosed if the public interest in
maintaining the exemption does not outweigh the public interest in
22. Given the above, the Commissioner will consider in the first instance
whether the relevant criteria for the engagement of section 31(1)(a), as
set out in the three limb test above, is satisfied. If this is the case, she
will then go on to consider the public interest test.
Does the harm envisaged relate to an applicable interest?
23. The relevant applicable interests cited in this exemption are the
prevention and detection of a crime.
24. The council has explained that the release of the occupancy status of the
relevant properties would increase the risk of them being a target for
criminals. It has gone on to refer to illegal drug use and production,
gang activity, arson, vandalism, theft or anti-social behaviour at the
empty properties, should information about their whereabouts be made
25. The Commissioner is satisfied that the harm envisaged by the council
does relate to an applicable interest, that being the prevention of crime
and therefore the first criterion of the three limb test has been met.
Is there a causal relationship between the potential disclosure and
prejudice to crime prevention?
26. The Commissioner must be satisfied that the nature of the prejudice is
“real, actual or of substance” and not trivial or insignificant. She must
also be satisfied that some causal relationship exists between the
potential disclosure and the stated prejudice.
27. The council argues that revealing which properties are vacant makes
them more vulnerable to crime as it would make it easier for criminals
to target them for misuse, vandalism, theft and damage without having
to seek out and find unoccupied premises. It cites the example of
criminal gangs that strip empty buildings of valuable materials and
28. The council has also made reference to ‘Voyias v Information
Commissioner and London Borough of Camden Council
3 (Voyias). In that case the First-tier Tribunal took into
account the view expressed by the police that if a property was empty it
would make it a ‘softer target’
worth considering for the removal of any
valuable material assets contained therein. The Tribunal concluded that
‘the availability of information about empty properties is bound to be of
some value to criminal property strippers and that there is some
evidence, although relatively light, that some of them might make use
29. The Commissioner acknowledges that, in this instance, there is logic to
the argument that the disclosure of a list of empty properties would
provide those intent on committing crimes associated with such
properties with an easy way to identify them. She therefore accepts that
there is some causal relationship between disclosure of the withheld
information and the prevention of crime. Moreover, the Commissioner is
satisfied that the resultant prejudice which the council claims would
occur can be correctly categorised as one that would be real and of
30. Given that the Commissioner is satisfied that the prejudice being
claimed is not trivial or insignificant and that there is a relevant causal
link, she has determined that the second criterion of the three limb test
has been met.
The likelihood of prejudice
31. The council has been explicit in saying that the disclosure of the
withheld information ‘would’, as opposed to ‘would be likely’ to,
prejudice the prevention of crime.
32. The Commissioner has issued guidance4 which explains that the terms
‘would’ and ‘would be likely’ have separate and distinct meanings when
considering the prejudice based exemptions contained within the FOIA.
33. ‘Would’ means to be ‘more probable than not’ and that there is a more
than 50% chance of the disclosure causing prejudice, even though it is
not absolutely certain that it would do so.
34. ‘Would be likely’ refers to a lower probability of prejudice occurring than
‘would’. There must still be a real and significant risk of prejudice, even
though the probability of prejudice occurring is less than 50%.
35. In this case, the council claims to have evidence which shows that the
disclosure of the information relating to the occupancy status of non-
residential properties would prejudice the prevention and detection of a
crime in the West Lancashire Borough area.
36. The council states that when it published the addresses of vacant
properties in around 2011, it experienced a high number of nocturnal
break-ins by criminal gangs who targeted metal, primarily copper, within
the units. The details of break-ins provided by the council are as follows:
Christmas 2010/New Year 2011: two units were broken into with
heavy duty electric cables taken and distribution boards
February 2011: a block of four units with a single heavy duty
supply suffered the same treatment as described above.
April 2011: one of the units broken into previously was targeted
again and the wiring which had been replaced was stolen. In the
same month another unit was broken into; all the copper pipework
was stolen and the boilers and loading door were damaged.
4 May 2011: five vacant units were broken into and all copper
pipework was removed.
5 May 2011: one of the units broken into previously was targeted
again and all the copper pipework was stolen.
37. The council states that it is apparent from the evidence that it has
presented that there is a risk to highlighting that premises are
unoccupied and that its direct experience of the crime subsequently
committed is a salutary lesson. It has stated that since it made the
decision to publish generic addresses, all such break-ins have ceased.
38. The Commissioner has considered the timing of previous information
requests made to the council for information relating to the occupancy
status of commercial properties available on the ‘whatdotheyknow’5
website. She notes that information was disclosed by the council in
response to such requests on the following dates:
10 January 2011: information disclosed relating to empty properties
with a rateable value greater than £2600.
4 August 2010: information disclosed relating to empty properties with
a rateable value of over £50,000.
20 May 2010: information disclosed relating to empty properties with a
rateable value of £18,000-£20,000.
20 May 2009: addresses and rateable values of empty commercial
39. Whilst the Commissioner is mindful of the fact that there may have been
additional requests that were not submitted via the ‘whatdotheyknow’
website, the council has not provided any further details in relation to
this for her consideration.
40. The Commissioner notes that the first break-ins referenced by the
council occurred in late December 2010/early January 2011 and
therefore took place before information was disclosed on 10 January
2011. Prior to that, the last disclosure of a list of empty properties by
the council (that the Commissioner is aware of) was on 4 August 2010,
and only concerned empty properties with a rateable value of over
41. Whilst there have been a number of disclosures of the occupancy status
of properties by the council since at least 2009, only details of incidents
of crime which took place between late December 2010 and early May
2011 have been provided for the Commissioner’s consideration. The
council has also confirmed that the crime statistics it holds only relate to
non-residential properties that it owns.
42. The council has been unable to provide reports of any incidents that
may have taken place between August 2010 and the end of December
2010, or prior to this. It has also been unable to confirm how many of
the properties targeted were included on any of the lists that were
43. The complainant has argued that certain statistical evidence he has
collated shows that a disclosure of empty non-residential properties
does not result in an increase in the level of crime committed.
44. The complainant states that whilst the number of public authorities that
have disclosed details held of vacant non-residential properties as a
consequence of his FOIA requests has increased from around 20% to
90%, there have been no known reports of any subsequent ‘vacant-
property-related crime wave’.
Although the Commissioner has been
unable to verify the accuracy of the complainant’s figures, she is aware
that a large number of authorities have provided the data to the
complainant in response to his request.
45. The complainant has also informed the Commissioner that, in response
to information requests, Thames Valley Police and North Wales Police
have provided him with information on incidents of crime that have been
reported affecting empty commercial properties in their areas (he has
advised that no other police forces recorded such data).
46. The complainant states that the information provided by North Wales
Police indicate that the ratio of crimes in occupied v vacant commercial
properties is almost 70:1, compared to an actual occupied v empty ratio
of 6:1. He states that this suggests that an occupied property is
therefore ten times more likely to experience an incident of crime than
an unoccupied one.
47. With regards to the data provided by Thames Valley Police, the
complainant argues that there appears to be no obvious correlation
between the councils that do (or do not) provide empty property data
and the recorded crimes committed on such property in each area. He
has provided the following statistics to support his view:
‘In 2015 Oxford had 4,038 commercial properties and suffered 2 cases
of empty commercial property crime at a cost of £1,259. In comparison,
they had 3,133 cases of crime committed in occupied business
premises, at a cost of £507,956.
By comparison, Reading, with 5,659 commercial properties suffered 2
empty commercial property crimes that caused no damage at all.
Oxford refuses to publish under Section 31(1)(a) while Reading
48. With regards to the barrage of break-ins described by the council, the
Commissioner believes it pertinent to note that there was a large rise in
the value of copper in early 2011, and that it was at one of the highest
ever recorded levels in February 20116. This appears to have had a
significant effect on the level of theft of copper throughout the UK at the
same time that the council reported an increase in break-ins at its
49. An article published in the Independent dated 27 February 2011
describes ‘an epidemic of copper thefts across the UK’
and states that
‘police recorded the highest level of copper thefts in January ’
50. A number of steps were taken nationwide to tackle the problem of
increasing copper theft in 2011, including the introduction of ‘Operation
Tornado’8 by British Transport Police. Attempts to deal with such crime,
together with a decrease in the value of copper, appears to have
contributed to a significant decrease in the number of reported thefts of
this metal by 20129.
51. Given all of the above, the Commissioner is not persuaded that the
evidence provided by the council is sufficiently compelling to conclude
that there was a direct link between its previous disclosures of details of
empty properties and the break-ins described. She is therefore not
persuaded that the disclosure of the information requested would
prejudice the prevention and detection of a crime.
52. Where the Commissioner does not accept that the public authority has
sufficiently demonstrated that prejudice would occur, she will then go on
to consider whether the lower level of prejudice ‘would be likely’
is applicable. It is important to note that this of a relevance as the level
of prejudice applied has an effect of any subsequent consideration of the
balance of the public interest test. The more certain the prejudice, the
greater weight it will carry when considering the public interest.
53. The Commissioner has taken into account the view taken by the First-
tier Tribunal view in the Voyias case that crimes relating to the
of valuable materials from empty properties is likely to
correlate more with some (larger) non-residential properties than with
residential properties. She accepts that this has some relevance to this
54. In addition, she has considered the details provided by the council
detailing the small number of break-ins committed on some of its empty
55. The Commissioner does accept that the opportunity for prejudice to
arise is more than a hypothetical or remote possibility. She is therefore
satisfied that the lower test of ‘would be likely’
to prejudice has been
met in this instance.
56. The Commissioner has therefore concluded that section 31(1)(a) is
engaged and has gone on to consider the public interest test required by
section 2(2) of the FOIA.
The public interest test
57. The test is whether “in all the circumstances of the case, the public
interest in maintaining the exemption outweighs the public interest in
disclosing the information”.
The public interest in the exemption being maintained
58. The council is of the view that whilst the information may be of interest
to a small number of individuals, it is not of interest to the public at
large, and it does not have a widespread impact on the public. It goes
on to say that, on the other hand, the impact of damage caused by
criminals at vacant units does impact on the wider public in terms of
resources to deal with these issues which ultimately come from the
59. The council has argued that there would be increased anxiety and fear
of crime and criminal activity amongst occupants of adjacent properties
as a result of making the information publicly available. It has gone on
to refer to the subsequently likely targeting of empty properties by
those engaged in criminal activity.
60. The council also makes mention of the potential negative effect on the
local economy (for example preventing business start-ups), the
aesthetic appearance of the estates in the West Lancashire district area,
and health and safety. It refers to an example scenario of larger
premises being set on fire, together with the knock on effect of the
potential spread of fire to neighbouring units which then further impacts
on the economy, employment etc.
61. The council states that the disclosure would affect the potential to
attract new businesses to the area, if crime and disorder on commercial
units were to further increase. It states that Skelmersdale (where most
of its industrial units are situated) has particularly high rates of
economic deprivation together with challenges around employment
62. In addition, the council has explained that its insurance did not cover all
the losses from the break-ins which meant that monies had to come
from the public purse.
63. In decision notice FS50628978 and FS50628943 the Commissioner
stated that commercial premises are more likely to have greater levels
of security than most residential premises. The council has advised that
it disagrees with this view arguing that, in terms of its own empty units,
there are limited security measures in place to protect those properties
which are unoccupied during the evening and night (when the reported
break-ins have occurred).
64. The council goes on to say that it would be imprudent to provide details
of vacant and therefore vulnerable commercial properties. It states that
to fully secure such properties against trespass, such as by sheeting up
all openings, would be prohibitively expensive and visually detrimental
to neighbouring premises. It also states that it makes viewing with
prospective tenants extremely difficult whilst also advertising that these
units are empty by virtue of them being screened up.
The public interest in the disclosure of the information
65. The council has advised that it has considered that there are public
interest arguments in favour of disclosure, confirming that it has taken
into account those that relate to transparency, the promotion of public
understanding of availability of council units, and potential interest in
expenditure on empty business rates.
66. When the complainant submitted an earlier request to the council on 14
March 2016 for the same information he included some explanation of
the purpose of his request. He stated that he was compiling a
comprehensive time series data base of business activity across the UK
which would require the dataset updated on a quarterly basis. He also
‘In terms of Public Interest, the purpose of our use of the data
requested is informing entrepreneurs and business seekers about
opportunities in empty premises when they are advertised for new
tenants. We combine local authority premises occupation data with
other data (from the Valuations Office and ONS) to develop forward
guidance on business potential in each empty business property.’
67. The complainant went on to say that combined data is made available
via online commercial property leasing intermediaries as a free service
to business seekers. He stated that his activity is supported by the Open
Data Institute and that he has received funding from the EU Open Data
Incubator to develop this service.
68. He also advised that there is a public interest in economic development
and improving opportunities for independent businesses and
entrepreneurs which would far outweigh any concern that the release of
the data identifying empty business properties may cause crime. He
‘unemployment and economic deprivation are often key to reducing the
potential for crime. Our intention is to support local economic
development initiatives through the use of these data.’
69. The complainant has explained to the Commissioner that he is now able
to use the data which approximately 90% of councils currently disclose
in relation to vacant non-residential units. He has advised that
commercial property developers, and inward investment teams at local
authorities, are using vacancy and socio-economic analysis produced
from the data he is publishing to guide investments and improve access
to opportunities for independent businesses and entrepreneurs.
70. He has gone on to say that researchers who normally investigate access
to residential housing have started looking at commercial vacancy data
where entire office blocks have remained empty for decades (as ‘land
banks’) pending conversion into residential homes. He states by way of
an example that after decision notice FS50628978 was issued, the Royal
Borough of Kensington and Chelsea disclosed data relating to vacant
non-residential properties. He states that this revealed that 22% of
2,885 office hereditaments are vacant in the council in comparison to
less than 1% offered for rental. The complainant states that this
discrepancy is of particular interest to researchers looking to understand
71. The complainant has also pointed out research: ‘British High Streets:
from Crisis to Recovery? A Comprehensive Review of the Evidence’ 10
Neil Wrigley and Dionysia Lambiri of the University of Southampton on
behalf of the Economic & Social Research Council. He states that this
review suggests that there is a lack of open data on town centre/high
street structures which affects research into the area as well as local
government’s response to retail issues on high streets. The complainant
argues that this request is a step towards adding open data on this
available for free. The research (at page 4) states:
“In part, these difficulties reflect the dominance of proprietary research
on topics which have considerable commercial value, and its
consequences in terms of a resulting lack of visibility of the true
spectrum of available research and findings. But, more widely, it also
reflects: the long slow demise of publically accessible open data’; the
rise and importance of ‘commercial data’ on town centre/high street
structures, and the constraints that having to fund use of commercial
data imposes on research.”
The Commissioner’s position
72. When considering the public interest arguments in support of an
exemption applying, the Commissioner can take into account the
severity and likelihood of prejudice identified, and this in turn will affect
the weight attached to the public interest arguments for the exemption
73. If a public authority can establish that prejudice ‘would’ happen, the
argument for maintaining the exemption carries greater weight than if
they had only established that prejudice ‘would be likely’ to happen.
74. In this case the Commissioner has determined that only the lower
standard of ‘would be likely’ to prejudice has been met. Whilst this
lessens the weight of those arguments for maintaining the exemption, it
does not necessarily mean that the balance of the public interest will
then lie in favour of disclosure. This will be dependent upon a number of
factors and the circumstances of the case under consideration.
75. In this instance the Commissioner has not been persuaded that the
evidence provided by the council is sufficient to show a direct link
between information disclosed in response to previous information
requests and the break-ins described. However, she does accept that it
is likely that information that reveals a property is empty will be useful
to a criminal.
76. The Commissioner has taken account of the fact that the break-ins
described by the council all occurred within one mile of each other and
were based in industrial areas. The council has described the area where
its industrial units are situated as one which has high rates of economic
deprivation together with challenges around employment levels.
77. Given this, it is the Commissioner’s view that there would be a higher
probability that vacant industrial units would exist in such an area. In
addition, there is a greater likelihood that these would be more
vulnerable to crime at a time where copper had a particularly high
value, and when the rate of theft of this metal was at an all-time high
78. The Commissioner also considers that the publication of a list of vacant
properties by a council is not the only way that an empty non-residential
property can be identified. In decision notice FS50628978 and decision
notice FS50628943 the Commissioner refers to commercial websites
which can be searched for details of commercial properties for rent or
purchase. These details can include maps and /or photographs of the
sites. Whilst the information may not specify whether the sites are
vacant or not, a motivated individual would be able to make checks on a
property to identify whether that is the case or not.
79. In addition, the complainant has also explained to the Commissioner
that he was able to obtain the same information he is requesting that
the council provide to him in relation to three different properties
(situated in a different borough), using a search of sources such as the
Valuation Office Agency, Companies House and estate agents via the
internet. He states that it had taken him approximately 20 minutes to
research and collate the information that he required, and this included
the occupancy status of the each property.
80. The Commissioner notes that the West Lancashire Borough Council
website advertises its commercial premises that are currently available
to rent11 and includes maps of the area where they are sited. It also
provides access to details of other commercial property and land to rent
in its area upon registration of basic contact details.
81. The council has advised the Commissioner that properties listed on its
website are identified in a generic manner and information about
addresses is only provided once an enquirer has supplied information
about themselves to enable the council to satisfy itself of the
identification of that person.
82. In this case, the council states that whilst it agrees that a motivated
individual may be able to identify potential empty properties from other
sources, they would not be able to determine conclusively whether or
not a property was unoccupied. It goes on to say that it does not want
to market the fact that its units are empty which would make it easier
for criminals to carry out their illegal activities.
83. Whilst the details published by the council may not provide explicit
confirmation that any one property is vacant, the Commissioner is
satisfied that the information included on its website, and on others
which advertise commercial units to let, could still provide criminals with
a good indicator of properties which may be potentially suitable for
break-ins, particularly if it is put together with other sources of
information. In addition, the Commissioner notes that often a property
is advertised ‘for immediate occupation’ which is a strong indicator that
it is likely to be empty.
84. In addition, the Commissioner is of the view that non-residential
properties are generally easier to identify as being vacant than domestic
properties. Often simply being locked up during the day with no obvious
signs of activity will indicate potential for the property to be empty. If
any shutters are down to aid the property’s long term security, this will
add to any suspicion that the property is vacant.
85. The Commissioner is also of the view that in most instances of organised
crime, a property would be checked for its occupancy status prior to any
break in. For example, security arrangements which may be in place in
relation to any one property would need to be checked out and this
would include the occupancy status of the property.
86. The council has also made reference to the ‘Local Transparency Code
12(the Code) in its representations to the Commissioner. It refers
to one part of the guidance which advises that when publishing local
government data, local authorities should ‘include no part of the address
except for the town and first 3 parts of the postcode, no land and
property gazetteer and easting or northing which may identify a
which is vacant and owned by the council. It states that this
reinforces the approach it has taken in this instance.
87. The Commissioner understands that the purpose of the Code is to
promote transparency and accountability in relation to how councils
spend public money, how assets are managed and how decisions are
made. Importantly, the Code states that it ‘does not replace or
supersede the existing legal framework for access to and re-use of
public sector information provided by the Freedom of Information Act
(and also certain other specified statute which provides a right of
access to, and use of, information).
88. The Commissioner, having considered the content of the Code, is
satisfied that it is still appropriate in this instance for her to determine
whether the council has correctly applied section 31(1)(a) of the FOIA
to the withheld information and whether the public interest weighs in
favour of withholding, or disclosing, the information in this instance. This
is because it is her view that the Code would not prohibit the disclosure
of the requested information under the FOIA, unless a relevant
exemption can be applied.
89. The Commissioner has considered the evidence provided to her by both
parties. She acknowledges that a list of empty commercial properties
may have the potential to be used for criminal purposes. However, the
fact that many other public authorities disclose the requested
information suggests that, generally speaking, the likelihood, severity,
and or frequency of such prejudice must be fairly low to those councils
that publish the information.
90. The Commissioner has also taken into account the statistics provided by
the complainant which suggest that incidents of crime on vacant
property tend to be rare and unconnected to any disclosures of lists of
empty properties by local authorities. However, it should be noted that
she has been cautious in the weight she has attached to such evidence,
given that the figures only applied to two out of forty three police forces
in the UK and neither covered the West Lancashire area.
91. The Commissioner accepts each case should be considered in isolation.
Even if a significant number of local authorities have disclosed similar
information to that requested in this case, it does not automatically
follow that all public authorities should disclose that information. She
needs to consider each individual complaint that she receives on its own
particular merits, taking into account the specific circumstances.
92. Having carefully considered all the information held in relation to this
particular case, she is not persuaded that the evidence presented by the
council makes it unique to the majority other councils with regard to the
potential prejudice caused as a result of the disclosure of the
93. In the Commissioner’s view, the evidence provided to show the direct
effect that the disclosure of a list of empty properties has on crime is not
as convincing as the council suggests it to be. The statistics it has
provided showing an increase, and subsequent decrease, in break-ins
where copper was stolen appear to coincide with a nationwide increase
and decrease in such crime over the same time period. In the
Commissioner’s view, this weakens the council’s arguments that the
information should be withheld on the basis of the prejudice the
prevention and detection of a crime.
94. The Commissioner has also taken into account the fact that that there is
already sufficient opportunity for criminals to identify vacant non-
residential premises. Vacant properties will always be vulnerable to
certain crimes and, whilst the Commissioner sympathises with the
council’s concern about the negative impact that such crimes have, it
has not provided sufficient evidence to show that disclosing the
information would have any direct effect on this.
95. The Commissioner has considered the public interest in favour of
disclosure and views this to be relatively strong in this instance. The
council argued that the information would only be of interest to a
number of individuals and could have a negative effect on the local
economy. However, the Commissioner is satisfied that the complainant
has sufficiently demonstrated that there would be economic advantages
from the disclosure of the information which would be of interest to the
wider public. Indeed, the disclosure of the information could provide the
opportunity to bring certain properties back into use and may address
some of the problems the council has suggested are experienced in
Skelmersdale, such as economic deprivation and unemployment.
96. The Commissioner therefore recognises a strong public interest in the
disclosure of the information due to the effects which the use of the
disclosed data could be put to. Outside of the direct intentions of the
complainant, there is a public interest in this information being
available. Even where business owners are not intending to use the
complainant's service, a list of vacant commercial premises within an
area will be of use to companies looking to develop their businesses
within a specific area.
97. The Commissioner’s decision therefore is that whilst the exemption in
section 31(1)(a) of the FOIA was engaged, in this particular instance the
public interest in the information being disclosed outweighs that in the
exemption being maintained.
98. In the council’s response to complainant dated 10 April 2017 it advised
that it was to withhold that information which would reveal the details of
individuals or sole traders. It stated that this information was deemed to
be the personal data of third parties and that to disclose such
information would ‘breach the fair processing principle contained in the
Data Protection Act 1998 (DPA)
99. The Commissioner would refer again to decision notice FS50628978 and
decision notice FS50628943 where consideration was given to same
information that has been withheld in this instance. In both those cases,
whilst the Commissioner decided that the list of vacant properties should
be disclosed, she went on to advise that a disclosure of any information
revealing the identities of sole traders and partnerships would not
comply with the first data protection principle and therefore section
40(2) was applicable to such data.
100. The Commissioner has concluded that the circumstances of this case are
sufficiently similar to take the same view in this instance. She therefore
considers that the council is correct to withhold that information which
relates to a sole trader or partnership under section 40(2) of the FOIA.
Right of appeal
101. Either party has the right to appeal against this decision notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
Tel: 0300 1234504
Fax: 0870 739 5836
102. If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.
103. Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this decision notice is sent.
Signed ……………………………………………… Andrew White
Information Commissioner’s Office