The “personal data” provisions under s. 40(2) FOIA and regulation 13 EIR can often be very difficult to apply, particularly in light of the Durant “notions of assistance”, namely biographical significance and focus. It is correspondingly difficult to predict how such arguments will fare before the Tribunal. Two recent cases offer good illustrations. Both saw the Tribunal order disclosure of property-related personal data which was deemed to be of “low inherent sensitivity”.
Exeter CC v IC and Guagliardo (EA/2012/0073) concerned a request for the addresses of all residential properties owned by or leased or rented to the Council. The Council refused the request. It was accepted that addresses constitute “personal data”, but the Commissioner considered it to be personal data of “low inherent sensitivity”. He found that disclosure would not breach any of the data protection principles. He ordered disclosure, subject to an exemption for addresses of properties allocated for housing those in need of protection.
The decision notice was upheld on appeal. The following aspects of its decision are notable (Tribunal comments appearing in italics).
As to the Council’s arguments for withholding the addresses:
- The Council had conducted a survey of residents’ attitudes to such disclosures, but the particular questions and answers did not assist the Tribunal.
- There was no clear evidence on the extent to which Council properties were already visually identifiable as such.
- “The Tribunal observes that who owns property is not a private matter. It has to be publicly recorded and available by way of Land Registry Records (although there is a fee for this information). There are many other ways that the ownership becomes public (e.g. local knowledge, press articles when properties are constructed, news articles and planning records).The Tribunal is satisfied that a tenant cannot therefore have a legitimate expectation that this information would not be disclosed.”
- The Council argued that disclosure of the list of addresses would identify the residents as Council tenants and, as such, vulnerable, for example to being targeted by those wishing to prey upon individuals who were in financial difficulty. There was, however, no evidence before the Tribunal that disclosure would add to the pre-existing risk of such behaviour.
- The only information (additional to the fact of the address) that can be discerned about any particular data subject by the disclosure of the disputed information was that they or their predecessor may have been financially unable to meet their housing needs at some time.
As to the arguments for disclosure:
- “Additionally we are satisfied that there is a proper distinction to be drawn between those living in a Council owned asset and private accommodation, because the Council are accountable to the public for the way they manage those assets and execute housing policy whereas a private landlord has no such additional public responsibility and that this must impact upon the reasonableness of any expectation that the Council would not publish this information.”
- Disclosure would enhance transparency in allowing the public to be aware of the Council’s assets (i.e. its housing stock). By knowing how many properties the Council owns and where, the public would be enabled to scrutinise the distribution of Council properties between localities, analyse whether factors (such as levels of educational attainment) are correlated with the extent of Council owned housing in a given area.
- Knowing the individual addresses would enable the public to see how Council properties are maintained, their state of repair and assess whether areas are under or over provided for.
- “The Tribunal adds that such disclosure would also enable the public to review the type of housing stock owned and used by the Council and ascertain whether it could be used more efficiently to meet better the needs of those in housing need. Analysis of the extent to which private rentals are over or under used and whether this provides value for money would also be enabled by disclosure of this information.”
Overall, the Tribunal agreed that addresses constitute personal data of “low inherent sensitivity”.
This is the second such case before the Tribunal. The Tribunal in Neath Port Talbot v IC (EA/2011/0037) ordered disclosure of the same type of information in another, less fully reasoned decision last year. While no First-Tier Tribunal decision is binding, the case for withholding such information seems nonetheless increasingly difficult to make out.
Building control applications
Martin and Karen Sharples v IC (EA/2012/0076) is a second recent case in the disclosure of personal data has been ordered in light of its “low inherent sensitivity”. The requesters sought information about building control applications made to Bolton MBC relating to roof conversions to residential properties in a specific cul-de-sac. The Council refused to provide the building control records and site visit notes, relying upon regulation 13 EIR (personal data). The issue was whether the residents/owners involved in those applications could be identified from the redacted records and notes and, if so, whether disclosure would breach any of the data protection principles.
The requesters argued that while they knew enough to identify the property owners from the requested information, a member of the public would not. The Tribunal was satisfied, however, that the owners could be identified – particularly given the availability of Land Registry searches, Google Earth and other ways to find out who lives where.
Like the Council residence addresses in the Exeter CC case however, this application information was considered to be personal data of “low inherent sensitivity”. Disclosure would not breach the data protection principles, in light of the following factors:
- The information was similar to the sort of information routinely provided to estate agents and in planning applications (which are made public)
- It would be discernible to a surveyor when the house changes hands
- Some of the information was visible to the naked eye
- Much of the information constituted confirmation of normal practice of construction to a fixed standard
- The data subjects had not been told they could expect confidentiality
- There was a legitimate public interest in transparency, in particular in being assured that the Council had properly assessed compliance whether the relevant regulations had been complied with
Many requests for personal data fail because the requester has not made out any or any sufficient legitimate interest in public disclosure of information impacting upon privacy. Sharples is interesting in that the emphasis worked the other way: the public interest does not appear to have been very pressing, but the personal data was sufficiently anodyne for disclosure to be the order of the day.