FOI Request: New business details (FOI-1442)
Good Afternoon, Please can I request some information from you. I would like any change of tenancy or change of business name within the last 60 days. Also any new business operating in a food premises within the last 60 days. Regards
Re: Freedom of Information Request.
Thank you for your request for information under the Freedom of Information Act 2000, received 9 September 2018. Your request has been considered and our response is in bold below.
You requested the following:
I would like any change of tenancy or change of business name within the last 60 days. Also any new business operating in a food premises within the last 60 days. Regards
The Council’s Response
The Council has considered your request and has concluded that whilst it does hold the information, after reviewing guidance provided by the Information Commissioner, it is considered that the information is exempt from disclosure under Sections 40 and 41 of the Freedom of Information Act 2000. It is important to note that any response given under the FOIA is a response into the public domain and not merely to you, the applicant. It is this perspective which must be taken into account.
Section 40(2) - personal data
Personal data of any other person (third party data) is exempt under Section 40(2) if disclosure would breach one of the principles of the Data Protection Act 1998. The first principle which states that personal data shall be processed fairly and lawfully and in particular shall not be processed unless at least one of a number of conditions set out in the Act is met. One of the conditions is that consent is required from the data subject to disclose information to a third party and another specifies that there should be no disclosure, unless such is necessary for the legitimate interests of the Council or third party seeking the information. This is an absolute exemption.
We have also considered that under GDPR, personal data is where an individual can be identified from the information we hold. It also states that ‘information you hold may indirectly identify an individual and therefore could constitute personal data.
The Council asserts that the names of any individuals (as opposed to companies) who owned or were responsible for properties, and their private addresses for correspondence, were exempt from disclosure under this exemption. This is because disclosure of such information would be unfair and thus breach the first data protection principle.
The Council asserts that the information withheld on the basis of section 40(2) constitutes personal data as it identifies, or could be easily used to identify, living individuals.
The Council asserts that the individuals will hold reasonable expectations that their data would only be used for the purposes of administering Business Rates. The individuals in question would suffer consequences upon disclosing this information because, where individuals are sole traders, information about their business may reveal information about their financial well-being. It is possible that some of the withheld information may not be sole traders, rather they may be directors of particular companies.
There is no easy method to accurately determine which parts of the database information relate to sole traders and which parts relate to directors of companies. The Council is therefore faced with a difficult dilemma. It could assume that none of the information concerns sole traders. Alternatively it could assume that all of the withheld information relates to sole traders. Neither solution is a perfect one. However in the circumstances such as this where personal data is concerned, the Council prefers to err on the side of caution. Therefore in the circumstances the Council has taken the approach that all of the information concerns sole traders. Having done so, in light of the expectations of the data subjects, and the potential consequences of the disclosure, the Council asserts that disclosure of the withheld information would be unfair. Thus such information is exempt on the basis of section 40(2) of FOIA.
Section 41 – Information provided in confidence
(1) Information is exempt information if—
(a) it was obtained by the public authority from any other person (including another public authority), and
(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.
(2) The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.
The information covered under this exemption was obtained by the council from another party (individual, a company, another public body/authority) or any other legal entity. The circumstances under which the information was provided to the Council and the nature of the information gives rise to obligations of confidence.
The exemption covers council documents (or parts of documents) if they contain confidential information provided by a third party (as detailed above). This information is covered by a common law duty of confidence and releasing this information would constitute a breach of confidence. In other words, if we disclosed the information, the provider or a third party could take the council to court.
The Council has taken into account the following documents and decisions relevant to this exemption:
3. Information Commissioner’s Decision Notice REF: FS50121245
4. Information Commissioner’s Freedom of Information Act – Awareness Guidance 2 – “Information provided in confidence”
5. Information Commissioner’s “Freedom of Information Act – the duty of confidence and the public interest”
All the above documents and decisions can be found at the Information Commissioner’s website www.ico.gov.uk.
It is accepted that you as the applicant, have an interest in the data requested. In deciding whether there is a legitimate public interest, however, it is the collective public interest as a whole that must be taken into account and not just the specific interest of the applicant. The guidance further states that there must be a genuine public interest, and not merely public curiosity.
The Council has in place adequate safeguards and procedures to regulate the administration of Business Rates. There are also relevant provisions within the Council’s constitution, and the Council’s Monitoring Officer is responsible for ensuring that the Council and its officers act within the law. The Local Government Ombudsman and the Audit Commission also externally regulate the Council’s activities. The Council consider that these established means of checks and balances safeguard any public interest in ensuring transparency and accountability, and it is not necessary to disclose the personal data of occupiers to meet the public interest.
Persons supplying the Council with personal data for the purpose of administering Business Rates and any applicable relief have a legitimate expectation to privacy, and protection from harm or distress. It would be unwarranted and contrary to those persons’ expectations and legitimate interests for the Council to disclose their personal data. When supplying their personal data those persons are aware that it will be used to administer Business Rates, but would not expect that their personal data would be released into the public domain.
The personal data in question was obtained by the Council for the purposes of the administration of Business Rates and the necessary processing this involves. It was not specified to the persons in question that the data may be disclosed into the public domain. Indeed, it is possible that some of the persons in question may not have supplied full information so readily if they were aware that their personal data may be disclosed into the public domain. In any case the Council considers that disclosure would also breach the second principle, as it would be incompatible with the purpose for which the personal data was obtained.
The information in question was obtained by the Council from both individuals and non-individuals such as a company. This part of the exemption is therefore satisfied. Section 41(b) requires the disclosure by the Council to constitute an actionable breach of confidence by that person. The information must therefore have the necessary quality of confidence and the Council asserts that it does. It is recognised in English law that an important duty of confidentiality is owed to taxpayers. This is what is commonly known as “taxpayer’s confidentiality”. This is a long established principle of common law, protecting taxpayer’s affairs against disclosure to the public, and has been recognised to be of utmost importance when dealing with the administration of tax and rates.
The Council is satisfied that the requested information is not trivial, nor is it available by any other means. If the Council were to disclose the requested information, individual Business Ratepayers could issue legal proceedings against the Council.
The Council asserts it would be excessive to override the duty of taxpayer’s confidentiality and disclose information relating to the affairs of business ratepayers. Your request for disclosure is therefore refused under section 41 of the Freedom of Information Act.
Appeals & Complaints Procedure
If you are dissatisfied with this response and wish to appeal, please write to the Information Management Team and this will be dealt with through our Internal Review procedure.
Information Management Team - Governance
London Borough of Hackney
Hackney Service Centre
1 Hillman Street
London E8 1DY
Your request for an internal review should be submitted to us within 40 working days of receipt by you of this response. Any such request received after this time will only be considered at the discretion of the Council.
If you are still not satisfied following the Internal Review, you have a right to appeal to the Information Commissioner at the contact details provided below.
Information Commissioner"s Office
Telephone: 01625 545 700
Information Management Team