FOI request (FOI-1932)
This is a request for information filed under the Freedom of Information
Please provide the following information in respect of all non-domestic
properties within the authority:
Full Billing Authority Reference Number (Including any preceding 00
Liability Start Date
Liability End Date
Charge Type or Occupied Status
Correspondence or Billing Address and Postcode
I would be grateful if you could provide this information within statutory
time limit of 20 working days. This would preferably be via email. I have
considered this request carefully, checking each request against the
exemptions in the Freedom of Information Act 2000 and analysing previous
Decision Notices issued by the Office of Information Commissioner. I would
also like to make it clear that I am not, at this stage, applying under the
Re-Use of Public Sector Regulations (SI 2005 No. 1515).
Where possible if the data could be provided in Excel or CSV (comma
delimited) format that would be preferable.
I look forward to your response and thank you for your attention in this
Re: Freedom of Information Request.
Thank you for your request for information under the Freedom of Information Act 2000, 15 November 2018. Your request has been considered and our response is in bold below.
You requested the following:
Please provide the following information in respect of all non-domestic properties within the authority:
• Liable Party
• Full Billing Authority Reference Number (Including any preceding 00’s)
• Liability Start Date
• Liability End Date
• Charge Type or Occupied Status
• Property Address
• Property Postcode
• Correspondence or Billing Address and Postcode
• SBRR Applied
• SBRR Date
I would be grateful if you could provide this information within statutory time limit of 20 working days
The Council’s Response
Your request has now been considered and we can confirm that whilst the Council does hold the information within the scope of your request, it considers that this information is exempt from disclosure under Sections 21, 31, 41 and 40(2) of the Freedom of Information Act. It is important to emphasise that in this context, any information disclosed under the Freedom of Information Act is a disclosure into the public domain over which the Council can exercise no control. It is not merely disclosure to the requester. It is this perspective which must be taken into account, and when discussing the risks of harm, the Council should not be taken to be meaning that it believes the requester personally will, or may, take the relevant action.
Section 21 – Information accessible by other means
Information is to be taken to be reasonably accessible to the applicant if it is information which the public authority or any other person is obliged by or under any enactment to communicate (otherwise than by making the information available for inspection) to members of the public on request, whether free of charge or on payment. This is an absolute exemption.
Please note that the complete rating lists for the London Borough of Hackney’s area can be found on the Valuation Office Agency’s (“VOA”) website at www.voa.gov.uk/. So far as it is relevant to your request, the property reference number, property address and property post code are all available via the VOA.
Accordingly, the Council is satisfied that part of the information you seek is already in the public domain and that the exemption at Section 21 of the Freedom of Information Act applies to that part of your information request.
Section 41 – Information provided in confidence
Section 41 of the Freedom of Information Act states:
(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.
The Council has taken into account the following documents and decisions relevant to this exemption:
1. Information Commissioners Freedom of Information Act – Awareness Guidance 2 – “Information provided in confidence”
2. Information Commissioners “Freedom of Information Act – the duty of confidence and the public interest”
The above documents can be found on the Information Commissioner’s website at www.ico.gov.uk .
The Council has applied section 41(1) to the part of your request that asks for the liable party, the corrspondence address, account and start dates, the charge type or occupied status, and information relating to Business Rates relief. This information was obtained by the Council from both individuals and companies and the Council considers that disclosure of information not already in the public domain would constitute an actionable breach of confidence.
The Council also considers that the information has the necessary quality of confidence. It is recognised in English law that an important duty of confidentiality is owed to taxpayers and this is known as “taxpayer’s confidentiality”. It is a long-established principle of common law, protecting taxpayers’ affairs against disclosure to the public, and has been recognised to be of the utmost importance when dealing with the administration of taxes and rates.
The Council is satisfied that the requested information at issue here is not trivial, nor is it available by any other means.
The duty of confidence is not absolute, and the courts recognise that confidential information may be disclosed where there is an overriding public interest in disclosure, or if the person to whom the duty of confidence is owed consents to the disclosure.
In the context of this request consent has not been provided. As to whether there is an overriding public interest, the Information Commissioner states in his guidance listed at 1 above that:
“the courts have taken the view that the grounds for breaching confidentiality must be valid and very strong. A duty of confidentiality should not be overridden lightly”
The Information Commissioner has produced further guidance upon the duty of confidence and the public interest test, listed at 2 above. The Council has had particular regard to the content of this guidance in dealing with your request.
It is stated at page 2 of the guidance that “the public interest test within the duty of confidence assumes that information should be withheld unless the public interest in disclosure outweighs the public interest in maintaining the duty of confidence”
Ratepayers provide information (including names and addresses) to the Council in confidence and receive rates calculations in confidence. They have a legal expectation that these confidences will be maintained. Disclosure of rate or tax related information into the public domain may discourage the provision of full information to the Council as it would remove that expectation that such confidences would be respected.
Furthermore there is a public interest in maintaining trust and preserving a free flow of information to the Council where this is necessary for the Council to perform its statutory functions relating to the administration of Business Rates and Council Tax. Such functions are undertaken for the benefit of the public.
Although there may be a public interest in scrutinising how the Council administers its business rates, the Council is unable to identify any more specific or weighty interests arising out of the particular request made. The request for disclosure is therefore refused under section 41(1) of the FOIA.
Section 40(2) - Personal data
Section 40(2) of the Freedom of Information Act states that personal data is exempt if its disclosure would breach any of the data protection principles contained within the General Data Protection Regulation and the Data Protection Act 2018.
The names of any individuals (as opposed to companies) and their private addresses for correspondence, are exempt from disclosure under this exemption. The withheld information on the basis of section 40(2) in this instance constitutes personal data as it identifies, or could be easily used to identify, living individuals.
This is because disclosure of such information would be unfair and thus breach the first data protection principle in Article 5(1)(a) of the General Data Protection Regulations. In deciding whether disclosure of personal data would be fair, and thus breach the first data protection principle, relevant factors include:
• The reasonable expectations of the individual in terms of what would happen to their personal data.
• The consequences of disclosing the information, i.e. what damage or distress would the individual suffer if the information was disclosed?
The Council considers that the data subjects will hold reasonable expectations that their data would only be used for the purposes of administering their Business Rates accounts. The individuals in question would suffer consequences to their privacy upon disclosing this information because, where individuals are sole traders, information about their business may reveal information about their financial well-being. There is no compelling public interest in disclosure of the withheld information. Persons supplying the Council with personal data for the purpose of administering business rates 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 their Business Rates (and any applicable reliefs, etc.), but they would not expect that their personal data would be released into the public domain.
The Council accepts 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 information relates to sole traders and which parts relate to directors of companies. Given the weighty requirements of personal data rights under the General Data Protection Regulations, where personal data is concerned the Council considers it appropriate to err on the side of caution.
Disclosure of the withheld information would be unfair. The information is therefore exempt on the basis of section 40(2) of Freedom of Information Act.
In addition to the above, any disclosure would also be for a purpose other than that for which the personal data was originally collected, contrary to Article 5(1)(b), and incompatible with the ratepayer confidentiality terms under which it was provided. It was not specified to the persons in question that their data might be disclosed into the public domain.
Disclosure would also breach the second principle, again as it would be incompatible with the purpose for which the personal data was obtained. For these reasons also, the information is exempt on the basis of Section 40(2).
Section 31(1)(a) – Prevention of Crime
You have also requested information regarding empty property status. The Council considers that the addresses of empty properties are exempt from disclosure on the basis of section 31(1)(a) (prejudice to the prevention or detection of crime).
The Council does not, in any case, hold the requested information in full. Although the Council’s Business Rates database contains information about commercial property owners who have applied for empty property business rates relief, the Council conducts irregular reviews of empty properties and also relies to an extent on owners providing information to the Council of any changes in occupancy. Therefore, some of the properties detailed on the database as receiving rate relief would have been occupied on the date of the request and thus the information on the database is not an accurate representation of what is “currently empty”. The Council has no obvious or easy way of actually establishing whether or not addresses listed on the business rates database as receiving rate relief are still actually empty. The business rates database is the only systematic method that the Council would have to locate information it may hold about empty properties. That is to say it does not have any separate record of properties that are empty but no business rates relief on the basis of empty status has been requested.
However, with regard to the information falling within the scope of the request that it does hold, the Council withholds the information on the basis of section 31(1)(a). The London Borough of Hackney has experienced instances of squatting and trespass in empty properties in the past and is aware that this has led to criminal activities and damage to those properties. Consequently as the Council has specific evidence that empty properties have been targeted for crime, for instance arson, and that this had potentially led to endangerment, the Council considers that the exemption is plainly engaged. Disclosure would be likely enable properties to be identified too easily and increases the risk of such properties being targeted for criminal activity, including arson, metal theft, waste dumping/fly tipping abstraction of utilities, squatting, etc.
Further, disclosure of the requested information would be likely to enable business relief fraud, by providing ready access to a single list of empty properties and the core information required to seek to fraudulently claim relief from the Council, and from public funds, by asserting that the property is no longer empty.
As stated above, disclosure would also enable anti-social behaviour such as squatting in empty properties, associated neighbourhood complaints, and endangerment to life and health by urban exploring and other trespass. These matters may not all be crimes in themselves, but do form part of the general public interest balance.
Providing a list of empty properties would provide those intent on committing crimes associated with such properties with an easy way to identify them. The resultant prejudice, which the Council believes would occur, is one that can be categorised as one that would be real and of substance.
Public interest in maintaining the exemption
o It is not in the public interest to disclose information that aids individuals to commit crimes.
o It is not in the public interest to disclosure information that aids fraud on the public purse.
o It is not in the public interest to disclose information that aids individuals to carry out non-criminal but unlawful action, such as trespass and squatting.
Public interest in disclosure of the information
o Disclosure would provide the public with a greater insight as to which types of properties within the borough benefits from business rates relief.
Balance of the public interest
There would be relatively limited insight provided by disclosure into the administration of business rates in the council. In contrast, the public interest in preventing crime and other anti-social behaviour is very strong indeed. The Council is firmly of the view that such interests are outweighed by the public interest in ensuring that criminals are not aided in using empty properties in the London Borough of Hackney for crime.
The public interest in maintaining the exemption outweighs the public interest in disclosing the addresses of the empty properties and the section 31(1)(a) exemption has therefore been applied.
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