On 23rd July the Chartered Institute of Environmental Health (CIEH), in conjunction with the Guardian, published a database of landlords who have been convicted of offences under the Housing Act 2004. This showed, for example, that one landlord has been prosecuted seven times for issues relating to disrepair and poor state of properties rented out. It also showed apparent regional discrepancies regarding prosecutions, with some councils carrying out only one prosecution since 2006.
This public interest investigative journalism was, however not achieved without a fight: in September last year the information Commissioners office (ICO) issued a decision notice finding that the journalists request for this information had been correctly refused by the Ministry of Justice on the grounds that the information was sensitive personal data and disclosure under the Freedom of Information Act 2000 (FOIA) would contravene the MoJ’s obligations under the Data Protection Act 1998 (DPA). Section 40(2) of FOIA provides that information is exempt from disclosure under FOIA if disclosure would contravene any of the data protection principles in Schedule One of the DPA (it also provides that it would be exempt if disclosure would contravene section 10 of the DPA, but this is rarely invoked). The key data protection principle is the first, which says that personal data must be processed fairly and lawfully, and in particular that the processing must meet one of the conditions in Schedule Two, and also – for sensitive personal data – one of the conditions in Schedule Three.
The ICO, in its decision notice, after correctly determining that information about identifiable individuals (as opposed to companies) within the scope of the request was sensitive personal data (because it was about offences committed by those individuals) did not accept the requester’s submission that a Schedule Three condition existed which permitted disclosure. The only ones which could potentially apply – condition 1 (explicit consent) or condition 5 (information already made public by the individual) – were not engaged.
However, the ICO did not at the time consider the secondary legislation made under condition 10: the Data Protection (Processing of Sensitive Personal Data) Order 2000 provides further bases for processing of sensitive personal data, and, as the the First-tier Tribunal (Information Rights) (FTT) accepted upon appeal by the applicant, part 3 of the Schedule to that Order permits processing where the processing is “in the substantial public interest”, is in connection with “the commission by any person of any unlawful act” and is for journalistic purposes and is done with a “view to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest”. In fairness to the ICO, this further condition was identified by them in their response to the appeal.
In this case, the information was clearly sought with a view to the future publication in the CIEH’s Magazine, “Environmental Health News” and the requester was the digital editor of the latter. This, the FTT decided, taken with the (objective) substantial public interest in the publication of the information, was sufficient to make disclosure under FOIA fair and lawful. In a passage (paras 28-30) worth quoting in full the FTT said
Unfit housing is a matter of major public concern and has a significant impact on the health of tenants. The Housing Act is a key mechanism for local authorities to improve housing standards and protect the health of vulnerable tenants. One mechanism for doing this is by means of prosecution, another is licensing schemes for landlords. Local authorities place vulnerable families in accommodation outside their areas tenants seek accommodation, The publication of information about convictions under the Housing Act would be of considerable value to local authorities in discharge of their functions and assist prospective tenants and those assisting them in avoiding landlords with a history of breaches of the Housing Act.
The sanctions under the Housing Act are comparatively small and the opprobrium of a conviction may well not rank with other forms of criminal misbehaviour, however the potential for harm to others from such activity is very great, the potential for financial benefit from the misbehaviour is also substantial. Breaches of the Housing Act are economically motivated and what is proposed is a method of advancing the policy objective of the Housing Act by increasing the availability of relevant information to key actors in the rented housing market – the local authorities as regulator and purchaser and the tenants themselves. Any impact on the data subjects will overwhelmingly be on their commercial reputations rather than more personal matters.
The Tribunal is therefore satisfied that not only is the disclosure of this information in the substantial public interest, but also any reasonably informed data controller with knowledge of the social needs and the impact of such disclosure would so conclude.
It is relatively rare that sensitive personal data will be disclosed, or ordered to be disclosed, under FOIA, but it is well worth remembering the 2000 Order, particularly when it comes to publication or proposed publication of such data under public interest journalism.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with..