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How EHN took on the Ministry of Justice and won

Tom Wall11/12/2014 - 13:00

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The MoJ refused EHN's requests
The MoJ refused EHN's requests

Tom Wall, EHN digital editor, reveals the backstory behind EHN’s efforts to obtain the government’s database of criminal landlords.

There was a drawn-out pause, then the gruff, slightly menacing, voice at the end of the line asked, ‘Who are you anyway?’

‘A journalist,’ I replied.

Another pause. ‘So you are a journalist… so what… what do you want from us?’

‘We've established that you have received the highest fine for a housing offence.’

It was the culmination of a year-long investigation that began with a conversation with a renter friend and a visit to a council intent on driving out rogue landlords. 

Last Christmas I was discussing rental market with a former Sunday Times reporter, who is still renting, in a crowded pub, a short walk from the roar and pollution of King’s Cross. 

The private rented sector had become the second largest tenure in England, home to around 4 million households. But, despite rising rents, conditions were often appalling. Over 30 per cent of rented homes were below the government’s decency standard for repair, warmth and facilities. Nearly 20 per cent had potentially life threatening category one hazards such as excess cold.

We agreed there must be a lot of rogue landlords making a lot of money from renting out unhealthy and dangerous homes.

What, I wondered,  if we could identify these people? Who would hold such information? Did councils have lists of prosecuted landlords? Could I use freedom of information laws to obtain the information?

My friend suggested a call to the Ministry of Justice (MoJ). They might, he pondered, keep court records, including landlord convictions.

I submitted a freedom of information to the MoJ request as soon as I got back in the office in January. It asked if the department had a database of private landlords found guilty of offences under the Housing Act 2004?

But it was only when I visited Newham in East London that I understood what was at stake. In the council’s sleek glass and steel headquarters, Russell Moffatt, Newham's operations manager, told me that the worst landlords were fleaing Newham. His team had launched at least 185 prosecutions since it established the first borough-wide licensing scheme in January 2013. But he warned that neighbouring boroughs would not necessarily be able to detect them and refuse licences as there was no central database of housing convictions.

In the meantime an official from the MoJ’s criminal justice statistics unit had come back with a disappointing response. He claimed the only way he could answer my request was to ask every court in the country to shift through their files in order to establish the particular circumstances of each case taken under the Housing Act 2004. That was clearly too expensive. I was turned down.

But the official let slip that there was something called the court proceedings database, which holds information on those found guilty for criminal offences in England and Wales. I submitted another FOI request asking for the names of all individuals found guilty under the housing act – not just private landlords.

This time they refused on different grounds. The MoJ claimed that disclosure would be in breach of the Data Protection Act. But I was not about to be put off – I had the scent of what we journalists call a good story. With the help of an excellent pamphlet called ‘FOIA without the Lawyer’ published by the Centre for Investigative Journalism, I composed an appeal to the MoJ.

Essentially I argued that the Data Protection Act allows for personal data like this to be disclosed where there was a substantial public interest. I contented that it would help councils target the rogues and help renters avoid the worst landlords.

But - quelle surprise - the MoJ manager came down on the side of his own officials. He claimed it was under no obligation to consider the public interest in disclosing the names. Instinctively I knew this was wrong as council press releases featuring the names of convicted landlords arrive every day in the EHN inbox. Also, why should convictions made in open court be withheld from the public?

In July I complained to the Information Commissioner. I pointed out – sorry to get technical here - that the Schedule to the Data Protection (Processing of Sensitive Personal Data) Order 2000 made it clear that sensitive personal data could be disclosed if there is a substantial public interest or if it was in connection with unlawful acts. 

The story I had sensed all those months ago arrived one autumn morning in a white envelope. It was the decision from the Information Commissioner. I read it twice before realising EHN had won a partial but important victory. The Commissioner had established that the MoJ database included companies as well as individuals. He ruled businesses are not entitled to the same protections as individuals.

‘The Commissioner has investigated and found that some of the withheld information does not constitute personal data. As section 40(2) cannot therefore apply , he orders disclosure of that information.’

And with those few strokes of his keyboard, the Commissioner made it harder for rogue landlords to evade councils.

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