What information do local authorities have to provide in their register of licensed properties under the Housing Act 2004, and are there provisions that allow redaction of certain information?

The starting point for any such question is to look at what the current legislation states. In this instance, it means section 232(1) of the Housing Act 2004, which requires all local housing authorities to establish and maintain registers in respect of licences issued under parts 2 and 3, as well as temporary exemption notices and management orders. These registers must contain all the prescribed information and ensure that the contents are available at their head offices for public inspection. If requested, a certified copy of the register or an extract from it must be provided, for which a reasonable fee may be charged. They do not have to be available online. 

Pausing at that point, it is well established that local authority fees in this respect cannot be set to make a profit; they must reflect the cost of providing the information in whatever form. On this basis, it would be difficult to charge the same amount for an individual extract as would be charged for a copy of the whole register.

The prescribed information in England and Wales is set out in Regulation 11 of the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England/Wales) Regulations 2006. Regulation 11 has eight specific requirements, including the names and addresses of the licence holder (a) and the person managing the licensed HMO or house (b), and a summary of the conditions attached to the licence (e). The register must also contain reference to any matter referred to the First-tier Tribunal (FTT) (the Residential Property Tribunal in Wales) or Upper Tribunal (g), as well as any related such decision and its reference number (h). Tribunal cases at all levels are usually publicly available anyway, and it is common for those decisions to include the relevant personal information of the landlords, etc. 

Again, as a rule, where a public authority is under a duty to make certain information public, arguments about data protection issues may be less persuasive if relevant personal information is specifically included. 

In neither the 2004 Act nor the regulations is there any suggestion that the mandatory requirements can or should be redacted.

I can find no relevant binding case law on this issue, but I would draw colleagues’ attention to the decision in Masterman v Information Commissioner [2024] UKFTT 00289 (GRC). In that case, M had asked Brighton and Hove City Council for details of the licence conditions in respect of a particular HMO, one adjacent to M’s house. The local authority was prepared to supply these only in coded form, which told the recipient little. M went through the internal review process, but the local authority’s position remained that they were entitled to rely on section 40(2) of the Freedom of Information Act 2000 to exclude third-party personal information, and the licence conditions came within that definition. On M’s complaint to the Information Commissioner’s Office (ICO) for the conditions to be made available in plain English, that body upheld the local authority’s position. 

The ICO accepted that M’s application for the information was based on a legitimate interest, in that problems were being caused to his house by the condition of the adjacent HMO. The ICO also held that there was no other less intrusive way for M to obtain the information, so that the processing by the local authority met the ‘necessity’ test. However, the ICO was satisfied that access to the full licence conditions might reveal other personal information, so that on balance M’s legitimate interest did not outweigh the landlord’s expectations of privacy. 

Pausing again there, the ICO’s reasoning that this might indicate the landlord had been prosecuted, etc. did not appear to take into account that any prosecution would be a matter of public record regardless of the outcome of any court case.

M then appealed to the relevant FTT against the ICO’s decision. The FTT accepted that the details of the licence conditions could amount to personal information. The FTT also agreed with the ICO that a decision needed to be based on articles 5(1)(a) and 6(1)(f) of the UK GDPR. However, the FTT held that this was an application that should have been dealt with under the Environmental Information Regulations 2004 (EIR), and that the failure to do this meant the ICO had made an error of law. While those regulations contain similar provisions about disclosure of third-party information, Regulation 12(2) makes it clear that the presumption should always be in favour of disclosure. The FTT was clear that housing conditions came within the definition of ‘conditions of life’ set out in Regulation 2(1)(f). 

The FTT agreed with M that by applying for an HMO licence, the landlord could have no reasonable expectation that the relevant personal information would be kept private. The landlord should have expected that a summary of the licence conditions would be publicly available, as set out in the 2006 Regulations. The local authority, for its part, produced a list of the condition types, not a summary of the actual conditions as required. The FTT rejected the ICO arguments that publishing the conditions might reveal other personal information as hypothetical and tenuous. The purpose of the HMO regime was to protect renters and would-be renters, as well as other affected third parties, by ensuring that such properties would meet the relevant standards. 

Intriguingly, neither the ICO nor the FTT had any problems with the landlord’s name and address being published in this case – which many would see as being more intrusive than the licence conditions! 

The conclusion is that under EIR there must be clear reasons for arguing against the disclosure of such mandatory requirements, and the balance should start in favour of disclosure. Using data protection arguments to try to redact information for other purposes would only be reasonable when weighing the public interest for disclosure versus non-disclosure. Their use for other purposes could leave a local authority open to a judicial review challenge.

For further information on EIR, there are a couple of procedures available on RIAMS Libraries, which can be found here: Administration / Procedures / Information

• Environmental Information and Public Registers (AP7)

• Environmental Information: Handling Information Requests (AP6)

You can also find the procedure Register of Licences and Management Orders (HP16) in the Housing module: Housing / Procedures / Houses in Multiple Occupation (HMOs).