Freedom of Information Act enables public authorities to disclose information on businesses.
MARK MILLER and PAUL MILTON examine some of the main effects of the Freedom of Information Act 2000 , the final key provisions of which came into effect on the 1 January 2005, on third party access to property records and information held by the Land Registry.
An increasing and unprecedented level of access to information held by public authorities was heralded in on the 1 January 2005 with the coming into force of the final provisions of the Freedom of Information Act 2000. Public authorities include all central government departments and local authorities (including planning authorities) as well as the Land Registry. Under these new provisions, any member of the public has the right to make a written request to a public authority to disclose information unless there are justifiable reasons against the disclosure.
How is the Land Registry affected?
Most information that is publicly available from the Land Registry will continue to be governed by the provisions of the Land Registration Act 2002 and the Land Registration Rules 2003. However, under the 2000 Act, a written request can now be made for information that is not routinely available as of right.
The ‘open register’ provisions of the Land Registration Act 2002 take into account the Freedom of Information Regime and allow anyone to obtain copies of documents submitted to the Land Registry.
Section 66 of the Land Registration Act 2002 provides that anyone may inspect or obtain copies of documents of title kept by the Land Registry. The regime applies to:
The existence of the new rights under the 2000 Act may not, in many situations, make a practical difference in relation to obtaining restricted documents from the Land Registry. However, there is the new right of recourse and appeal to a Head of Public Affairs and the Information Commissioner under the 2000 Act, which may assist.
Can a business protect information held at the Land Registry?
Where a business wishes to protect information held at the Land Registry it can apply for designation of all or part of a particular document on the grounds that it contains prejudicial information. “Prejudicial information” means either information that is likely to prejudice the commercial interests of the business if revealed or information about an individual that if revealed would be likely to cause substantial unwarranted damage or distress. Such information might include a request for comparable rental information but not information about the price payable for a piece of land.
Businesses will also be pleased to know that just because a member of the public has the right to request information this does not necessarily mean that the Land Registry must provide it. There are a number of exemptions which a business may take advantage of. With many of the exemptions, the Land Registry must determine whether the public interest in disclosure outweighs the public interest in maintaining the exemption.
There are 23 exemptions that restrict access to information under the Act but of significant relevance to the property industry are the confidentiality exemption and the commercial interest exemption. Section 41 of the Act exempts information in the possession of a public body which is protected by the law of confidence whilst section 43 exempts information whose disclosure would be likely to prejudice the commercial interests of any person.
However the legislation does not concern itself with the interests of anyone who may be affected by requests for information and does not require public authorities to inform businesses that they have received a request from a third party for information. The legislation does not even require a public authority to obtain the consent of a business before releasing the information to a third party. The onus is on businesses to approach public authorities for assurances concerning information that they already hold about them and the exemptions which might prohibit the release of any sensitive information if it were requested by a third party.
