We have received quite a few helpline queries about the above Act and whether or not agents can refuse to supply tenant’s personal information to the police.
The key obligations provided to an agent are covered by Section 8 of the Misuse of Drugs Act 1971. Essentially an agent is not responsible for drug activity in a property where a reasonable person in position of the same information would not have been aware of the drug use. Agents are not expected to be an expert in the detection of drug paraphernalia but if a property has items within it which are well known to be used in association with drugs it would be no defence to say that they were not aware of the drug activity. Therefore if an agent genuinely believes that there is drug use at a property the safest course of action is to simply report it to the police. However agents should also be careful not to simply accuse tenants of drug use because the tenant possesses cultural items that the agent does not understand.
An important associated question is whether agents have to release information requested by the police when they are not aware of any illegal activity. This is where the Data Protection Act 1988 plays an important part. The Data Protection Act does not prevent you from disclosing information to the police. There is a partial exemption that allows you to provide personal information in order to prevent or detect a crime, or catch and prosecute a criminal. The agent is unlikely to hold much personal information about the tenant which will assist in a police investigation. However the exemption only applies if a failure to disclose the information would hinder the police investigation. In addition, the exemption only permits disclosure of information that is genuinely needed by the police for their investigation. It is not acceptable to give the police unfettered access to files.
On a practical level a decision to disclose to the police should be taken at a level which is senior enough that it is clear that the issue is being given appropriate weight by the organisation. The police should be asked to be specific about what they require and an attendance note kept of precisely what information is disclosed and to whom.
The Information Commissioners Office has provided guidance on this issue.