NFRS 2024 16 - Building inspections

You asked for

Please can you provide me with the building inspection reports that were carried out prior to the issuing of enforcement notices in relation to the following properties.

Queen's Medical Centre, Lenton Lane, notice issued 30/11/23
Viet 80s, Friar Lane, issued 21/12/23
The Litmus Building, Huntingdon Street, issued 25/3/24
Ascot House Residential House, Percival Road, Sherwood, issued 24/1/24
The Cottage Hotel, Easthorpe Street, Ruddington, issues 22/1/24
Copper Beeches Care Home, High Street, Collingham, issued 25/3/24
Muthu Clumber Park Hotel and Spa, Blyth Road, Worksop, issued 10/1/24

Our Response

Answer: - Please find attached the information we have determined can be disclosed.

Copper Beeches Care Home, High Street, Collingham, issued 25/3/24 has complied with their Enforcement Notice.

Some of the information within the disclosed inspection report has been deemed exempt by virtue of section 40(2) (Personal Information) of the Freedom of Information Act 2000.

Section 40: - Personal Information

(2) Any information to which a request for information relates is also exempt information if—

it constitutes personal data which does not fall within subsection (1), and
the first, second or third condition below is satisfied.

(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act—

would contravene any of the data protection principles, or
would do so if the exemptions in section 24(1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded.

(3B) The second condition is that the disclosure of the information to a member of the public otherwise than under this Act would contravene Article 21 of the GDPR (general processing: right to object to processing).

(4A) The third condition is that—

on a request under Article 15(1) of the GDPR (general processing: right of access by the data subject) for access to personal data, the information would be withheld in reliance on provision made by or under section 15, 16 or 26 of, or Schedule 2, 3 or 4 to, the Data Protection Act 2018, or
(b) on a request under section 45(1)(b) of that Act (law enforcement processing: right of access by the data subject), the information would be withheld in reliance on subsection (4) of that section.

Section 40 of the Freedom of Information Act 2000 is categorised as an Absolute and Class Based type exemption and therefore does not require a public interest test to be carried nor must Nottinghamshire Fire and Rescue Service articulate the harm in disclosure.

Nottinghamshire Fire and Rescue Service deems the remaining requested information exempt by virtue of Section 30(1)(b) Investigations and proceedings conducted by public authorities.

Section 30 - Investigations and proceedings conducted by public authorities.

Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of—
1. any investigation which the public authority has a duty to conduct with a view to it being ascertained—
  1. whether a person should be charged with an offence, or
  2. whether a person charged with an offence is guilty of it,
2. any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or
3. any criminal proceedings which the authority has power to conduct.

Section 30(1) can only be claimed by public authorities that have a duty to investigate whether someone should be charged with an offence, or the power to conduct such investigations and/or institute criminal proceedings.

Nottinghamshire Fire and Rescue Service derives its powers from The Regulatory Reform (Fire Safety) Order 2005 (RRO) PART 3 Section 25, which places a statutory duty on Nottinghamshire Fire and Rescue Service (NFRS) in relation to fire safety and grants powers to the service to do anything necessary for the purpose of carrying out their duties within the RRO and any regulations made under it as stipulated within the RRO.

It is an offence under Part 4 (Offences and Appeals) of the Regulatory Reform Order 2005 for any responsible person to fail to comply with any requirements imposed by the Regulatory Reform Order 2005.

Section 30 is classified as qualified and class-based exemption. This means Nottinghamshire Fire and Rescue Service are required to consider a public interest test but are not required to evidence the harm in disclosure of the requested information.

Section 30 is a class-based exemption. Information simply has to fit the description contained in section 30 to be exempt. There is no need for the information to prejudice, for example, the investigation or set of proceeding that it was obtained for. However, the exemption is subject to the public interest test. Where there would be no harm in releasing the information, or the public interest arguments in favour of disclosure outweigh those in favour of maintaining the exemption, it will need to be disclosed.

Public Interest Test

In favour of disclosure: Nottinghamshire Fire and Rescue Service acknowledges the public interest in promoting transparency and increasing awareness involving fire safety in premises that are covered by the Regulatory Reform Order 2005.

It is also expected of Nottinghamshire Fire and Rescue Service that it takes their duties seriously and robustly enforces the requirements laid down in the Regulatory Reform (Fire Safety) Order 2005 to make buildings safe for habitation or use.

The release of the information would assure the public that certain buildings duly adhere to these requirements and the public are appropriately informed, promoting transparency and accountability as a result.

In favour of non-disclosure: The release of fire safety inspection reports would prejudice the investigatory and prosecution processes. The Regulatory Reform (Fire Safety) Order 2005 (RRO) places a statutory duty on Nottinghamshire Fire and Rescue Service (NFRS) in relation to fire safety and grants powers to the service to do anything necessary for the purpose of carrying out their duties within the RRO and any regulations made under it as stipulated within the RRO.

An enforcement notice is a type of notice issued by the local authority fire and rescue service when they deem a building, or management of a building, to not be suitable and sufficient. Notices will need to be complied with within a given timeframe to avoid prosecution. Fire safety inspection information will have been created as part of a pre-investigation.

Fire safety inspections or audits are carried out following nationally agreed guidelines so that any advice given to the responsible person is consistent and proportionate to any risk to any premises that fall within the legislation. Where Nottinghamshire Fire and Rescue Service are of the opinion that, the responsible person has failed to comply with the requirements placed upon them by the Order an Enforcement Notice will be served.

The responsible person has a duty to ensure the health and safety of their employees and others, such as members of the public, who could be affected by the way the business is run. The purpose of an inspection is to sample how they are complying with your legal responsibilities imposed by the Regulatory Reform (Fire Safety) Order 2005 (the Order).

The public disclosure would risk prejudice to past, present or future investigations. Members of the public place their confidence in Nottinghamshire Fire and Rescue’s ability to protect certain information from disclosure under FOIA in order that investigations are not harmed.

Were an investigation to be prejudiced by a disclosure under the FOIA then this would undermine the rights of all, but most importantly the rights of any victims to justice. The ability to protect certain information from blanket disclosure under FOIA promotes information sharing between communities and Nottinghamshire Fire and Rescue Service; it follows that disclosure into the public domain of the requested information in the circumstances would erode public trust.

Enforcement data is also published via a national register Enforcement Register - NFCC which outlines the specific articles the premise is in contravention of in relation to the Regulatory Reform Order 2005. The public interest in the disclosure of the requested information is therefore lessened as the public already has the necessary information available to it.

Balance Test

Nottinghamshire Fire and Rescue Service accepts that there is a public interest in disclosure of fire safety inspection reports as it would promote transparency and accountability in how fire and rescue services carry out their responsibilities. A further argument in favour of disclosure is that it is in the public interest to disclose information about businesses which do not meet the required standards allows the public to make informed decisions on whether to reside or enter into those premises.

However, Nottinghamshire Fire and Rescue Service is mindful that the enforcement register provides the public with information about any building in contravention of the Regulatory Reform (Fire Safety) Order 2005 (RRO). This does, to an extent, allow the public to make informed choices about those buildings and so reduces the case for disclosure some what.

Additionally, there will always be a strong public interest in maintaining the exemption in section 30 where an investigation is ongoing. Whilst investigations and prosecutions are ongoing, public authorities require a safe space in which to operate and continue to conduct their investigation. A premature disclosure of their evidence could create media pressure which could interfere with the investigation. It could also create issues preparing and presenting any subsequent prosecution. It would provide some of the evidence which the service would seek to rely upon to the other party outside of the court led disclosure process, and potentially prior to any such case being brought, thereby potentially undermining its ability to build its case free from interference. It is also likely to undermine the ability of the service to be able to resolve the issues informally.