Appeal to Information Commissioner

Richard Thomas
Information Commissioner
Wycliffe House
Water Lane
Cheshire SK9 5AF

6 June 2005

APPEAL AGAINST LONDON FIRE & EMERGENCY PLANNING AUTHORITY’S REFUSAL TO RELEASE FIRE SAFETY INSPECTION REPORTS

Dear Mr Thomas

I would like to appeal the decision made by the London Fire & Emergency Planning Authority (LFEPA) to withhold data requested by me under the Freedom of Information Act 2000 and Environmental Information Regulations 2004. Specifically my request is for all fire safety inspection reports from the latest 12-month period (ending when my request is answered). My preferred format to receive this data is in electronic format.

You will see that in their first refusal, LFEPA failed to offer any reason why fire inspection reports did not come under the purview of the EIRs. The only rationale put forth was: ‘It is our view that this information does not come within the meaning of ‘environmental information’ (as defined by the Regulations) and thereby I am unable to consider the disclosure of fire safety inspection reports under these Regulations.’ This cannot be considered in any way a reasoned argument.

The burden of proof was therefore placed on me, a member of the public, to prove why this information should be disclosed. In fact, this is the opposite of what should have taken place. The default position in a democracy should in all cases be for disclosure, and if a public authority favours secrecy, the public authority must prove in law why information cannot be released (using reason, not the lame excuse ‘because I say so’) and, in most cases, how that secrecy serves the public interest. There can be few types of information that are more obviously in the public interest than fire safety inspection reports.

My request was rejected under Section 44 of the FOIA. The prohibition on disclosure is Section 21 of the Fire Precautions Act 1971, which makes disclosure to the public a criminal offence. There is no public interest test. This law is exactly the kind that should have been reviewed under the terms of the Act, but the Department for Constitutional Affairs, the government department in charge of implementing the Act, was unaware of this prohibition until I informed them of it last year while researching my book. In addition, the DCA is running years behind schedule to make such prohibitions compliant with the Act. So far only eight out of nearly 500 prohibitions have been changed or repealed.

In light of this, I focused my internal appeal on accessing the reports via the EIR as this law overrides statutory prohibitions in domestic legislation such as section 21 of the Fire Precautions Act 1971.

My request should be considered environmental for the following reasons: Fire involves the release of materials (energy, products of combustion, etc) into the atmosphere referred to in paragraph (b) of the definition of environmental information. These are emissions as defined by the European IPPC Directive . The by-products of fire are certainly likely to affect one or more of the elements of the environment referred to in paragraph (a) and fire inspections are measures likely to affect or designed to protect those things as stated in paragraph (c) – ‘measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements’. Finally, fire inspection reports and the process of fire safety enforcement relate directly to ‘the state of human health and safety…where relevant, conditions of human life.’ – paragraph (f).

LFEPA argues there is a difference between ‘built structures’ and ‘land’. The Information Commissioner’s own guidance does not make such a distinction , nor is there such a distinction in the definition of ‘land’ in the Interpretation Act 1978: ‘Land includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land’.

Finally, I take issue with LFEPA’s contention that, ‘a fire safety inspection report does not document how either human health & safety or a built structure may be affected by “elements of the environment”’. Common sense makes clear that fire safety inspection reports are conducted for the purpose of preventing both small and massive conflagrations, which by their very nature, emit noxious fumes and toxins into the air. Surely the primary purpose of these inspections is to prevent human death, which in most people’s minds is a ‘health & safety’ issue.

Death is a very real possibility. In 1987, 31 people died in the King’s Cross Tube station fire. The Fennell Report into the disaster found that many of the dangers had been identified in reports by the fire brigade, police and Railway Fire Prevention and Fire Safety Standards Committee. Yet there was one group of people who were kept in the dark about the danger: the Tube-travelling public. It is outrageous that 20 years later, the public still has no right to see these reports. What is there to hide? Citizens in America can access such inspection reports; in many jurisdictions these reports must be prominently displayed in a public place. It is about time the British public had a right to know details about the fire safety of the buildings they frequent.

I would appreciate acknowledgment of this complaint along with progress reports of this investigation at 28-day intervals as stated in your Memorandum of Understanding. I look forward to your timely decision on the matter.

Regards,
Heather Brooke

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