Building safety: UK government seeks to balance data protection concerns

But Katherine Metcalfe, building safety regulation expert at Pinsent Masons, said: “At the same time, the government has acknowledged the need for further collaborative work to be undertaken to ensure the policy takes into account of as many consultation concerns as possible and that effective guidance is produced to assist dutyholders with fulfilling their obligations.”

It comes after the government published its response to a consultation on proposals for improving the building safety regime for occupied higher-risk buildings. These included plans to give residents a stronger voice in the management of the safety in their buildings, as well as the creation of a ‘golden thread’ of information to help identify, mitigate and manage building safety risks.

Under the new building safety regime under consultation, each occupied higher-risk building will have an ‘accountable person’ responsible for ensuring that it meets certain safety standards and requirements, who must also provide residents and owners with fire safety information – as well as information on any actions that have been taken to mitigate various building safety risks.

The consultation considered a number of exemptions to providing information to residents, including where there are safety or data protection concerns or whether information may infringe intellectual property rights or a legally-binding obligation of commercial confidentiality. The consultation also set out scope for additional information to be provided upon request.

Respondents raised concerns that residents may not understand this additional information, and that the costs of obtaining and collating the information may be passed onto leaseholders. They also suggested that additional documents, such as Fire Risk Assessment and safety case reports, should be provided to residents and asked the government to consider the need to align the requirement to provide information to similar requirements under the 2005 Regulatory Reform Fire Safety Order.

In response, the government said it would set out requirements to ensure the information is intelligible and provided in accessible formats, adding that any additional costs to provide such information to residents would be minimal. The government said it was working with the Building Safety Regulator to develop guidance for the sector to clarify how these proposed requirements align with others under the 2005 Regulatory Reform Fire Safety Order.

Metcalfe said: “The responses to this part of the consultation demonstrate that the government is making the provision of information to residents a priority. They have the difficult task of balancing the need to provide clear and comprehensive information against concerns about overloading residents with technical information as well as data protection concerns and concerns around commercial sensitivity.”

She added: “While some concerns have been addressed as part of the response to the consultation, the government has made it clear that personal data will only be protected to an extent that still allows provision of information on building safety and that its priority remains ensuring residents have access to the relevant building safety information.”

Respondents were also concerned about the lack of guidance provided by the government regarding its proposals for golden thread information and how it should be managed by accountable persons.

The government said more guidance would be provided in due course regarding the information and documents that are appropriate to store as part of the golden thread, and how long information and previous versions of documents should be stored. It said accountable persons would not be required to use a single IT system but would need to ensure that whichever system they employed allowed for the transfer of information easily to external contacts, such as regulators.

The consultation also proposed introducing a rule requiring records of resident complaints to be stored as part of the golden thread information. Additionally, when contravention notices are issued, the government suggested that a copy should be sent to the to the landlord of the resident in question in cases where the accountable person is not their landlord.

Respondents raised concerns that storing information in relation to complaints would be an excessive administrative burden, adding that it may be difficult for accountable persons to contact landlords where they are required to share a copy of a contravention notice.

The government acknowledged these issues and said it would reduce the list of information and documents that are required to be stored and will only require that this information and documents are kept for seven years. It also agreed with respondents that copies should go to the owner of the flat, including where the owner is a leaseholder, when the notice is addressed to their resident tenant. 

Hannah Frost of Pinsent Masons said: “One of the aims of the reforms to the building safety regime is to ensure that residents’ complaints are appropriately handled and so storing information about complaints as part of the golden thread is central to achieving this aim.”

“Again, the government must ensure that the requirements it imposes do not become so burdensome that they are impossible for accountable persons to manage. We note this concern is reflected in the government’s response to the consultation where it amended the list of information accountable persons are required to store about complaints,” Frost added.

The initial consultation said the new rules might require accountable persons to share information and documents with each other and certain other people, including building work contractors and regulators. The government has also proposed that when an accountable person leaves their role, they should be required to hand over the golden thread information to their replacement.

The consultation found that respondents wanted clearer guidance about the timescales for sharing information with other people, and requested that up-to-date golden thread information should be handed over to a new accountable person prior to the existing accountable person leaving their role.

In its response, the government said timescales would remain flexible, and that sharing information “as soon as reasonably practicable” was satisfactory. However, the government added that each accountable person would be required to retain responsibility for the golden thread until they leave the role.

Metcalfe said: “The logistics of how and when golden thread information will be shared between outgoing and incoming accountable persons raised a lot of questions from respondents. Further consideration may need to be given to how this handover should be done most effectively but it is likely that, in practice, the process will differ considerably from building to building.”