A25/95

Refusal to release an assessment report relating to the feed pond at the Thermal Oxide Reprocessing Plant (THORP) at Sellafield

1.  	Mr X complained that the Health and Safety Executive (HSE) had denied him access to information to which he was entitled under the Code of Practice on Access to Government Information (the Code) by refusing to release to him a copy of an assessment they had made before being prepared to agree to British Nuclear Fuels Limited (BNFL) transferring irradiated nuclear fuel to and holding it at the feed pond at BNFL's Thermal Oxide Reprocessing Plant (THORP) at Sellafield.

2. 	My investigation began in June 1995 after I had obtained comments from the then Director General of HSE following the Member's referral of the complaint to me. An appendix to this report lists the abbreviations used in it with their meanings.

Statutory and general background
3.  	THORP is a plant which has been designed and built to reprocess used fuel from nuclear reactors. At the start of the process used nuclear fuel which has been kept in a storage pound at the Sellafield site is transferred to a feed pond where, while still under water, the fuel elements to be reprocessed are removed from their sealed containers, measured for radiation and prepared for subsequent reprocessing in later stages of the plant.

4. 	BNFL's Sellafield site is licensed by the Nuclear Installations Inspectorate (NII), a division of HSE, under section 3 of the Nuclear Installations Act 1965 (NIA 1965). The licence which has been granted to BNFL requires them to produce safety cases to justify the adequacy of safety during the design, construction, commissioning, operating and decommissioning phases for installations on their site, while various NII consents, approvals and agreements are also required under the licence before such phases can be implemented. The licence also gives NII the power to require BNFL to supply them with information. Assessment is the process whereby NII establish whether BNFL's safety case is adequate, thereby helping NII to decide whether the consents, approvals and agreements which BNFL need to obtain from them should be given.

5. 	Section 28(2) of the Health and Safety at Work etc Act 1974 (HSWA 1974) has the effect, subject to specified exceptions, of prohibiting HSE from disclosing relevant information without the consent of the person by whom it was furnished. In broad terms relevant information is defined as information obtained by HSE under the powers afforded by HSWA 1974 or furnished in pursuance of a requirement imposed by any other relevant statutory provision. Among those other relevant statutory provisions is NIA 1965. The specified exceptions include disclosure by the recipient of information to any person for the purpose of any function conferred on the recipient by or under any of the relevant statutory provisions (section 28(3)(b)).

6. 	Section 11 of HSWA 1974 sets out the general functions of HSE and of the Health and Safety Commission to whom HSE report. Under sub-section 11(1) the Health and Safety Commission (and by extension HSE) have the general duty, in addition to their other functions, "to do such things and make such arrangements as [they] consider appropriate for the general purposes" of Part I of HSWA 1974. The general purposes are those mentioned in section 1(1) of that Act of which the most important are -

(a)	securing the health, safety and welfare of persons at work;

(b)	protecting persons other than persons at work against risk to health or safety arising out of or in connection with the activities of persons at work.

Sections 11(2)(b) and (c) of HSWA 1974 also impose the following duties:

"To make such arrangements as [HSE] considers appropriate for the carrying out of research, the publication of the results of research and the provision of training and information in connection with those purposes [ie the purposes of Part I of HSWA 1974], and to encourage research and the provision of training and information in that connection by others;

To make such arrangements as [HSE] considers appropriate for securing that government departments, employers, employees, organisations representing employers and employees respectively, and other persons concerned with matters relevant to any of those purposes [ie the purposes of Part I of HSWA 1974] are provided with an information and advisory service and are kept informed of, and adequately advised on, such matters;".

7. 	The complainant has made past attempts to obtain from HSE information about THORP. In 1993 he made a request under the Environmental Information Regulations 1992 which implement EC Council Directive 90/313/EEC on the Freedom of Access to Information on the Environment, but was told that in HSE's view HSE had no statutory or other formal responsibility relating to the environment (my emphasis) in respect of licensed nuclear sites and that HSE were not a relevant person for the purposes of those regulations, so that the regulations did not apply to Mr X's request. HSE also maintained that, since the regulations did not apply to them (for the regulations override any statutory bar to the non-release of information, save where they explicitly permit the non-release) they were prohibited by law from disclosing the information sought because of the provisions of section 28 of HSWA 1974 (paragraph 5). That response led to complaints from Mr X to the then Secretary of State for Employment and to Directorate General XI of the European Commission. Subsequently, on 17 November 1994, the then Director General of HSE told Mr X that henceforward HSE would make available under the Environmental Information Regulations all environmental information they held, subject only to the exempted categories of information under the regulations themselves, whether or not the information was in areas where HSE had statutory responsibilities for the environment.

8. 	Meanwhile, on 7 June 1994 Mr X had had recourse to the Code in his attempts to obtain more information than had been published about THORP. He asked HSE for a copy of any assessment they had made of BNFL's probabilistic risk analysis for THORP.

HSE reasons for refusing access
9. 	On 15 July HSE refused that request citing Exemptions 2 and 11 in Part II of the Code as the grounds for their refusal. Exemption 2 covers "Information whose disclosure would harm the frankness and candour of internal discussion" and Exemption 11 information which inter alia relates to "incomplete analysis, research or statistics, where disclosure could be misleading or deprive the holder of priority of publication or commercial value".

10. 	On 20 July Mr X reformulated his request. He asked for a copy of the HSE assessment report which supported the licensing instrument issued in respect of the transfer to and holding of irradiated fuel at the feed pond at THORP. He also asked what other assessments in support of existing or proposed licensing instruments had been completed. In an interim reply on 17 August, which outlined the nature of the assessment concerned, HSE said that, before making a decision on the release of the document sought, they had written to BNFL requesting BNFL to inform them if they considered that any of the information included in it was covered by the Code exemptions relating to confidentiality. They promised a further reply by 15 September. Mr X was dissatisfied with the speed of HSE's response and he sought a review in relation to his unanswered request for information about other completed HSE assessments.

11. 	HSE next wrote back on 2 September. They said that a complete list of THORP licensing instruments which had had assessment reports prepared before their issue did not exist. They enclosed a list of the main hold points for THORP on which assessment reports had been prepared and asked whether that satisfied Mr X's enquiry or whether he wished to be given an estimate of the cost involved in preparing a more complete answer. On 8 September Mr X asked for an estimate. HSE subsequently told Mr X that since 1983 there had been about 50 licensing instruments which might relate in some way to THORP and that the estimated costs of compiling the information would be between £1,890 and £3,780.

12. 	Meanwhile, on 15 September HSE had sent the further response they had promised to Mr X's request of 20 July (paragraph 10). They said that BNFL considered that information contained in the assessment report was commercially confidential and exempt from disclosure under Exemption 13 of the Code. That exemption covers "Information, including commercial confidences, trade secrets or intellectual property whose unwarranted disclosure would harm the competitive position of a third party". (In this case that third party would be BNFL.) HSE said that they did not consider that there were public or health and safety policy grounds which would justify them in overriding that claim to confidentiality, though were Mr X to be more specific about the safety issues relating to the transfer of fuel to the THORP feed pond on which he sought information, they would see he received a response as quickly as possible, but a charge would have to be made.

13. 	On 16 September Mr X wrote back. He asked whether the assessment report was being withheld solely on the grounds of Exemption 13 and whether any part of the report which was not commercially confidential would be disclosed, notwithstanding any BNFL objections. He later asked what was the nature of the information which BNFL considered to be commercially confidential. When replying on 28 September HSE said that they had also considered his request for the release of the assessment report in the light of section 28 of HSWA 1974 to see whether they had had cause to override BNFL's wishes. They had concluded that, as the assessment report contained information which was relevant information for the purposes of section 28 (paragraph 5), its disclosure without BNFL's consent was prohibited by law. They also said that the question of the nature of the information which BNFL considered commercially confidential needed to be put to BNFL. They could not answer it without disclosing commercially confidential information.

14. 	Mr X argued in reply on 3 October that, as HSE's assessment report had been described by them as "information generated by HSE", it was doubtful it could be relevant information for the purposes of section 28 and that, even if it were, such information could be disclosed under the provisions of sub-section 28(3)(b) of HSWA 1974, given HSE's duties as set out in section 11 of that Act (paragraph 6). He also asked to be supplied with so much of the report as was not commercially confidential. On 12 October HSE made clear that they did not accept Mr X's arguments. They also said that a report with the commercially confidential portions excised would be "either meaningless or possibly misleading". (I take that to have been intended as an implicit reference to Exemption 11 - see paragraph 9.)

15. 	On 16 November Mr X wrote to the then Director General seeking a review of the refusal to supply the information he had sought. He asked for three decisions to be reviewed: (i) the refusal to provide a copy of the assessment report; (ii) the refusal to provide an edited copy of the assessment report, with the commercially confidential material removed and (iii) the refusal to tell him the broad nature of the information thought to be commercially confidential. He questioned whether HSE had used their own judgment or had simply accepted BNFL's assertions. He also questioned why, if HSE felt that section 28 of HSWA 1974 precluded all disclosure, that had not been made clear at the outset. When replying on 8 December the then Director General said that HSE's legal advice had confirmed that section 28 debarred disclosure in the absence of BNFL's consent. He promised, however, to invite HSE's Appeal Panel to review HSE's refusal to supply an edited copy of the assessment report. He also said that the assessment report represented internal advice to HSE's senior management, based on information about the plant's design and intended operation which the supplier of that information saw as commercially confidential. (I take that to have been intended as an implicit reference to both Exemption 2 - see paragraph 9 - and Exemption 13 -  see paragraph 12).

16. 	Mr X wrote back on 19 January 1995 saying that the dispute whether section 28 of HSWA 1974 precluded disclosure should be dealt with under the Code's review provisions, as it was a claim for the non-disclosure of information "whose disclosure is prohibited by or under any enactment" (Exemption 15(a) of Part II of the Code). That issue, too, should therefore be placed before HSE's Appeal Panel. Mr X also developed at length the reasons why he considered that disclosure was permitted under section 28 of HSWA 1974, even in the absence of BNFL's consent, and why his request to be given an outline of the nature of the information which was held to be commercially confidential raised different issues from his request for a copy of the assessment report itself. He also said that the section 28 argument could not be relevant to his request to be given an outline of the nature of the information which was held to be commercially confidential.

17. 	On 23 January the then Director General informed Mr X that HSE's Appeal Panel had held that it was reasonable for HSE to refuse to provide an edited version of the assessment report because, with the removal of material which was commercially confidential or whose disclosure was restricted by section 28 of HSWA 1974, the edited document would be potentially meaningless and therefore misleading. On 16 February he told Mr X that, while he appreciated that Exemption 15(a) in the Code concerned information whose "disclosure was prohibited by or under any enactment" the Code did not disturb existing statutory restrictions on disclosure nor, by extension, the method of challenging them. That was why that issue had not been put to HSE's Appeal Panel. He also gave reasons why HSE did not find compelling Mr X's argument that section 28 of HSWA 1974 permitted disclosure.

18. 	Mr X remained aggrieved by HSE's refusal to provide him with the information he had sought. Specifically his complaints as later put to me were that:

(i)	some of the information he had sought cannot be exempt from disclosure on the grounds that it is commercially confidential, and in particular not so much of it would be exempt as to render meaningless a report from which all commercially confidential material had been excised;

(ii)	section 28 of HSWA 1974 does not prevent the information's disclosure in the absence of BNFL's consent. Even "relevant information" can lawfully be disclosed for the purposes of HSE's functions under HSWA 1974, due to the provisions in section 28(3)(b). Given the terms of Exemption 15(a), whether information allegedly debarred from release under section 28 of HSWA 1974 can be released should be determined under the Code.

(iii)	HSE had unduly delayed their reply to his request of 20 July 1994 (paragraph 10);

(iv)	should the obstacles to disclosure cited by HSE be held to lack validity, disclosure was still liable to be blocked in practice through the imposition of prohibitive charges, given the charges already quoted by HSE in the course of their correspondence with him - see paragraph 11.

19. 	When giving me HSE's initial comments on Mr X's complaint the then Director General said that it had related to a document which had summarised for purposes of internal advice to HSE's senior management HSE's actions and assessments in relation to one regulatory decision in the overall licensing process for THORP. The regulatory process took the form of a prolonged interaction between NII and BNFL, the purpose of which was to satisfy HSE that the safety case for the next step that BNFL wished to take was acceptable and, in the meantime, to develop sufficient mutual confidence in the likelihood of a favourable judgment to enable BNFL to make preparations. The interaction might well occupy several years and give rise to thousands of documents, on hundreds of files or part files, and also include large numbers of informal and formal contacts, telephone calls etc. The information was intensely technical. The information likely to be required at one time or another from BNFL would include details of every aspect of BNFL's processes and designs that could be germane to safety, itself a fundamental attribute of the whole design. It was bound to include much information which BNFL would consider as affecting their competitive position, public standing, and perhaps other features of their commercial personality. The licensing process depended on such information being comprehensively, truthfully and unhesitatingly yielded, and public safety and the economy and effectiveness of the regulatory process depended on that.

20. 	A feature of the process, he said, was that to achieve a fair overview of the plant and its safety and of its results all the information had to be considered as a single whole. In effect the licensing process involved a mass of decisions reached on an expert and discretionary basis, any one of them in principle being open to debate but all of them taken together being designed to produce a result consistent with published standards of safety. Particular aspects could have the potential to be misleading unless taken in the context of the whole, or the potential to be placed accidentally or deliberately in a seriously misleading or disproportionate light. HSE were the public body whose duty it was to take the regulatory decisions on a discretionary basis in the public interest, subject to their accountabilities to the Health and Safety Commission, Ministers and Parliament. The THORP process itself rightly had been and remained the subject of intense public scrutiny, as had been the relevant standards of safety and the philosophy or reasoning on which they rested. Those issues had been examined before two major public inquiries (Sizewell and Hinkley Point), both of which had confirmed the integrity and results of the process, in the first case following a minute public examination of the way particular decisions were reached. A mass of information had been published by HSE about the process, about its philosophy and standards, about particular regulatory decisions under the site licence, and about other issues and recommendations. He said that he was making those remarks without prejudice to HSE's acknowledged duties under the Code but simply to explain the background to Mr X's request and HSE's consideration of it. HSE did not lightly refuse requests for information:- over 500,000 requests were dealt with the previous year; a total of just over £400 was charged for work done in connection with disclosure; only a small proportion of cases was held to give rise to any difficulty and only in 15 cases had there been a refusal to disclose.

21. 	Referring to Mr X's specific complaints the then Director General said that Mr X had complained in effect that Exemption 13 could not exempt so much as to "render meaningless a document from which all commercially confidential material had been excised". However, Mr X was not in a position to judge, not having seen either the full or the abbreviated document. It was not HSE's duty to provide documents, but information, though HSE's intention was to be as helpful in that respect as their legal and other obligations permit. HSE had made clear from the outset their intention to make public a report on HSE's assessment of BNFL's probabilistic risk analysis of THORP; that would respond to Mr X's earlier and much broader request of 17 June 1994.

22. The then Director General also said that the duty under section 28 of HSWA 1974 not to release "relevant" information without the consent of its provider, except in relation to a function under a relevant statutory provision, was absolute and legally binding on HSE, irrespective of the Code. Section 28 of HSWA 1974 recognised the reality that HSE, by nature of their functions and powers, were likely at any time to be in possession of an immense amount of information that originated with and was the property of others. Powers such as to enter and inspect any premises, seize any document etc could only have been entrusted to HSE to enable their basic public functions of protecting people from harm to be carried out; and the counterpart of those powers in terms of the protection of the legitimate interests of those from whom information had been exacted were the provisions preventing the disclosure of information in section 28 of HSWA 1974. A further consequence of the statutory provision was that HSE would be liable at law for any damage arising from the neglect of their duties in that respect. The view of the HSE Solicitor on the applicability of section 28 was unequivocal.

23. 	The then Director General also said that BNFL too were clear that that was the position and that BNFL regarded themselves as having acted in the light of that throughout the licensing process. That BNFL were cognisant of the profound effect on the relationship between HSE and themselves (and perhaps on the discretionary basis of health and safety legislation) if BNFL's documents were to be released without consent was abundantly clear from what BNFL had said to HSE. BNFL had not merely objected to the information being released, but had provided reasons both generally and (later) in substantial detail as to how their commercial interests could be affected were it to be released. HSE had attempted to treat Mr X's request as one made under the Code. By refusing consent for the information which BNFL had provided to be released to Mr X BNFL had made it necessary also for HSE to consider Mr X's request under section 28 of HSWA 1974. Up to then HSE had been minded to grant the request, notwithstanding the probable applicability of a number of exemptions in the Code. However, the commercial confidentiality point had had to be explored before HSE could properly decide whether to disclose the information requested. HSE had not simply accepted BNFL's position that the information they had supplied was commercially confidential without pressing the company on the point and eventually seeing their detailed justification (though - due to the provisions of section 28 of HSWA 1974 - the latter was not in the end relevant to HSE's decision). HSE would not think it appropriate simply to accept a statement from BNFL until they were satisfied at the very least that BNFL had fully understood the implications of the request, and had carefully considered the position. It was very difficult for such a body as HSE, receiving large amounts of information for their own particular purposes, to judge its significance to the originator in other contexts. HSE had also needed to consider whether it would be possible to edit the document sought so as to overcome BNFL's concerns and/or remove relevant information from it. They had concluded that it would not be possible.

24. 	Finally, HSE's Solicitor had advised that the Code could not override a statutory restriction. Very careful attention had been given by HSE to the relevance of section 28 of HSWA 1974 after the objections of BNFL had made it clear that that section might apply. The decision to decline Mr X's request on section 28 grounds had not been lightly taken. It was quite true that "relevant information" could lawfully be disclosed for the purposes of HSE's functions. The question was what, for the purposes of section 28(3)(b), must HSE's functions be considered to be? HSE could not establish that a function had been laid upon HSE by statute that would have justified overriding the prohibition in section 28(2). The point would in the last resort be a matter for a court of law to determine.

25. 	The then Director General also said that the main reason why a full reply had not been sent to Mr X earlier was the decision taken at a senior level in HSE to explore the possibilities of disclosure rather than refuse the request outright (as HSE considered there were grounds for doing). That had meant consulting BNFL, who were not bound by the Code's reply target, and considering BNFL's response. The Code envisaged cases where the reply target might need to be extended because extensive consideration was required, and HSE believed this had been one such case. The interim reply was sent after 18 working days had expired, and that was within the time permitted under the Code.

26. 	The then Director General said that the charges HSE would have been obliged to impose had Mr X's request of 20 July been pursued in its entirety would have reflected only a proportion of the actual costs to them of releasing the information, most of which had originated prior to the Code and to the Government's announcement of its policies; nor had the information been arranged with the possibility of disclosure in view. HSE's envisaged charges were consistent with the terms of the Code.

Assessment
27. 	I have made it my business to obtain from HSE (a) a copy of the assessment report relating to the decision to issue the licensing instrument in respect of the transfer to and holding of irradiated fuel at the feed pond at THORP which Mr X sought and (b)  a copy of that assessment as it would read if all that information whose release BNFL feel they are entitled to prevent were removed from it. The very many other HSE documents necessary to facilitate a full understanding of these issues to be reached have also been made available to me and my staff. I must make it clear that only some of these documents are readily comprehensible to the lay person; nor are the issues involved by any means simple ones to assess.

28. 	That the assessment sought is an undifferentiated mixture of information obtained from BNFL and HSE's commentary on that information is clear beyond doubt. I am in no doubt that the unexpurgated assessment contains so much information from BNFL that, as regards its release, I need to assess whether Exemption 15(a) (see paragraph 17) or Exemption 13 (see paragraph 12) in Part II of the Code applies. There is, too, a possibility that certain other Code Exemptions could be relevant.

29. 	It is common ground between Mr X and HSE that section 28(2) of HSWA 1974 debars HSE from disclosing relevant information without the consent of the supplier, save where section 28(3) applies. For his contention that the information which BNFL supplies can be disclosed even without BNFL's consent Mr X relies on the argument that section 28(3)(b) applies because HSE are under a duty to provide information to the public, given the terms of sections 11(2)(b) and (c) of HSWA 1974 (paragraph 6), and providing information to the public about potential risks and the action being taken to deal with them is a function of HSE. HSE's own policy statement on Open Government declares on its first page that one of HSE's functions is making available "factual information on any health and safety matter with which we deal" and (later) that the provision of information "improves public understanding of health and safety and helps to strengthen public confidence in the health and safety system". Mr X also avers (i)  that, in effect, HSE accepted the validity of that argument as long ago as 1987 (although I note that HSE said then that passing information to bodies whose purposes were not concerned with health and safety did not apply), when HSE said that there would be but few occasions when HSE was required to withhold information which they wished to release, and (ii)  that the fact that HSE release information they consider themselves entitled to release, for example in public registers and published reports (including NII's quarterly inspection reports of nuclear sites) into various incidents, is evidence of the fact that HSE still accept that line. His contention is, as I understand it, that the way in which HSE are interpreting their role is tantamount to their saying that they can release information they wish to release but they are debarred in law from releasing information they do not wish to release. In other words, if the information sought by Mr X were suddenly to become a matter of public concern, HSE would then conclude that, if publication would restore public confidence, they would not be debarred from publishing it with the disclosure of the risk assessment sought then being justified by HSE, given the existence of section 11(2) of HSWA 1974. A binding interpretation of the relevant sections of HSWA 1974 can only be given by the courts. For the purposes of deciding whether HSE can invoke Exemption 15 in Part II of the Code as a justification for not releasing all the information sought, I now express an opinion. Since HSE have not referred me to any decided cases I take it that the point is not one on which the courts have yet been required to rule.

30. 	The HSE position, as I understand it, is that, although they feel able to make available any information in their possession when that information is necessary to counter an immediate risk to health and safety, the "functions exception" represented by section 28(3)(b) of HSWA 1974 can only be relied on when there is a specific health and safety purpose in releasing the information. It does not apply to disclosure to the public at large on general principles of openness or reassurance in health and safety matters. In other words, the disclosure of information per se cannot be said to be one of HSE's functions, though there is a requirement for HSE to provide sufficient advice and information to fulfil the general purposes of the Act. There is not, however, a requirement to provide detailed information and the restraints of section 28 of HSWA 1974 cannot be ignored. The test I must apply is whether release of the information in question is for HSE's health and safety purposes.

31. 	I do not doubt that the complainant, like the rest of society, has a genuine interest in health and safety issues. No doubt there is a health and safety purpose, from his viewpoint, in the information sought. I find less persuasive the claim that his purposes are concerned with health and safety in HSWA 1974 terms or that the effect of section 28(3)(b) and section 11 of HSWA 1974 is to enable HSE to release to him or to others all the information in HSE's possession for which a request might be made. In particular I am not persuaded that HSE's refusal to release to Mr X in the absence of BNFL's consent (which has not been forthcoming) the information supplied by BNFL cannot be sustained. I do not consider that I should hold that HSE are in breach of the Code in relying on Exemption 15 of Part II of it as a justification for refusing to release that information.

32. 	Since I have reached the view that Exemption 15 in Part II of the Code applies to the information supplied to HSE by BNFL the question whether Exemption 13 or other Exemptions in the Code will also apply to the information which BNFL has supplied becomes otiose. That still leaves open, however, the question whether that part of the assessment report which does not represent information supplied by BNFL should be released to Mr X. As to that, in my Annual Report for 1995 I drew attention to the desirability in future of producing reports structured in such a way as to facilitate release of parts of documents where other parts are withheld, now that the Code has been promulgated. However, the assessment report sought in this case was produced before the Code came into being. For reasons I can well understand it was written in a way which, though well-suited to HSE's purposes at the time, did not differentiate between information supplied by BNFL and HSE's own commentary on that information. In no sense is the HSE commentary self-standing. The then Director General of HSE explained to Mr X on 23 January 1995 (paragraph 17) that HSE's Appeal Panel had upheld HSE's refusal to supply Mr X with a version of the assessment report from which material supplied by BNFL had been excised, because what was left would be potentially meaningless and therefore misleading - in other words because Exemption 11 in Part II of the Code applies.

33. 	My staff and I have studied the expurgated version of the assessment report which led the HSE Appeal Panel to reach that conclusion and have reached the same conclusion. Once the information supplied by BNFL has been removed from the assessment report, what is left is an interrupted sequence of disjointed paragraphs, sentences and phrases having no clear relationship with each other and in no sense making up a coherent whole. No doubt the HSE assessment report might have been written in a self-standing form had a need for that been perceived at the time when it was written but the fact is that the report sought was not written in that way. What is left once the BNFL-supplied information has been removed can be compared with pieces of a jigsaw - but not enough to convey a meaningful understanding of the picture as a whole.

34. 	That still leaves the possibility that, with fewer excisions, enough of the full picture might emerge for Exemption 11 in Part II of the Code not to apply. At my request my staff have tried to produce an alternative expurgated version of the assessment report but have to admit that a reader could not obtain a meaningful understanding of the picture as a whole from it. To my mind Exemption 11 still applies.

35. 	It follows that in this case I do not uphold Mr X's complaint that HSE are (and were) in breach of the Code in refusing to release to him the information which he sought. That being so, the issue of any charges that might have been made for supplying it does not arise.

36. 	What about HSE's handling of Mr X's request? No doubt with the benefit of hindsight they would not have approached matters in quite the way that they did at the outset. The true nature of all the difficult issues inherent in the request was not fully appreciated by them at that initial stage. I do not find that surprising in the circumstances for the request raised issues of considerable complexity; issues which, in the Code context at least, HSE had not encountered before. That explains why their responses were not always as speedy as they would have wished. I am satisfied that, when considering Mr X's request, HSE were as concerned throughout to establish what information they could properly release as they were to establish whether there was information which they could not release. I consider that they approached the request fairly and in the spirit of the Open Government Code.

Conclusion
37. 	I have not upheld Mr X's complaint that HSE are in breach of the Code in refusing to supply him with the information which he sought in this case.

July 1996

Appendix A

BNFL	British Nuclear Fuels Limited

HSE	Health and Safety Executive

HSWA 1974	Health and Safety at Work etc Act 1974

NII	Nuclear Installations Inspectorate

NIA 1965	Nuclear Installations Act 1965

THORP	Thermal Oxide Reprocessing Plant